reconciliation: indigenous nation sovereignty v. crown sovereignty

lte-notesgt from fourarrowsoutlookcom 5 February 2010 Edition with a 2016 Addendum

Reconciliation Resolving Conflict Between Two Absolute but Opposing Rights

Indigenous Nation ldquoSovereigntyrdquo vs Crown ldquoSovereigntyrdquo

What do you think was the earliest case in which theSupreme Court of Canada talked of the need to reconcileAboriginal law and common law Can you think of anylater cases where that discussion is continued

This clear question was posed by Dr Michael Poslunsauthor of Speaking With Authority The Emergence of theVocabulary of First Nationsrsquo Self-Government and TheFourth World coauthored with George Manuel

The discussion which follows is an effort to answer thatquestion via a free-flowing exploration

One beginning point might be the Royal Proclamation1763 in which King George III directed all within hiscommand that the sovereignty of the indigenous nationswas to be respected absolutely that none of his subjectswere to enter upon indigenous lands and that anyextension of his sovereignty onto their lands was to takeplace only after a Treaty had been entered into

We jump ahead two centuries from 1763 It is 1982Canada has patriated its Constitution and in it the promisethat existing aboriginal and treaty rights are recognizedand affirmed in s 35 The Department of Justice is of thefirm belief that s 35 is a throw-away feel-good sectionsince there are no existing rights left

Not only was this the legal assumption but opinion hadit there was a new reality at this point in time which FirstNations simply had to face As the BC Court of Appealput it in Sparrow in 19861

The constitutional recognition of the right to fishcannot entail restoring the relationship betweenIndians and salmon as it existed 150 years ago Theworld has changed The right must now exist in thecontext of a parliamentary system of government and

a federal division of powers It cannot be defined as ifthe Musqueam Band had continued to be a self-governing entity or as if its members were notcitizens of Canada and residents of British Columbia

Any definition of the existing right must take intoaccount that it exists in the context of an industrialsociety with all of its complexities and competinginterests The ldquoexisting rightrdquo in 1982 was one whichhad long been subject to regulation by the federalgovernment It must continue to be so because onlygovernment can regulate with due regard to theinterests of all

The Supreme Court of Canada overturned that decision in1990 It ruled the word ldquoexistingrdquo had a great deal of2

meaning Earlier in 1990 the Supreme Court had issuedits decision in R v Sioui where the issue was whether3

Georges Sioui and a group of fellow Hurons could cutsome firewood build a fire and engage in sometraditional ceremonies in a provincial park The Siouiparty said their activities were ldquowithin their rightsrdquo andthe Quebec Government said arresting them was ldquowithintheir rightsrdquo

The case went to the Supreme Court of Canada PeterHutchins acting for the intervenor National IndianBrotherhood won the rare right to introduce new evidenceat the Supreme Court level ndash a document signed in 1760by General Murray Hutchins argued that the brief andinformal document constituted a treaty which guaranteedthe Hurons in exchange for their surrender Britishprotection and the free exercise of their religion customsand trade with the English

R v Sparrow 1986 CanLII 172 (BC CA) (1986) 32 CCC1

(3rd) 65 (BCCA) pp 90-1 overturned by Supreme Court of

Canada

[1990] 1 SCR 10752

[1990] 1 SCR 1025 1990 CanLII 103 (SCC) bull 70 DLR3

(4th) 427 bull 56 CCC (3d) 225 bull [1990] 3 CNLR 127 Found

online athttpwwwcanliiorgencasccdoc19901990canlii1031990canlii103html

lte-notesgt Reconciliation of Two Opposing Absolute Rights First Nations ldquoSovereigntyrdquo vs Crown ldquoSovereigntyrdquo -2-

an informative lte-notegt by ltfourarrowsoutlookcomgt 5 February 2010 Edition

The Supreme Court decision was written by JusticeAntonio Lamer prior to his appointment as Chief Justice

Justice Lamerrsquos Reasons for Decision followed this line

a) although the treaty gives the Hurons the freedom tocarry on their customs and religion it makes nomention of the territory over which these rights maybe exercised

b) as there is no express indication of the territorialscope of the treaty it must be interpreted bydetermining the intention of the parties at the time itwas concluded When the historical context is givenits full meaning the interpretation that is called for isthat the parties contemplated that the rights guaranteedby the treaty could be exercised over the entireterritory frequented by the Hurons in 1760 so long asthe carrying on of the customs and rites was notincompatible with the particular use made by theCrown of this territory

c) This interpretation would reconcile the Huronsneed to protect the exercise of their customs and thedesire of the British conquerors to expand it gave theBritish the necessary flexibility to be able to respondin due course to the increasing need to use Canadasresources in the event that Canada remained underBritish suzerainty and it allowed the Hurons tocontinue carrying on their rites and customs on thelands frequented to the extent that those rites andcustoms did not interfere with enjoyment of the landsby their occupier

d) a provincial park accessible to the public for thepurposes of education and cross country recreationwas a type of occupancy which is not incompatiblewith the exercise of Huron rites and customs Theactivities with which the respondents are charged donot seriously compromise the Crowns objectives inoccupying the park

e) Under s 88 of the Indian Act the Sioui party couldtherefore not be prosecuted since the activities inquestion were the subject of a treaty

ldquoAccordinglyrdquo Justice Lamer wrote

ldquoI conclude that in view of the absence of any expressmention of the territorial scope of the treaty it has tobe assumed that the parties to the treaty of September5 intended to reconcile the Hurons need to protect theexercise of their customs and the desire of the Britishconquerors to expand Protecting the exercise of the

customs in all parts of the territory frequented when itis not incompatible with its occupancy is in myopinion the most reasonable way of reconciling thecompeting interestsrdquo

Justice Lamerrsquos articulation of this task has endured in thejurisprudence namely choosing ldquofrom the variouspossible interpretations of common intention the onewhich best reconciles the interests of parties at the timethe treaties were made

ltltltltgtgtgtgt

The concept of reconciliation echoed in a second decisionby the Supreme Court of Canada shortly after Sioui InSparrow Chief Justice Dickson and Justice La Forest putreconciliation of federal power and First Nation rights assomething to be done voluntarily by the federalgovernment

There is no explicit language in the provision [s35(1)] that authorizes this Court or any court to assessthe legitimacy of any government legislation thatrestricts aboriginal rights Yet we find that the wordsldquorecognition and affirmationrdquo incorporate thefiduciary relationship referred to earlier and so importsome restraint on the exercise of sovereign power Rights that are recognized and affirmed are notabsolute

Federal legislative powers continue including ofcourse the right to legislate with respect to Indianspursuant to s 91(24) of the Constitution Act 1867 These powers must however now be read togetherwith s 35(1) In other words federal power must bereconciled with federal duty and the best way toachieve that reconciliation is to demand thejustification of any government regulation thatinfringes upon or denies aboriginal rights

ltltltltgtgtgtgt

Delgamuukw v British Columbia Justice McFarlane of4

the BC Court of Appeal in 1993 took a different run atthe issue

ldquo[284] During the course of these proceedings itbecame apparent that there are two schools of thought The first is an all or nothing approach which saysthat the Indian nations were here first that they haveexclusive ownership and control of all the land and

1993 CanLII 4516 (BC CA) 104 DLR (4th) 470 bull [1993] 54

WWR 97



resources and may deal with them as they see fit Thesecond is a co-existence approach which says that theIndian interest and other interests can co-exist to alarge extent and that consultation and reconciliation isthe process by which the Indian culture can bepreserved and by which other Canadians may beassured that their interests developed over 125 yearsof nationhood can also be respected The Indianplaintiffs have taken the first step in recognizing theimportance of other vested interests by not making aclaim to lands within the Territory held by othersunder a fee simple titlerdquo

In a separate decision in the same case Mr JusticeLambert wrote in dissent (and later quoted JusticeLaforest in the Supreme Court of Canada decision whichsupported Justice Lambertrsquos dissent)

So in the end the legal rights of the Indian peoplewill have to be accommodated within our total societyby political compromises and accommodations basedin the first instance on negotiation and agreement andultimately in accordance with the sovereign will of thecommunity as a whole

The legal rights of the Gitksan and Wetrsquosuwetrsquoenpeople to which this law suit is confined and whichallow no room for any approach other than theapplication of the law itself and the legal rights of allaboriginal peoples throughout British Columbia formonly one factor in the ultimate determination of whatkind of community we are going to have in BritishColumbia and throughout Canada in the years ahead

ltltltltgtgtgtgt

Reconciliation expressed in similar terms appeared againin 1996 with the Gladstone Van der Peet and Smokehousetrilogy As BC Justice DH Vickers pointed out a decadelater in Tsilqhotrsquoin essentially this was a revisiting of theCourtrsquos views in Sparrow

In defining the scope of Aboriginal rights protected bys 35(1) Lamer CJC re-interpreted the Sparrowtheory of reconciliation (a means to reconcileconstitutional recognition of Aboriginal rights withfederal legislative power) as a means to work out theappropriate place of Aboriginal people within theCanadian state

In R v Gladstone the Supreme Court of Canada upheld5

the Gladstonersquos appeal of convictions for selling herringspawn on kelp without a license

Lamer CJC continued at para 73

Because hellip distinctive aboriginal societies existwithin and are a part of a broader social political andeconomic community over which the Crown issovereign there are circumstances in which in orderto pursue objectives of compelling and substantialimportance to that community as a whole (taking intoaccount the fact that aboriginal societies are part ofthat community) some limitation of those rights willbe justifiable

Aboriginal rights are a necessary part of thereconciliation of aboriginal societies with the broaderpolitical community of which they are a part limitsplaced on those rights are where the objectivesfurthered by those limits are of sufficient importanceto the broader community as a whole equally anecessary part of that reconciliation

There the Supreme Court followed a similar line ofthinking as in Sioui but made it clear reconciliation had todo with ldquointerestsrdquo not ldquosovereigntyrdquo since allsovereignty was held by the Crown ldquo distinctiveaboriginal societies exist within and are a part of abroader social political and economic community overwhich the Crown is sovereign rdquo

Here the Gladstone Court slides into a third type ofreconciliation not reconciliation of rights notreconciliation of interests but what might be termedldquosocial reconciliationrdquo There is no indication the Court isaware of the difference categories of reconciliation whichare at play

In the context of social reconciliation aboriginal rightshad to be balanced against such interests as ldquothe pursuit ofeconomic and regional fairness and the recognition of thehistorical reliance upon and participation in the fisheryby non-aboriginal groups In the right circumstancessuch objectives are in the interest of all Canadians andmore importantly the reconciliation of aboriginal societieswith the rest of Canadian society may well depend on theirsuccessful attainmentrdquo

[1996] 2 SCR 723 Parallel citations 1996 CanLII 1605

(SCC) bull 137 DLR (4th) 648 bull [1996] 9 WWR 149 bull 109

CCC (3d) 193 bull 50 CR (4th) 111 bull [1996] 4 CNLR 65 bull 23

BCLR (3d) 155



There was no reciprocity to the concept because theamalgamation of the aboriginal society into the largersociety makes reciprocity no longer necessary ldquoThe largersocietyrdquo always wins even if the right being defended iscritical to survival of the aboriginal society and concedingthe right is of only marginal interest to ldquothe larger societyrdquo

As the Court said the purposes underlying aboriginalrights must inform not only the definition of the rights butalso the identification of those limits on the rights whichare justifiable Because distinctive aboriginal societiesexist within the Court said and are a part of a broadersocial political and economic community over which theCrown is sovereign there are circumstances in which inorder to pursue objectives of compelling and substantialimportance to that community as a whole (taking intoaccount the fact that aboriginal societies are a part of thatcommunity) some limitation of those rights will bejustifiable

That is what s 35 of the Canadian Constitution 1982 isall about the Court stated in paragraph 73

ldquoAboriginal rights are recognized and affirmed by s35(1) in order to reconcile the existence of distinctiveaboriginal societies prior to the arrival of Europeans inNorth America with the assertion of Crownsovereignty over that territory they are the means bywhich the critical and integral aspects of thosesocieties are maintainedrdquo

The mystical ldquoassertion of Crown sovereignty overCanadian territoryrdquo simply slides off the GladstoneCourtrsquos pen and is stated as an indisputable fact No effortis made to justify the statement Neither is there anyexplanation as to why the ldquodistinctive aboriginal societiesrdquoseem to have only ldquooccupiedrdquo the land without anymention of their sovereignty while the Crown is accordedsovereignty without prior occupation 6

Having set the stage with these potential polarities theCourt sets out what constitutes ldquocompelling andsubstantial objectivesrdquo which might allow the Crown tooverride ldquoaboriginal rightsrdquo and pay compensation forhaving done so pursuant to the Sparrow test After quotingfrom Van der Peet Chief Justice Lamer states in para 72

ldquo the import of these purposes is that the objectiveswhich can be said to be compelling and substantialwill be those directed at either the recognition of theprior occupation of North America by aboriginalpeoples or ndash and at the level of justification it is thispurpose which may well be most relevant ndash at thereconciliation of aboriginal prior occupation with theassertion of the sovereignty of the Crownrdquo

This revised theory of reconciliation then provides therationale for the wide range of legislative objectives thatcould meet the compelling and substantial requirement setout in Sparrow

The Court goes on to say that Aboriginal rights are anecessary part of the reconciliation of aboriginal societieswith the broader political community of which they arepart limits placed on those rights are where theobjectives furthered by those limits are of sufficientimportance to the broader community as a whole equallya necessary part of that reconciliation

ltltltltgtgtgtgt

The unbalanced definition of status of the two societiesone which is said to have had ldquoprior occupationrdquo and theother said to have ldquosovereigntyrdquo is further compounded inVan der Peet which also was decided by the SupremeCourt of Canada in 1996 Van der Peet sets out certain7

tests which the ldquoaboriginal partyrdquo is required to meet butwhich are not required of the ldquoCanadian partyrdquo

The asymmetry begins with the characterization of therights of the ldquoaboriginal partyrdquo as ldquoaboriginal rightsrdquo TheldquoCanadian partyrdquo is not required to demonstrate rightsbecause it has ldquosovereigntyrdquo

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

A footnote in Prof Kent McNeilrsquos ldquoReconciliation and the6

Supreme Court the Opposing Views of Chief Justices Lamer

and McLachlinrdquo 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 ldquodeftly avoidedrdquo this issue See Michael

Asch and Patrick Macklem ldquoAboriginal Rights and Canadian

Sovereignty An Essay on R v Sparrowrdquo (1991 29 Alta L Rev

498 John Borrows ldquoSovereigntyrsquos Alchemy An Analysis of

Delgamuukw v British Columbiardquo (1999) 37 Osgoode Hall LJ

537 Michael Asch ldquoFirst Nations and the Derivation of

Canadarsquos Underlying Title Comparing perspectives on Legal

Ideologyrdquo in Curtis Cook and Juan D Lindau eds Aboriginal

Rights and Self-Government The Canadian and Mexican

Experience in North American Perspective (Montreal amp

Kingston McGill-Queenrsquos University Press 2000) 148

R v Van der Peet [1996] 2 SCR 5077



relationship but rather in a fiduciary relationship

ldquoA purposive analysis of s 35(1) must take place inlight of the general principles applicable to the legalrelationship between the Crown and aboriginalpeoples This relationship is a fiduciary one and agenerous and liberal interpretation should accordinglybe given in favour of aboriginal peoples Anyambiguity as to the scope and definition of s 35(1)must be resolved in favour of aboriginal peoplesrdquo

The Court saw this relationship as ldquopre-existing doctrinerdquowhich was elevated ldquoto constitutional statusrdquo If howeverthis doctrine was ldquopre-existingrdquo it must have beenestablished when the ldquoDoctrine of Discoveryrdquo was stillfully at play In other words the adoption of the ldquofiduciaryrelationshiprdquo rather than the ldquobilateral relationshiprdquo isfruit picked from the tree of the Doctrine of Discovery

Understanding this point is critical to understanding thediminishing of the rights of the indigenous people fromrights in a bilateral context to being mere ldquoaboriginalrightsrdquo in a fiduciary relationship

As Van der Peet points out

ldquoAboriginal rights existed and were recognized underthe common law They were not created by s 35(1)but subsequent to s 35(1) they cannot beextinguished They can however be regulated orinfringed consistent with the justificatory test laid outin R v Sparrowrdquo

Van der Peet continues in paragraph 31

ldquo what s 35(1) does is provide the constitutionalframework through which the fact that aboriginalslived on the land in distinctive societies with theirown practices traditions and cultures is acknow-ledged and reconciled with the sovereignty of theCrown The substantive rights which fall within theprovision must be defined in light of this purpose theaboriginal rights recognized and affirmed by s 35(1)must be directed towards the reconciliation of thepre-existence of aboriginal societies with thesovereignty of the Crownrdquo8

The ldquodefinition of rightsrdquo phrase echoes back to theConstitution Act 1982 as it read in 1982 but no longerreads as it did then The purpose of the First Ministers

Conferences mandated by the Constitution was toldquoidentify and definerdquo the rights which were to beldquorecognized and affirmedrdquo by s 35 Those conferencesfailed to fulfil their mandate as year after year theyfoundered on the proposition advanced by federal andprovincial governments that the box of rights was emptyuntil such time as the parties had agreed as to which rightswould be put in the box while the First Nations Inuit andMetis parties to the conference insisted that the box wasalready full and the task of the conference was simply toconduct an inventory of the rights which the boxcontained

The Supreme Court of Canada decided in Van der Peet toset out the criteria for the unfulfilled task of ldquoidentifica-tion and definitionrdquo An ldquoaboriginal rightrdquo it said had tobe ldquointegralrdquo to the aboriginal society claiming the right

ldquoTo be integral a practice custom or tradition must be ofcentral significance to the aboriginal society in question ndashone of the things which made the culture of the societydistinctive A court cannot look at those aspects of theaboriginal society that are only incidental oroccasional to that society It is those distinctive featuresthat need to be acknowledged and reconciled with thesovereignty of the Crownrdquo Van der Peet continues

Note the asymmetry where a claim by an aboriginalsociety of a right conflicts with the Crownrsquos claim tojurisdiction the Crown is not required to justify that itsexercise of its jurisdiction is ldquointegral to Canadiansocietyrdquo

The Van der Peet Court saw its approach to s 35(1) asbeing supported by the prior jurisprudence of the Courtciting Calder as the case in point In that decision JusticeHall recognized the existence of ldquoaboriginal titlerdquobase onthe fact that the land to which they were claiming title hadldquobeen in their possession from time immemorial

Justice Judson in Calder had explained the origins of theNishgas aboriginal title as follows at p 328

ldquoAlthough I think that it is clear that Indian title inBritish Columbia cannot owe its origin to theProclamation of 1763 the fact is that when the settlerscame the Indians were there organized in societiesand occupying the land as their forefathers had donefor centuries This is what Indian title means and itdoes not help one in the solution of this problem tocall it a personal or usufructuary right What theyare asserting in this action is that they had a right tocontinue to live on their lands as their forefathers had

In R v Jacobs 1998 CanLII 3988 (BC SC) the court8

interpreted this to mean that ldquos 35(1) only recognizes and

affirms aboriginal rights that can be reconciled with sovereignty



lived and that this right has never been lawfullyextinguishedrdquo

Van der Peet also looked to Johnson v MlsquoIntosh the first9

of the decisions of United States Supreme Court ChiefJustice John Marshall on aboriginal title In the course ofhis decision the Chief Justice outlined the history of theexploration of North America by the countries of Europeand the relationship between this exploration andaboriginal title In his view aboriginal title is the right ofFirst Nations to land arising from the intersection of theirpre-existing occupation of the land with the assertion ofsovereignty over that land by various European nations The substance and nature of aboriginal rights to land aredetermined by this intersection As the Chief Justice wrote

On the discovery of this immense continent the greatnations of Europe were eager to appropriate tothemselves so much of it as they could respectivelyacquire Its vast extent offered an ample field to theambition and enterprise of all and the character andreligion of its inhabitants afforded an apology forconsidering them as a people over whom the superiorgenius of Europe might claim an ascendency

The potentates of the Old World found no difficulty inconvincing themselves that they made amplecompensation to the inhabitants of the new bybestowing on them civilization and Christianity inexchange for unlimited independence But as theywere all in pursuit of nearly the same object it wasnecessary in order to avoid conflicting settlementsand consequent war with each other to establish aprinciple which all should acknowledge as the law bywhich the right of acquisition which they all assertedshould be regulated as between themselves

This principle was that discovery gave title to thegovernment by whose subjects or by whose authorityit was made against all other European governmentswhich title might be consummated by possession

The exclusion of all other Europeans necessarily gaveto the nation making the discovery the sole right ofacquiring the soil from the natives and establishingsettlements upon it It was a right with which noEuropeans could interfere It was a right which allasserted for themselves and to the assertion of whichby others all assented

Those relations which were to exist between the

discoverer and the natives were to be regulated bythemselves The rights thus acquired being exclusiveno other power could interpose between them

In the establishment of these relations the rights of theoriginal inhabitants were in no instance entirelydisregarded but were necessarily to a considerableextent impaired They were admitted to be therightful occupants of the soil with a legal as well asjust claim to retain possession of it and to use itaccording to their own discretion but their rights tocomplete sovereignty as independent nations werenecessarily diminished and their power to dispose ofthe soil at their own will to whomsoever they pleasedwas denied by the original fundamental principle thatdiscovery gave exclusive title to those who made it

While the different nations of Europe respected theright of the natives as occupants they asserted theultimate dominion to be in themselves and claimedand exercised as a consequence of this ultimatedominion a power to grant the soil while yet inpossession of the natives These grants have beenunderstood by all to convey a title to the granteessubject only to the Indian right of occupancy

This reasoning assumes that the corollary of the Doctrineof Discovery is that the rights of the First Nations tosovereignty as independent nations are ldquonecessarilydiminishedrdquo In Canadian courts the rights are furtherdiminished to that only of ldquoprior occupantsrdquo

Successfully attacking this reasoning has been made easiernow that the its foundation the Doctrine of Discovery hasbeen rejected as invalid But until the corollary concept ofldquonecessary diminishmentrdquo is also vanquished there willbe a lack of symmetry in the relationship of the parties intheir quest for ldquoreconciliationrdquo

The Van der Peet court also quoted from ldquothe legalliteraturerdquo for support to its position that s 35(1) providesthe constitutional framework for reconciliation of thepre-existence of distinctive aboriginal societies occupyingthe land with Crown sovereignty It cited Mark Walterrsquoscomments on Delgamuukw v British Columbia that theessence of aboriginal rights is their bridging of aboriginaland non-aboriginal cultures10

ldquoThe challenge of defining aboriginal rights stems

21 US (8 Wheat) 543 (1823) 9

ldquoBritish Imperial Constitutional Law and Aboriginal Rights A10

Comment on Delgamuukw v British Columbiardquo (1992) 17

Queenrsquos LJ 350 pp 412-13



from the fact that they are rights peculiar to themeeting of two vastly dissimilar legal culturesconsequently there will always be a question aboutwhich legal culture is to provide the vantage pointfrom which rights are to be defined a morally andpolitically defensible conception of aboriginal rightswill incorporate both legal perspectivesrdquo

The Van der Peet Court also cited Professor BrianSlatteryrsquos suggestion ldquothat the law of aboriginal rights isneither English nor aboriginal in origin it is a form ofintersocietal law that evolved from long-standing practiceslinking the various communities and that such rightsconcern the status of native peoples living under theCrowns protection and the position of their landscustomary laws and political institutions 11

Thus bolstered with Canadian American and evenAustralian jurisprudence the Court was ready to adopt thebasic proposition it had put forward

ldquo the aboriginal rights recognized and affirmed bys 35(1) are best understood as first the means bywhich the Constitution recognizes the fact that prior tothe arrival of Europeans in North America the landwas already occupied by distinctive aboriginalsocieties and as second the means by which thatprior occupation is reconciled with the assertion ofCrown sovereignty over Canadian territory Thecontent of aboriginal rights must be directed atfulfilling both of these purposes rdquo

Unfortunately the tests the Court utilized for ldquoidentifyingAboriginal Rights in Section 35(1)rdquo would carry theindelible mark of ldquonecessary diminishmentrdquo howeverdiscredited or shaky that proposition might be

There would be more ldquonecessary diminishmentrdquo to comeVan der Peet holds that only ldquocrucial elementsrdquo ofaboriginal societies and these are further diminished byinsisting that they be proven to have existed ldquoprior tocontactrdquo and ldquoframed in terms cognizable to the Canadianlegal and constitutional structurerdquo

ldquoIn order to fulfil the purpose underlying s 35(1) ndashie the protection and reconciliation of the interestswhich arise from the fact that prior to the arrival ofEuropeans in North America aboriginal peoples livedon the land in distinctive societies with their own

practices customs and traditions ndash the test foridentifying the aboriginal rights recognized andaffirmed by s 35(1) must be directed at identifying thecrucial elements of those pre-existing distinctivesocieties It must in other words aim at identifyingthe practices traditions and customs central to theaboriginal societies that existed in North Americaprior to contact with the Europeans

Framing ldquoaboriginal rightsrdquo in ldquoterms cognizable to theCanadian legal and constitutional structurerdquo is anotheraspect of diminishment

ldquoAs has already been noted one of the fundamentalpurposes of s 35(1) is the reconciliation of thepre-existence of distinctive aboriginal societies withthe assertion of Crown sovereignty Courts adjudicat-ing aboriginal rights claims must therefore be sensi-tive to the aboriginal perspective but they must alsobe aware that aboriginal rights exist within the generallegal system of Canada To quote again Walters at p413 a morally and politically defensible conceptionof aboriginal rights will incorporate both [aboriginaland non-aboriginal] legal perspectives Thedefinition of an aboriginal right must if it is truly toreconcile the prior occupation of Canadian territory byaboriginal peoples with the assertion of Crownsovereignty over that territory take into account theaboriginal perspective yet do so in terms which arecognizable to the non-aboriginal legal system

There is no symmetry in this approach nor is anyjustification for lack of symmetry offered The reciprocalproposition is not required of the Crown The Crown doesnot have to reconcile the Canadian legal system withrights asserted or claimed by First Nations There is norequirement that the common law take into account ldquotheaboriginal perspectiverdquo

There is however one brief plea for symmetry

ldquoIt is possible of course that the Court could be saidto be reconciling the prior occupation of Canada byaboriginal peoples with Crown sovereignty througheither a narrow or broad conception of aboriginalrights the notion of reconciliation does not in theabstract mandate a particular content for aboriginalrights However the only fair and just reconciliationis as Walters suggests one which takes into accountthe aboriginal perspective while at the same timetaking into account the perspective of the commonlaw True reconciliation will equally place weight oneachrdquo

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 ifthe First Nation party is able to leap all the hurdles inorder to demonstrate the existence of an aboriginal rightwhile the Crownrsquos lane contains no hurdles at all

ldquoCourts must identify precisely the nature of the claimbeing made in determining whether an aboriginalclaimant has demonstrated the existence of anaboriginal right

in assessing a claim to an aboriginal right a courtmust first identify the nature of the right beingclaimed in order to determine whether a claim meetsthe test of being integral to the distinctive culture ofthe aboriginal group claiming the right the court mustfirst correctly determine what it is that is beingclaimed The correct characterization of the appellantsclaim is of importance because whether or not theevidence supports the appellants claim will depend insignificant part on what exactly that evidence isbeing called to support

To reconcile aboriginal societies with Crownsovereignty it is necessary to identify the distinctivefeatures of those societies it is precisely thosedistinctive features which need to be acknowledgedand reconciled with the sovereignty of the Crown

ldquo The time period that a court should consider inidentifying whether the right claimed meets thestandard of being integral to the aboriginal communityclaiming the right is the period prior to contactbetween aboriginal and European societies Becauseit is the fact that distinctive aboriginal societies livedon the land prior to the arrival of Europeans thatunderlies the aboriginal rights protected by s 35(1) itis to that pre-contact period that the courts must lookin identifying aboriginal rights12

ldquo It is not the fact that aboriginal societies existedprior to Crown sovereignty that is relevant it is thefact that they existed prior to the arrival of Europeansin North America As such the relevant time period isthe period prior to the arrival of Europeans not the

period prior to the assertion of sovereignty by the Crown13

The McLachlin Dissent in Van der Peet

It was Justice Beverly McLachlin ndash now Chief Justice ofthe Supreme Court ndash who wrote the most scathingdissenting opinion in Van der Peet addressing whatJustice Vickers later termed ldquothe more problematicaspectsrdquo of the Chief Justicersquos reasons She characterizedthe majority views as being ldquoincompleterdquo

Justice McLachlin quoted from the decision of ChiefJustice Dickson and Justice La Forest in Sparrow wherethat decision quoted Professor Lyon in An Essay onConstitutional Interpretation in giving a much more14

hearty interpretation to the meaning of s35

the context of 1982 is surely enough to tell us thatthis is not just a codification of the case law onaboriginal rights that had accumulated by 1982 Section 35 calls for a just settlement for aboriginalpeoples It renounces the old rules of the game underwhich the Crown established courts of law and deniedthose courts the authority to question sovereign claimsmade by the Crown

Precisely

Justice McLachhlin continued her attack

It may not be wrong to assert as the Chief Justicedoes that the dual purposes of s 35(1) are first torecognize the fact that the land was occupied prior toEuropean settlement and second to reconcile theassertion of sovereignty with this prior occupation

But it is with respect incomplete As the foregoingpassages from Sparrow attest s 35(1) recognizes notonly prior aboriginal occupation but also a prior legalregime giving rise to aboriginal rights which persistabsent extinguishment And it seeks not only toreconcile these claims with European settlement andsovereignty but also to reconcile them in a way that

As Prof Kent McNeil has observed in ldquoReconciliation and the12

Supreme Courtrdquo (2003) the promise of giving ldquoequal weightrdquo is

negated by the tests which ldquoreveal just how little aboriginal

perspectives really countrdquo

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 LJ 95 at p 100 Dickson CJ and14

La Forest J continued at p 1106



provides the basis for a just and lasting settlement ofaboriginal claims consistent with the high standardwhich the law imposes on the Crown in its dealingswith aboriginal peoples

Following these precepts this Court in Sparrowdecreed at pp 1106-7 that s 35(1) be construed in agenerous purposive and liberal way It represents asolemn commitment that must be given meaningfulcontent (p 1108) It embraces and confirms thefiduciary obligation owed by the government toaboriginal peoples (p 1109) It does not oust thefederal power to legislate with respect to aboriginalsnor does it confer absolute rights Federal power is tobe reconciled with aboriginal rights by means of thedoctrine of justification The federal government canlegislate to limit the exercise of aboriginal rights butonly to the extent that the limitation is justified andonly in accordance with the high standard ofhonourable dealing which the Constitution and the lawimposed on the government in its relations withaboriginals (p 1109) [emphasis added]

To summarize a court approaching the question ofwhether a particular practice is the exercise of aconstitutional aboriginal right under s 35(1) mustadopt an approach which (1) recognizes the dualpurposes of s 35(1) (to preclude extinguishment andto provide a firm foundation for settlement ofaboriginal claims) (2) is liberal and generous towardaboriginal interests (3) considers the aboriginal claimin the context of the historic way of life of the peopleasserting it and (4) above all is true to the position ofthe Crown throughout Canadian history as trustee orfiduciary for the first peoples of this country

This much appears from the Royal Proclamation of1763 RSC 1985 App II No 1 which set out therules by which the British proposed to govern theterritories of much of what is now Canada TheProclamation while not the sole source of aboriginalrights recognized the presence of aboriginals asexisting occupying peoples It further recognized thatthey had the right to use and alienate the rights theyenjoyed the use of those territories

The assertion of British sovereignty was thusexpressly recognized as not depriving the aboriginalpeople of Canada of their pre existing rights themaxim of terra nullius was not to govern here Moreover the Proclamation evidences an underlyingconcern for the continued sustenance of aboriginal

peoples and their descendants It stipulated thataboriginal people not be permitted to sell their landdirectly but only through the intermediary of theCrown

The purpose of this stipulation was to ensure that theaboriginal peoples obtained a fair exchange for therights they enjoyed in the territories on which they hadtraditionally lived an exchange which would ensurethe sustenance not only of the current generation butalso of generations to come

These arrangements bear testimony to the acceptanceby the colonizers of the principle that the aboriginalpeoples who occupied what is now Canada wereregarded as possessing the aboriginal right to live offtheir lands and the resources found in their forests andstreams to the extent they had traditionally done so The fundamental understanding ndash the Grundnorm ofsettlement in Canada ndash was that the aboriginal peoplecould only be deprived of the sustenance theytraditionally drew from the land and adjacent watersby solemn treaty with the Crown on terms that wouldensure to them and to their successors a replacementfor the livelihood that their lands forests and streamshad since ancestral times provided them

We apply the common law but the common lawwe apply must give full recognition to the pre-existingaboriginal tradition

I share the concern of LHeureux Dubeacute J that theChief Justice defines the rights at issue with too muchparticularity enabling him to find no aboriginal rightwhere a different analysis might find one Byinsisting that Mrs Van der Peets modern practice ofselling fish be replicated in pre contact Stolopractices he effectively condemns the Stolo toexercise their right precisely as they exercised ithundreds of years ago and precludes a finding that thesale constitutes the exercise of an aboriginal right

Madam Justice McLachlin also criticized that theapproach of Chief Justice Lamer in his decision wasldquoindeterminate and ultimately may speak more to thepolitically expedient than to legal entitlement

The imprecision of the proposed test is apparent Inthe right circumstances themselves undefinedgovernments may abridge aboriginal rights on thebasis of an undetermined variety of considerations While account must be taken of the native interest



and the Crowns fiduciary obligation one is leftuncertain as to what degree

At the broadest reach whatever the government of theday deems necessary in order to reconcile aboriginaland non aboriginal interests might pass muster Innarrower incarnations the result will depend ondoctrine yet to be determined Upon challenge in thecourts the focus will predictably be on the socialjustifiability of the measure rather than the rightsguaranteed

Courts may properly be expected the Chief Justicesuggests not to be overly strict in their review asunder s 1 of the Charter the courts should not negatethe government decision so long as it represents areasonable resolution of conflicting interests Thiswith respect falls short of the solid constitutionalbase upon which subsequent negotiations can takeplace of which Dickson CJ and La Forest J wrote inSparrow at p 1105

Again ldquordquoPreciselyrdquo

Madam Justice McLachlin made a third observation ldquotheproposed departure from the principle of justificationelaborated in Sparrow is unnecessary to provide thereconciliation of aboriginal and non aboriginal interestswhich is said to require it

ldquoThe Chief Justice correctly identifies reconciliationbetween aboriginal and non aboriginal communities asa goal of fundamental importance This desire forreconciliation in many cases long overdue lay behindthe adoption of s 35(1) of the Constitution Act 1982 As Sparrow recognized one of the two fundamentalpurposes of s 35(1) was the achievement of a just andlasting settlement of aboriginal claims

The Chief Justice also correctly notes that such asettlement must be founded on reconciliation ofaboriginal rights with the larger non aboriginal culturein which they must of necessity find their exercise Itis common ground that a morally and politicallydefensible conception of aboriginal rights willincorporate both [the] legal perspectives of the twovastly dissimilar legal cultures of European andaboriginal cultures Walters supra at pp 413 and412 respectively

The question is how this reconciliation of the differentlegal cultures of aboriginal and non aboriginal peoplesis to be accomplished More particularly does thegoal of reconciliation of aboriginal and non-aboriginal

interests require that we permit the Crown to require ajudicially-authorized transfer of the aboriginal right tonon-aboriginals without the consent of the aboriginalpeople without treaty and without compensation Icannot think it does

On this view the right imposes its own internal limit equivalence with what by ancestral law and customthe aboriginal people in question took from theresource The government may impose additionallimits under the rubric of justification to ensure thatthe right is exercised responsibly and in a way thatpreserves it for future generations There is no need toimpose further limits on it to affect reconciliationbetween aboriginal and non aboriginal peoples[emphasis added]

The second reason why it is unnecessary to adopt thebroad doctrine of justification proposed by the ChiefJustice is that other means yet unexploited exist forresolving the different legal perspectives of aboriginaland non aboriginal people In my view a justcalibration of the two perspectives starts from thepremise that full value must be accorded to suchaboriginal rights as may be established on the facts ofthe particular case

Only by fully recognizing the aboriginal legalentitlement can the aboriginal legal perspective besatisfied At this stage of the process ndash the stage ofdefining aboriginal rights ndash the courts have animportant role to play But that is not the end of thematter The process must go on to consider the non-aboriginal perspective ndash how the aboriginal right canbe legally accommodated within the framework of nonaboriginal law

It was Justice McLachlinrsquos view that reconciliationbetween Aboriginal and non Aboriginal peoples could beachieved in a way that was more respectful ofconstitutional principles She noted that Aboriginal andnon-Aboriginal perspectives have historically beenreconciled through treaties Thus she argued forreconciliation through negotiated settlements

Traditionally this has been done through the treatyprocess based on the concept of the aboriginal peopleand the Crown negotiating and concluding a justsolution to their divergent interests given thehistorical fact that they are irretrievably compelled tolive together At this stage the stage of reconciliationthe courts play a less important role It is for theaboriginal peoples and the other peoples of Canada to



work out a just accommodation of the recognizedaboriginal rights

This process ndash definition of the rights guaranteed by s35(1) followed by negotiated settlements ndash is themeans envisioned in Sparrow as I perceive it forreconciling the aboriginal and non aboriginal legalperspectives It has not as yet been tried in the case ofthe Stolo A century and one half after Europeansettlement the Crown has yet to conclude a treatywith them

Until we have exhausted the traditional means bywhich aboriginal and non aboriginal legalperspectives may be reconciled it seems difficult toassert that it is necessary for the courts to suggestmore radical methods of reconciliation possessing thepotential to erode aboriginal rights seriously

I have argued that the broad approach to justificationproposed by the Chief Justice does not conform to theauthorities is indeterminate and is in the finalanalysis unnecessary Instead I have proposed thatjustifiable limitation of aboriginal rights should beconfined to regulation to ensure their exerciseconserves the resource and ensures responsible use There remains a final reason why the broader view ofjustification should not be accepted It is in myrespectful opinion unconstitutional

The Chief Justices proposal comes down to this Incertain circumstances aboriginals may be required toshare their fishing rights with non aboriginals in orderto effect a reconciliation of aboriginal and nonaboriginal interests In other words the Crown mayconvey a portion of an aboriginal fishing right toothers not by treaty or with the consent of theaboriginal people but by its own unilateral act Iearlier suggested that this has the potential to violatethe Crowns fiduciary duty to safeguard aboriginalrights and property

But my concern is more fundamental Howwithout amending the Constitution can the Crowncut down the aboriginal right The exercise of therights guaranteed by s 35(1) is subject toreasonable limitation to ensure that they are usedresponsibly But the rights themselves can bediminished only through treaty and constitutionalamendment

To reallocate the benefit of the right fromaboriginals to non-aboriginals would be to

diminish the substance of the right that s 35(1) ofthe Constitution Act 1982 guarantees to theaboriginal people This no court can do [emphasisadded]

I therefore conclude that a government limitationon an aboriginal right may be justified providedthe limitation is directed to ensuring theconservation and responsible exercise of the right Limits beyond this cannot be saved on the groundthat they are required for societal peace orreconciliation Specifically limits that have theeffect of transferring the resource from aboriginalpeople without treaty or consent cannot bejustified Short of repeal of s 35(1) such transferscan be made only with the consent of the aboriginalpeople It is for the governments of this countryand the aboriginal people to determine if thisshould be done not the courts In the meantime itis the responsibility of the Crown to devise aregulatory scheme which ensures the responsibleuse of the resource and provides for the division ofwhat remains after conservation needs have beenmet between aboriginal and non aboriginal peoples

ltltltltgtgtgtgt

The final case in 1996 involving ldquoreconciliationrdquo wasAdams which provides an example of a situation where15

the broader public interest did not justify a prima facieinfringement of an Aboriginal right The result of that caseis 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 sportsfishing per se is a compelling and substantial objectivefor the purposes of s 35(1) While sports fishing is animportant economic activity in some parts of thecountry in this instance there is no evidence that thesports fishing that this scheme sought to promote hada meaningful economic dimension to it

On its own without this sort of evidence theenhancement of sports fishing accords with neither ofthe purposes underlying the protection of aboriginalrights and cannot justify the infringement of thoserights It is not aimed at the recognition of distinctaboriginal cultures Nor is it aimed at thereconciliation of aboriginal societies with the rest ofCanadian society since sports fishing without

1996 CanLII 169 (SCC) [1996] 3 SCR 10115



evidence of a meaningful economic dimension is notof such overwhelming importance to Canadiansociety as a whole (Gladstone at para 74) to warrantthe limitation of aboriginal rights [emphasis added]

ltltltltgtgtgtgt

In 1997 in Delgamuukw at the Supreme Court of16

Canada Chief Justice Lamer referred back to his Reasonsfor Decision in Van der Peet There he said he hadexplained reconciliation between prior occupation bydistinctive aboriginal societies and Crown sovereignty wasto be achieved by ldquotheir bridging of aboriginal andnon-aboriginal culturesrdquo (at para 42) Accordingly hesaid ldquoa court must take into account the perspective of theaboriginal people claiming the right while at the sametime taking into account the perspective of the commonlawrdquo such that ldquo[t]rue reconciliation will equally placeweight on eachrdquo (at paras 49 and 50)

Chief Justice Lamerrsquos closing remarks also referred toreconciliation The concluding sentence is quoted morethan the admonition to the Crown which preceded it

As was said in Sparrow at p 1105 s 35(1) ldquoprovidesa solid constitutional base upon which subsequentnegotiations can take placerdquo Those negotiationsshould also include other aboriginal nations which havea stake in the territory claimed

Moreover the Crown is under a moral if not a legalduty to enter into and conduct those negotiations ingood faith Ultimately it is through negotiatedsettlements with good faith and give and take on allsides reinforced by the judgments of this Court thatwe will achieve what I stated in Van der Peet supra atpara 31 to be a basic purpose of s 35(1) ndash ldquothereconciliation of the pre-existence of aboriginalsocieties with the sovereignty of the Crownrdquo Let usface it we are all here to stay

Unfortunately the majority reasons in Delgamuukw alsoexpanded the list of justificable infringements ofaboriginal title

In the wake of Gladstone the range of legislativeobjectives that can justify the infringement ofaboriginal title is fairly broad Most of those objectivescan be traced to the reconciliation of the prioroccupation of North America by aboriginal peopleswith the assertion of Crown sovereignty which entails

the recognition that ldquodistinctive aboriginal societiesexist within and are a part of a broader socialpolitical and economic communityrdquo (at para 73)

In my opinion the development of agriculture forestrymining and hydroelectric power the general economicdevelopment of the interior of British Columbiaprotection of the environment or endangered speciesthe building of infrastructure and the settlement offoreign populations to support those aims are the kindsof objectives that are consistent with this purpose andin principle can justify the infringement of aboriginaltitle

In the separate decision of Justices La Forest andLrsquoHeureux-Dubeacute in Delgammukw Justice La Forestwrote

On a final note I wish to emphasize that the bestapproach in these types of cases is a process ofnegotiation and reconciliation that properly considersthe complex and competing interests at stake Thispoint was made by Lambert JA in the Court ofAppeal17

So in the end the legal rights of the Indian people willhave to be accommodated within our total society bypolitical compromises and accommodations based inthe first instance on negotiation and agreement andultimately in accordance with the sovereign will of thecommunity as a whole

The legal rights of the Gitksan and Wetrsquosuwetrsquoenpeoples to which this law suit is confined and whichallow no room for any approach other than theapplication of the law itself and the legal rights of allaboriginal peoples throughout British Columbia formonly one factor in the ultimate determination of whatkind of community we are going to have in BritishColumbia and throughout Canada in the years ahead [Emphasis added]

Mr Justice La Forest also referred with approval to thestatements by the Royal Commission on AboriginalPeoples respecting the relative merits of negotiated18

recognition of Aboriginal rights and title overcourt-imposed solutions In the passage referred to by Mr

Delgamuukw v British Columbia [1997] 3 SCR 101016

1993 CanLII 4516 (BC CA) [1993] 5 WWR 97 at pp17

379-80

Report of the Royal Commission on Aboriginal Peoples18

ldquoRestructuring the Relationshiprdquo Part 2 at page 562



Justice La Forest the Royal Commission states

The courts can be only one part of a larger politicalprocess of negotiation and reconciliation As noted in arecent report by a task force of the Canadian BarAssociation While the courts may be useful to decidesome native issues or to bring pressure on the parties tosettle by some other means it appears clear thatjudicial adjudication will not provide all of the answersto the issues surrounding native claims

Negotiations are clearly preferable to court-imposedsolutions Litigation is expensive and time-consumingNegotiation permits parties to address each others realneeds and make complex and mutually agreeabletrade-offs A negotiated agreement is more likely toachieve legitimacy than a court-ordered solution ifonly because the parties participate more directly andconstructively in its creation

Negotiation also mirrors the nation-to-nationrelationship that underpins the law of Aboriginal titleand structures relations between Aboriginal nations andthe Crown

ltltltltgtgtgtgt

In R v Marshall in 1999 ldquoreconciliationrdquo moved its19

focus from reconciling competing interests in the presentto the question of reconciling the intentions of parties toTreaty at the time treaty was entered into first proposed inSioui Mr Justice Binnie spoke of the need to seek aninterpretation of common intention of the parties whichbest reconciles the interests of both parties at the time thetreaty was signed

ltltltltgtgtgtgt

In 2001 Chief Justice McLachlin returned to the theme ofldquoreconciliationrdquo in Mitchell when she wrote of thepromise of reconciliation embodied in s 35(1)rdquo Howeverthat theme was not elaborated further and the decision didnot sustain the First Nation position Nonetheless thephrase is an attractive one and has been repeated in otherjurisprudence still without elaboration

However criticism was starting to emerge on how thecourts were defining ldquoreconciliationrdquo John Borrows inldquoDomesticating Doctrines Aboriginal Peoples after theRoyal Commissionrdquo wrote 20

Courts have read Aboriginal rights to lands andresources as requiring a reconciliation that asks muchmore of Aboriginal peoples than it does of Canadians Reconciliation should not be a front for assimilation Reconciliation should be embraced as an approach toAboriginal-Canadian relations that also requiresCanada to accede in many areas

Yet both legislatures and courts have been pursuing acourse that by and large asks change only ofAboriginal peoples Canadian institutions have beenemploying domesticating doctrines in their response tothe [Royal Commission on Aboriginal Peoples] Thisapproach hinders Aboriginal choice in the developmentof their lands and resources rather than enhancing it

ltltltltgtgtgtgt

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 itapplied to the question of reconciliation

In summary that duty arises from the fiduciary duty ofthe Crown to recognize affirm and protect aboriginalrights however they arise Crown title is burdened byaboriginal title and rights ) and thus there my be twoconflicting rights whenever the Crown seeks to grantrights to parties over land claimed as subject toaboriginal rights The duty to consult andaccommodate then arises from those potentiallyconflicting rights and becomes the means ofreconciling those rights

Whether aboriginal title and rights are potentiallyinfringed must be assessed in light of the potential of aCrown granted right in question being inconsistent withthe exercise of aboriginal rights including title if suchrights should be proven to exist in the area in question

ltltltltgtgtgtgt

Another view of reconciliation ndash one that seems to beworth repeating ndash was expressed in 2002 by Mr JusticeJE Scanlan in the Nova Scotia Supreme Court in R vMarshall (SF) The comment related to the slow22

progress of reconciliation

1999 CanLII 665 (SCC) [1999] 3 SCR 45619

(2001) 46 McGill LJ 615 (QL) at para 6420

2002 BCSC 1701 (CanLII) (2002) 10 BCLR (4th) 12621

2002 BCSC 1701

2002 NSSC 57 (CanLII)22



I would make one final observation which is clearly inthe nature of obiter During the course of arguing thisappeal Crown counsel indicated the Mikmaq of NovaScotia may have valid claims in parts of this provinceother than at the cutting sites The Courts in earlierdecisions have referred to the fact that many of theissues still outstanding between Aboriginalcommunities and governments are best resolvedthrough a process of negotiations as opposed tolitigation

Litigation whether criminal or civil is slow andextremely expensive This adversarial approach doesnothing to further the process of reconciliation

Surely after waiting 240 years it is time to move on andresolve the outstanding issues in a comprehensive wayThe process of reconciliation must begin if native andnon-native communities in this province are to moveforward and prosper together There are limitations inwhat can be done after 240 years but it is best toaddress the issues before another century goes by

It may be in the interest of all involved if theoutstanding issues can be resolved by identifyingbundles of possible rights or entitlements and resolvingthe grievances through a comprehensive settlement Ifthe issues are not addressed in a global way then apiecemeal approach will continue A lastingresolution to these matters will only be achievedthrough negotiation A lasting resolution will providean opportunity for reconciliation

Another Nova Scotia judge who became impatient withthe Crownrsquos efforts toward reconciliation was ProvincialCourt Associate Chief Judge R Brian Gibson in R vPaul23

ldquoThe evidence and record reveal that the Applicants aremembers if the Indian Brook Mirsquokmaq community andhave from the outset of these charges asserted thatthey have a treaty right to fish for snow crab TheCrown had the option to test or deal with that treatyissue in a number of ways aside from pursuing aprosecution of the Applicants on both of these charges

Other approaches could have been either a reference ora declaratory action as stated in Marshall II atparagraph 13 Another approach and perhaps the bestapproach as stated in Marshall II at paragraph 22would have been to pursue a ldquoprocess of negotiation

and reconciliation that properly considers the complexand competing interests at stakerdquo All of thesenon-prosecutorial approaches likely would haveinvolved the Indian Brook Mirsquokmaq community andperhaps the entire Mirsquokmaq community in Nova Scotiarather than placing the onus of establishing the treatyright upon the Applicants

ldquoThe State has the right to use its discretion and pursuewhichever approach it wishes However if the Statechooses to pursue the prosecutorial approach it oughtnot have the unfair advantage of prosecutingApplicants who lack the financial resources to retainlegal counsel and lack the ability to advance atreaty-based defence without the benefit of legalcounselrdquo

ltltltltgtgtgtgt

Where Has All This Brought Us To

Madam Justice Satanove of the BC Supreme Court inLax Kwalaams Indian Band v Canada (AttorneyGeneral) made a useful summary of the ldquogeneral legal24

principlesrdquo set out by the Supreme Court of Canada toprovide a framework within which to decide ldquothe complexand sometimes esoteric issues that arise in aboriginalcasesrdquo Included in the list is the following evidence thatmust be provided to the court to establish ldquoan aboriginalrightrdquo

1 Evidence that there is continuity the right claimed asit is practiced today with pre-contact practices customsand traditions This means

2 evidence that the right has not been extinguished

3 evidence which considers the right in the context ofa pre-contact distinctive culture as well as in the lightof present-day circumstances

4 evidence that the right was being practiced beforethe arrival of Europeans

5 evidence that the pre-contact activity was an integralpart of the aboriginal communityrsquos culture prior tocontact with the Europeans that it continued after thearrival of the Europeans Where the practice custom ortradition arose solely as a response of Europeaninfluences then it will not meet the standard forrecognition of an aboriginal right

2002 NSPC 25 (CanLII) 23

2008 BCSC 447 (CanLII)24



6 this means evidence that the right claimed is centraland a significant part of a societyrsquos distinctive cultureone of the things that made this society truly what itwas

7 evidence identifying the nature of the right beingclaimed including the nature of the action donepursuant to the right

8 evidence of the practice custom or tradition beingrelied upon to establish the right

9 evidence that the right is claimed in context and isnot distorted ie that it is not artifically broadened nornarrowed

10 evidence that the legislation imposes unreasonablelimits or undue hardship or denies the preferred meansof exercising the rights

11 evidence or argument that the governmentrsquos use ofthe legislation is not compelling or substantial

12 evidence for the particular First Nation communitysince general evidence is not acceptable and each casemust be decided on a case-by-case basis

13 The right right must be expressed in termscognizable to the Canadian legal and constitutionalstructure

If the court agrees these tests have been met the claimantmay have established there is a right which can now moveon to reconciliation

ltltltltgtgtgtgt

A Distinct Shift Begins To Take Placein the Evolution of Reconciliation

In British Columbia (Minister of Forests) v OkanaganIndian Band in 2003 the Court made a costs order25

which it said would ldquoensure that the parties will beencouraged to resolve the matter through negotiationwhich remains the ultimate route to achievingreconciliation between aboriginal societies and theCrownrdquo

ltltltltgtgtgtgt

The Supreme Court of Canadarsquos unanimous judgment inHaida Nation v British Columbia (Minister of Forests)26

in 2004 stood for the principles that a claim did not haveto be proven before consultation was required and that while Aboriginal claims can be and are pursued throughlitigation ldquonegotiation is a preferable way of reconcilingstate and Aboriginal interestsrdquo Then building onDelgamuukw which built on Van der Peet she added

ldquoThe historical roots of the principle of the honour ofthe Crown suggest that it must be understoodgenerously in order to reflect the underlying realitiesfrom which it stems In all its dealings with Aboriginalpeoples from the assertion of sovereignty or theresolution of claims and the implementation of treatiesthe Crown must act honourably Nothing less isrequired if we are to achieve ldquothe reconciliation of thepre-existence of aboriginal societies with thesovereignty of the Crownrdquo

It was at this point that Chief Justice McLachlin revistedher faith in reconciliation through negotiated settlementsIn doing so she wrote the words that had been buriedaway since 1763

Treaties serve to reconcile pre-existing Aboriginalsovereignty with assumed Crown sovereignty and todefine Aboriginal rights guaranteed by s 35 of theConstitution Act 1982

Section 35 represents a promise of rights recognitionand ldquo[i]t is always assumed that the Crown intends tofulfil its promisesrdquo (Badger supra at para 41)

This promise is realized and sovereignty claimsreconciled through the process of honourablenegotiation

It is a corollary of s 35 that the Crown act honourablyin defining the rights it guarantees and in reconcilingthem with other rights and interests

This in turn implies a duty to consult and ifappropriate accommodate

There we have it finally ldquoAboriginal sovereigntyrdquo isldquopre-existingrdquo ldquoCrown sovereigntyrdquo is ldquoassumedrdquoThe basis for bilateralism and symmetry has beenestablished

With some occasional reversion in semantics usedMadam Chief Justice McLachlin elaborates on herstatement and her faith in negotiated settlements

The jurisprudence of this Court supports the view thatthe duty to consult and accommodate is part of aprocess of fair dealing and reconciliation that begins

[2003] 3 SCR 371 2003 SCC 7125

2004 SCC 73 [2004] 3 SCR 51126



with the assertion of sovereignty and continues beyondformal claims resolution

Reconciliation is not a final legal remedy in the usualsense Rather it is a process flowing from rightsguaranteed by s 35(1) of the Constitution Act 1982 This process of reconciliation flows from the Crownrsquosduty of honourable dealing toward Aboriginal peopleswhich arises in turn from the Crownrsquos assertion ofsovereignty over an Aboriginal people and de factocontrol of land and resources that were formerly in thecontrol of that people rdquo

Referring to some of the Courtrsquos previous views on therole of reconciliation she states

To limit reconciliation to the post-proof sphere riskstreating reconciliation as a distant legalistic goaldevoid of the ldquomeaningful contentrdquo mandated by theldquosolemn commitmentrdquo made by the Crown inrecognizing and affirming Aboriginal rights and titleSparrow It also risks unfortunate consequences When the distant goal of proof is finally reached theAboriginal peoples may find their land and resourceschanged and denuded This is not reconciliation Noris it honourable

But when precisely does a duty to consult arise The foundation of the duty in the Crownrsquos honourand the goal of reconciliation suggest that the dutyarises when the Crown has knowledge real orconstructive of the potential existence of theAboriginal right or title and contemplates conductthat might adversely affect it

I conclude that consultation and accommodation beforefinal claims resolution while challenging is notimpossible and indeed is an essential corollary to thehonourable process of reconciliation that s 35demands

It preserves the Aboriginal interest pending claimsresolution and fosters a relationship between the partiesthat makes possible negotiations the preferred processfor achieving ultimate reconciliation see SoniaLawrence and Patrick Macklem ldquoFrom Consultation toReconciliation Aboriginal Rights and the CrownrsquosDuty to Consultrdquo 27

The controlling question in all situations is what isrequired to maintain the honour of the Crown and toeffect reconciliation between the Crown and theAboriginal peoples with respect to the interests atstake

This flows from the meaning of ldquoaccommodaterdquo Theterms ldquoaccommodaterdquo and ldquoaccommodationrdquo have beendefined as to ldquoadapt harmonize reconcilerdquo ldquoanadjustment or adaptation to suit a special or differentpurpose a convenient arrangement a settlement orcompromiserdquo The accommodation that may result28

from pre-proof consultation is just this mdash seekingcompromise in an attempt to harmonize conflictinginterests and move further down the path ofreconciliation

(2000) 79 Can Bar Rev 252 at p 26227

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

at p 9

Treaties serve to reconcile pre-existingAboriginal sovereignty with assumedCrown sovereignty and to defineAboriginal rights guaranteed by s 35 of theConstitution Act 1982

Section 35 represents a promise of rightsrecognition and ldquo[i]t is always assumed thatthe Crown intends to fulfil its promisesrdquo

This promise is realized and sovereigntyclaims reconciled through the process ofhonourable negotiation

It is a corollary of s 35 that the Crown acthonourably in defining the rights itguarantees and in reconciling them withother rights and interests

This in turn implies a duty to consult andif appropriate accommodate

ndash Chief Justice Beverly McLachlinre Haida Nation



A commitment to the process does not require a duty toagree But it does require good faith efforts tounderstand each otherrsquos concerns and move to addressthem

Balance and compromise are inherent in the notion ofreconciliation

Haida has also come to stand for another proposition thatthe honour of the Crown can trigger the duty to consult forpurpose of reconciliation in cases where fiduciary duty isinsufficient to be the same trigger

As Justice Vickers put it in Tsilqhotrsquoin Chief JusticeMcLachlinrsquos concerns set out in Haida ldquoecho her dissentin Van der Peet where she disagreed that the goal ofreconciliation permits the Crown to require a judiciallyauthorized transfer of an Aboriginal right to non-Aboriginal people without the consent of Aboriginalpeople without treaty and without compensationrdquo

Justice Vickers saw the McLachlin judgment in Haida asldquoreturning the focus to a theory of reconciliation whichacknowledges the historical injustices suffered byAboriginal peoples and places limits on the ability of theCrown to alter the content of the right claimed in the preproof stage It is logical to conclude that in the post-proofstage the Crownrsquos ability to alter or infringe upon anAboriginal right would be faced with severe restrictionsrdquo

ltltltltgtgtgtgt

In Wewaykum Indian Band v Canada Justice Binnie of29

the SCC noted that the fiduciary duty does not exist inevery case but rather is limited to situations where aspecific First Nationrsquos interest arises As Justice Binnieexplained at paragraph 81 of that judgment ldquoThefiduciary duty imposed on the Crown does not exist atlarge but in relation to specific Indian interestsrdquo

Thus since 2002 the decision in Wewaykum meant that inorder for the purpose of reconciliation which underpins s35 of the Constitution Act 1982 to have meaning theremust be a broader duty on the Crown with respect toAboriginal relations than that imposed by a fiduciaryrelationship

Hence in Haida Nation the Court first identified thehonor of the Crown as the source of the Crownrsquos duty toconsult in good faith with First Nations and where

reasonable and necessary make the requiredaccommodation As such the Crown must consult whereits honor is engaged and its honor does not require aspecific Aboriginal interest to trigger a fiduciaryrelationship for it to be so engaged

Another way of formulating this difference is that aspecific infringement of an Aboriginal right is no longernecessary for the Governmentrsquos duty to consult to beengaged

The major difference between the fiduciary duty and thehonor of the Crown is that the latter can be triggered evenwhere the Aboriginal interest is insufficiently specific torequire that the Crown act in the Aboriginal grouprsquos bestinterest (that is as a fiduciary) In sum where anAboriginal group has no fiduciary protection the honor ofthe Crown fills in to insure the Crown fulfills the section35 goal of reconciliation of ldquothe pre-existence ofaboriginal societies with the sovereignty of the Crownrdquo30

ltltltltgtgtgtgt

In Taku River Tlingit First Nation v British Columbia(Project Assessment Director) 2004 Chief Justice31

McLachlin added ldquoaccommodationrdquo into thereconciliation formula again in the context of ldquocompetingsocietal concernsrdquo

ldquo accommodation requires that Aboriginal concernsbe balanced reasonably with the potential impact of theparticular decision on those concerns and withcompeting societal concerns Compromise is inherentto the reconciliation processrdquo

The Chief Justice also spoke for the Court in buildingldquohonour of the Crownrdquo into the equation

ldquoIn all its dealings with Aboriginal peoples the Crownmust act honourably in accordance with its historicaland future relationship with the Aboriginal peoples inquestion The Crownrsquos honour cannot be interpretednarrowly or technically but must be given full effect inorder to promote the process of reconciliationmandated by s 35(1)

ldquoThe obligation to consult does not arise only uponproof of an Aboriginal claim in order to justify

2002 SCC 79 (CanLII) [2002] 4 SCR 245 220 DLR (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 SCR 55031



infringement That understanding of consultationwould deny the significance of the historical roots ofthe honour of the Crown and deprive it of its role inthe reconciliation process Although determining therequired extent of consultation and accommodationbefore a final settlement is challenging it is essential tothe process mandated by s 35(1)

ldquoAs discussed in Haida the process of consultationmay lead to a duty to accommodate Aboriginalconcerns by adapting decisions or policies in responseThe purpose of s 35(1) of the Constitution Act 1982 isto facilitate the ultimate reconciliation of priorAboriginal occupation with de facto Crownsovereignty

Pending settlement the Crown is bound by its honourto balance societal and Aboriginal interests in makingdecisions that may affect Aboriginal claims TheCrown may be required to make decisions in the faceof disagreement as to the adequacy of its response toAboriginal concerns Balance and compromise willthen be necessaryrdquo

ltltltltgtgtgtgt

In 2005 the Supreme Court of Canada set down itsdecision in Mikisew Cree Justice Ian Binnie started off32

in paragraph 1 with a clear statement

The fundamental objective of the modern law ofaboriginal and treaty rights is the reconciliation ofaboriginal peoples and non-aboriginal peoples and theirrespective claims interests and ambitions Themanagement of these relationships takes place in theshadow of a long history of grievances andmisunderstanding

The multitude of smaller grievances created by theindifference of some government officials to aboriginalpeoplersquos concerns and the lack of respect inherent inthat indifference has been as destructive of the processof reconciliation as some of the larger and moreexplosive controversies And so it is in this case

With these strong and unequivocal words helpful as theyare in many respects Justice Binnie opened up a newdefinition of reconciliation not reconciliation of interestsnot reconciliation of sovereignties but ratherreconciliation of ldquopeoplesrdquo

As well if we are to move ahead on the strength of JusticeBinniersquos statement we have to deal with a fact pointed outby Justice Vickers in Tsilqhotrsquoin

Courts are not accustomed to taking into accountldquoclaims interests and ambitionsrdquo in the process ofreconciliation In the course of a trial a court willexamine an entire body of evidence in an attempt toestablish the factual truth in an objective manner In anadversarial system claims are dealt with to produce awinlose result Interest negotiations designed to takeopposing interests into account have the potential toachieve a winwin result

Such an approach in the context of consensual treatynegotiation would provide the forum for a fair and justreconciliation

Mr Justice Binnie was critical of the governmentrsquosapproach to the rights of the Mikisew

There is in the Ministerrsquos argument a strong advocacyof unilateral Crown action (a sort of ldquothis issurrendered land and we can do with it what we likerdquoapproach) which not only ignores the mutual promisesof the treaty both written and oral but also is theantithesis of reconciliation and mutual respect

The overarching objective he said should beldquoreconciliation not confrontationrdquo

ldquoConsultation that excludes from the outset any form ofaccommodation would be meaningless Thecontemplated process is not simply one of giving theMikisew an opportunity to blow off steam before theMinister proceeds to do what she intended to do allalong

ldquoTreaty making is an important stage in the longprocess of reconciliation but it is only a stage Whatoccurred at Fort Chipewyan in 1899 was not thecomplete discharge of the duty arising from the honourof the Crown but a rededication of itrdquo

In another context Mr Justice Binnie wrote thatldquoconsultation is key to achievement of the overallobjective of the modern law of treaty and aboriginalrights namely reconciliation

Mikisew is useful in still another context The federalgovernment has argued that Haida is applicable onlywhere Treaties have not been signed Where Treaties havebeen signed there is nothing left to discuss True Haidaspeaks in para 20 begins by quoting Sparrow Mikisew Cree First Nation v Canada (Minister of Canadian

32

Heritage) 2005 SCC 69 [2005] 3 SCR 388



ldquoWhere treaties remain to be concluded the honour ofthe Crown requires negotiations leading to a justsettlement of Aboriginal claimsrdquo

However any notion this implies finality was shattered byMr Justice Binnie who said in Mikisew that the signing ofTreaty 8 was not the end of reconciliation but ldquothebeginningrdquo

ltltltltgtgtgtgt

A linguistic note in McDiarmid Lumber Ltd v GodsLake First Nation the Manitoba Court of Appeal in33

2005 noted that Justice Marceau of the Federal Court ofAppeal had noted with favour the use of the wordldquoaccordrdquo (as it was used in the French text of an Act rather than the word ldquoagreementrdquo ldquoAccordrdquo he notedldquohas a clear connotation of the idea of a reconciliation ofa pact arrived at by the giving and taking by both partiesof a mutual understanding worked out throughconcessions and compromise and is therefore a wordclosely related to treaty rdquo

ltltltltgtgtgtgt

In 2005 the Government of British Columbia and the BCFirst Nations Leadership Council entered into a ldquoNewRelationshiprdquo based on ldquorespect recognition andaccommodation of Aboriginal title and rights respect foreach othersrsquo laws and responsibilities and for thereconciliation of Aboriginal and Crown titles andjurisdictionsrdquo A new Ministry was established ldquoMinisterof Aboriginal Relations and Reconciliationrdquo

As a result of the New Relationship several agreementswere entered into to ldquocreate the opportunity forcomprehensive and lasting reconciliation

Musqueam Reconciliation Settlement and BenefitsAgreement ndash settled three court cases with theMusqueam Indian Band through a negotiatedagreement that transfers ownership of a parcel of landand provides cash for future economic activities

Coastal First Nations Reconciliation Protocol to34

build a new ferry terminal at Klemtu as well as sharinga portion of resource revenue and carbon offsets TheCoastal First Nations will also be part of a new shared

decision making process and the creation of anAlternative Energy Action Plan for their traditionalterritories The Protocol states ldquo

The Province acknowledges that the Nations andFirst Nations have aboriginal title rights andinterests within their traditional territories andthis Reconciliation Protocol is a bridging step toa future reconciliation of those aboriginal titlerights and interests with provincial title rightsand interests

Haida Reconciliation Protocol - Kunstaa Guu ndashKunstaayah establishes a unique shared decision-35

making process at the strategic level for resource useprovides a share of resource revenues including carbonoffsets and a community forest tenure and theopportunity to purchase additional forest tenures

In addition the provincial government and First Nationshave been developing a range of mechanisms such as jointland-use agreements revenue sharing and economicbenefits

ltltltltgtgtgtgt

In Platinex in 2006 the Court found that the duty to36

consult carried within it a ldquoduty to negotiaterdquo

The duty to consult however goes beyond givingnotice and gathering and sharing information To bemeaningful the Crown must make good faith efforts tonegotiate an agreement The duty to negotiate does notmean a duty to agree but rather requires the Crown topossess a bona fide commitment to the principle ofreconciliation over litigation The duty to negotiatedoes not give First Nations a veto they must also makebona fide efforts to find a resolution to the issues athand

Litigation of cases where Aboriginal issues areinvolved whether by means of judicial review or byway of injunctive relief does not and will not promotereconciliation

2005 MBCA 22 (CanLII)33

34

httpwwwnewrelationshipgovbccashareddownloadscfn_bc

_reconciliation_frameworkpdf

35

httpwwwnewrelationshipgovbccashareddownloadshaida_r

econciliation_protocolpdf

Platinex Inc v Kitchenuhmaykoosib Inninuwug First Nation36

2006 CanLII 26171 (ON SC)



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 didnot continue It must begin again The parties mustcontinue to seek their own resolution of their issuesand concerns

ltltltltgtgtgtgt

Mr Justice Michael Phelan in Dene Tha First Nation vCanada (Minister of Environment) in 2006 advanced the37

proposition that the honour of the Crown can be triggeredin cases where the fiduciary duty trigger cannot beutilized

The major difference between the fiduciary duty andthe honor of the Crown is that the latter can betriggered even where the Aboriginal interest isinsufficiently specific to require that the Crown act inthe Aboriginal grouprsquos best interest (that is as afiduciary) In sum where an Aboriginal group has nofiduciary protection the honor of the Crown fills in toinsure the Crown fulfills the section 35 goal ofreconciliation of ldquothe pre-existence of aboriginalsocieties with the sovereignty of the Crownrdquo

In assessing whether the Crown has fulfilled its duty ofconsultation the goal of consultation ndash which isreconciliation ndash must be firmly kept in mind The goalof consultation is not to be narrowly interpreted as themitigation of adverse effects on Aboriginal rightsandor title Rather it is to receive a broad interpreta-tion in light of the context of Aboriginal-Crownrelationships the facilitation of reconciliation of thepre-existence of Aboriginal peoples with the presentand future sovereignty of the Crown

The goal of consultation does not also indicate anyspecific result in any particular case It does not meanthat the Crown must accept any particular position putforward by a First Nations people

Consultation is not consultation absent the intent toconsult Consultation cannot be meaningful if it isinadvertent or de facto Consultation must represent thegood faith effort of the Crown (reciprocated by theFirst Nation) to attempt to reconcile its sovereigntywith pre-existing claims of rights or title by the FirstNation

ltltltltgtgtgtgt

In 2006 in a strongly-worded dissenting decision inMcDiarmid Lumber Ltd v Gods Lake First Nation 38

writing for himself and Justices Fish and Abella MrJustice Binnie gave ldquoreconciliationrdquo an additionalobjective ndash remediation of dispossession

The history of Indian peoples in North America hasgenerally been one of dispossession includingdispossession of their pre-European sovereignty oftheir traditional lands and of distinctive elements oftheir cultures Of course arrival of new settlers alsobrought considerable benefits The world has changedand with it the culture and expectations of aboriginalpeoples have changed as they have for the rest of us

Yet it has been recognized since before the RoyalProclamation of 1763 that at some point theprocess of dispossession has to stop Accordinglyeven in periods when federal government policiesfavoured assimilation which is to say for most of thefirst century of Canadarsquos existence Parliamentrsquoslegislative policy was to protect reserves and theircontents as a sanctuary for those Indians who wished tostay in their own communities and adhere to their owncultures The promise in Treaty No 5 of agriculturalsupplies is a 19 and 20 Century recognition of theth th

need to ameliorate the effects of dispossession

In my view whatever legislative measures flow out ofParliamentrsquos recognition of the impact of thatdispossession and the desire for reconciliation ofaboriginal and non-aboriginal peoples arising from thatsituation should apply as much to bands dispossessedwithout a treaty as to those with whom treaties weremade [emphasis added]

ltltltltgtgtgtgt

In his 2007 Tsilhqotrsquoin decision the late Mr Justice39

DH Vickers set out a partial listing of the challenges andtragedies which had been faced by the Tsilhqotrsquoin Nationover recent history He added that dimension to the task ofreconciliation

The present Canadian community is now faced with thechallenge of acknowledging past wrongs and of

2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38

Tsilhqotin Nation v British Columbia 2007 BCSC 170039

(CanLII)



building a consensual and lasting reconciliation withAboriginal people Trials in a courtroom have theinevitable downside of producing winners and losers My hope is that this judgment will shine new light onthe path of reconciliation that lies ahead

Thus in writing his judgment he said ldquoBecause the Courtis engaged in the broader process of reconciliation I havedeparted from the usual practice and expressed my viewson some issues that might not have been addressed but forthe nature of these proceedings

ldquoImportant work lies ahead for the provincial andfederal governments and Tsilhqotrsquoin people In thatregard there will have to be compromises on all sidesif a just and lasting reconciliation is to be achieved

Justice Vickers wrote an entire chapter of his Reasons forDecision on ldquoReconciliationrdquo In it he canvassed thejurisprudence and spoke frankly of his own hopes for thefuture

Throughout the course of the trial and over the longmonths of preparing this judgment my consistent hopehas been that whatever the outcome it wouldultimately lead to an early and honourablereconciliation with Tsilhqotrsquoin people After a trial ofthis scope and duration it would be tragic ifreconciliation with Tsilhqotrsquoin people were postponedthrough seemingly endless appeals The time to reachan honourable resolution and reconciliation is with ustoday

Blackrsquos Law Dictionary 8th ed defines reconciliationas ldquoRestoration of harmony between persons or thingsthat had been in conflictrdquo The relationship betweenAboriginal and non-Aboriginal Canadians has atroubled history Fuelled by the promise of s 35(1)the early part of this century has brought significantchanges in government policies at both the provincialand federal levels

Thus there is a kindling of hope and expectation that ajust and honourable reconciliation with First Nationspeople will be achieved by this generation ofCanadians

Unfortunately the initial reluctance of governments toacknowledge the full impact of s 35(1) has placed thequestion of reconciliation in the courtroom ndash one of ourmost adversarial settings Courts struggle with themeaning of reconciliation when Aboriginal andnon-Aboriginal litigants seek a determination regardingthe existence and implications of Aboriginal rights

Lloyd Barber speaking as Commissioner of the IndianClaims Commission is quoted on this issue40

It is clear that most Indian claims are not simpleissues of contractual dispute to be resolved throughconventional methods of arbitration andadjudication They are the most visible part of themuch much more complex question of therelationship between the original inhabitants of thisland and the powerful cultures which moved inupon them

Courts are obliged to address this complex question inthe context of their constitutional obligations DavidStack describes the nature of this obligation in ldquoTheImpact of the RCAP on the Judiciary BringingAboriginal Perspectives into the Courtroomrdquo 41

The courtsrsquo opportunity to advance the largervision of justice [recognition of Aboriginal rightsand self-government] comes from theirconstitutional obligation to interpret and enforcethe Constitution specifically s 35(1)

These words leave the courts with a widediscretion to protect define and recognize therights of Aboriginals In many cases this givescourts the unenviable task of determining the kindof relationships that rights-bearing Aboriginals areto have with the larger non-Aboriginal society

In tracing the jurisprudence Justice Vickers then placeshis finger directly on the problem which has beenidentified earlier in this essay

The Court is clearly concerned with developing atheory of reconciliation that accords with Canadarsquosidentity as a constitutional democracy However themajorityrsquos link between its theory of reconciliation andthe justification of infringements test described in Vander Peet and Gladstone would appear to effectivelyplace Aboriginal rights under a Charter s 1 analysis

As McLachlin J points out this is contrary to theconstitutional document and arguably contrary to theobjectives behind s 35(1)


Looking Forward Looking Back vol 1 (Ottawa Supply and

Services Canada 1996) at p 203 quoting A Report Statements

and Submissions (Ottawa Queenrsquos Printer 1977) at p 2

(1999) 62 Sask L Rev 471 at para 44 (QL)41



The result is that the interests of the broaderCanadian community as opposed to theconstitutionally entrenched rights of Aboriginalpeoples are to be foremost in the consideration ofthe Court In that type of analysis reconciliationdoes not focus on the historical injustices sufferedby Aboriginal peoples It is reconciliation on termsimposed by the needs of the colonizer

Justice Vickers quoted Lisa Dufraimont in ldquoFromRegulation to Recolonization Justifiable Infringement ofAboriginal Rights at the Supreme Court of Canadardquo42

Like the broadening test for justification ofinfringement it informs the discussion of reconciliationin Gladstone and Delgamuukw suggests that Aboriginalrights must give way when they conflict with publicgoals and interests This idea of reconciliation issimply not a plausible articulation of the purpose of s35(1) Governments do not recognize and affirmminority rights for the benefit of the majority

Rather the purpose of s 35(1) as suggested inSparrow is remedial Aboriginal rights have beenconstitutionalized precisely in order to promote a justsettlement for Aboriginal peoples by strengthening andlegitimizing their claims against the Crown

Justice Vickers saw that ldquoin an ideal world

ldquothe process of reconciliation would take place outsidethe adversarial milieu of a courtroom This casedemonstrates how the Court confined by the issuesraised in the pleadings and the jurisprudence onAboriginal rights and title is ill-equipped to effect areconciliation of competing interests That must bereserved for a treaty negotiation process

Despite this fact the question remains how can thisCourt participate in the process of reconciliationbetween Tsilhqotrsquoin people Canada and BritishColumbia in these proceedings

Justice Vickers found remarks of Gordon Christie on thisissue in ldquoAboriginality and Normativity JudicialJustification of Recent Developments in AboriginalLawrdquo as being ldquoparticularly thought provoking and43

helpfulrdquo

What role in particular should the judiciary be playingin this matter The way forward is clear enough ifunpalatable to the judiciary A Section One-likeapproach to justifying legislative interference withAboriginal rights should never have beencontemplated The judiciary simply cannot justify thischange to the law as it applies to Aboriginal peoplesand their rights

Appeals to the need for the application of the rule oflaw are empty as are notions that the Court requiressuch an approach to operate appropriately in a balancedconstitutional democracy As unpleasant as theresulting situation may be Aboriginal rights at thispoint in the process of reconciliation must be accordedthe sort of legal protection they demand ndash that of lsquosureand unavoidablersquo rights

These would be the sorts of rights which operate toprotect essential Aboriginal interests ndash in livingaccording to the good ways knowledge of which hasbeen handed down from generation to generation

The practical outcome of this should be clear ndash thiswould bring the governments of Canada to thenegotiating table and would give Aboriginal peoplesthe sort of strength they need to work out a fairaccommodation a resolution of the ills caused bycenturies of colonialism

This is as it should be for from the perspective of thetheory and principles underlying the superstructure ofCanadian society and Canadian law there is no otherway to work out an appropriate place for Aboriginalpeoples in contemporary society

For Canada to advance to maturity for the socialcompact to welcome within all those currently livingwithin Canadarsquos geographic boundaries Aboriginalpeoples must be able to bargain their way into a fairconstitutional contract

This can only be accomplished with recognition on theCanadian side of the table of the position occupied byAboriginal peoples they come to these negotiations inthe same state they were in 500 years ago as organizedsocieties existing lsquopriorrsquo to the assertion of Crownsovereignty societies organized according to separateand distinct conceptions of the good and of how to leadgood lives

(2000) 58 UT Fac L Rev (QL) at para 2442

(2002) 17 No 2 CJLS 41 at pp 69-7043



Justice Vickers recognized the problem he faced

The Aboriginal interests considered by the courts arenecessarily confined to the pleadings The court mustalso take into account the interests and needs of thebroader society which are not confined to thepleadings This is what the test of justification requiresRegrettably the adversarial system restricts theexamination of Aboriginal interests that is needed toachieve a fair and just reconciliation

In this context Justice Vickers referred to an article byProfessor Brian Slattery entitled ldquoThe Metamorphosis ofAboriginal Titlerdquo 44

In this article Professor Slattery argues for theldquoPrinciples of Recognition and Reconciliationrdquo Henotes at p 283 that ldquoreconciliation must strike abalance between the need to remedy past injustices andthe need to accommodate contemporary interestsrdquo

I agree entirely with the views expressed by ProfessorSlattery at p 286

In other words section 35 does not simplyrecognize a static body of aboriginal rights whosecontours may be ascertained by the application ofgeneral legal criteria to historical circumstances mdashwhat we have called historical rights

Rather the section recognizes a body of generativerights which bind the Crown to take positive stepsto identify aboriginal rights in a contemporaryform with the participation and consent of theIndigenous peoples concerned

Professor Slattery points out at p 281 thatreconciliation cannot be achieved by the currentprocess of translating an historical right into one thatcorresponds with a modern common law right Hewrites ldquosuch a process artificially constrains anddistorts the true character of aboriginal title and riskscompounding the historical injustices visited onIndigenous peoplesrdquo

This case serves as an example of that conclusion Ifear as he foretold that ldquo[f]ar from reconcilingIndigenous peoples with the Crownrdquo the conclusions Iam driven to reach seem more ldquolikely to exacerbateexisting conflicts and grievancesrdquo Slattery at p 281

Professor Slattery further argues that historical titleldquoprovides the point of departure for any modern inquiryand a benchmark for assessing the actions of colonialgovernments and the scope of Indigenousdispossessionrdquo Slattery at pp 281 282

In his view a number of ldquoPrinciples of Reconciliationgovern the legal effect of aboriginal title in moderntimesrdquo He writes that these principles

hellip take as their starting point the historical title ofthe Indigenous group hellip but they also take intoaccount a range of other factors such as thesubsequent history of the lands in question theIndigenous grouprsquos contemporary interests and theinterests of third parties and the larger society Sodoing they posit that historical aboriginal title hasbeen transformed into a generative right which canbe partially implemented by the courts but whosefull implementation requires the recognition ofmodern treaties

He continues by suggesting that the actions of courtshave the potential to diminish the possibility ofreconciliation ever occurring He concludes at p 282

hellip the successful settlement of aboriginal claimsmust involve the full and unstinting recognition ofthe historical reality of aboriginal title the truescope and effects of Indigenous dispossession andthe continuing links between an Indigenous peopleand its traditional lands So for example tomaintain that ldquonomadicrdquo or ldquosemi-nomadicrdquopeoples had historical aboriginal title to only afraction of the ancestral hunting territories or tohold that aboriginal title could be extinguishedsimply by Crown grant is to rub salt into openwounds

However by the same token the recognition ofhistorical title while a necessary precondition formodern reconciliation is not in itself a sufficientbasis for reconciliation which must take intoaccount a range of other factors So for exampleto suggest that historical aboriginal title gives riseto modern rights that automatically trump thirdparty and public interests constitutes an attempt toremedy one grave injustice by committing another

Courts should not be placed in this invidious positionmerely because governments at all levels forsuccessive generations have failed in the discharge oftheir constitutional obligations Inevitably this decision

(2006) 85 Can Bar Rev 25544



and others like it run the risk of rubbing salt into openwounds

The narrow role this court can play in definingTsilhqotrsquoin Aboriginal rights in the Claim Area lies inan application of the jurisprudence to the facts of thiscase I can only hope that it will assist the parties infinding a contemporary solution that will balanceTsilhqotrsquoin interests and needs with the interests andneeds of the broader society

The application of Professor Slatteryrsquos ldquoPrinciples ofRecognition and Reconciliationrdquo may assist in thisprocess At pp 283-284 Professor Slattery suggeststhat the ldquoPrinciples of Recognitionrdquo should havecertain basic characteristics

1) They should acknowledge the historical realitythat ldquowhen the settlers came the Indians werethere organized in societies and occupying theland as their forefathers had done for centuriesrdquo asJudson J observed in the Calder case

They should not draw arbitrary distinctionsbetween ldquosettledrdquo ldquonomadicrdquo and ldquosemi-nomadicrdquopeoples but accept that all of the Indigenouspeoples in Canada had historical rights to theirancestral homelands ndash the lands from which theydrew their material livelihood social identity andspiritual nourishment ndash regardless whether theyhad developed conceptions of ldquoownershiprdquoldquopropertyrdquo of ldquoexclusivityrdquo and without forcingtheir practices into conceptual boxes derived fromEnglish or French law

2) They should take account of the long history ofrelations between Indigenous peoples and theBritish Crown and the body of inter-societal lawthat emerged from those relations

3) They should draw inspiration from fundamentalprinciples of international law and justiceprinciples that are truly universal and notgrounded simply in rules that European imperialpowers formulated to suit their own conveniencesuch as the supposed ldquoprinciple of discoveryrdquo

4) They should envisage the continuing operationof customary law within the Indigenous groupconcerned At the same time they should explainthe way in which the collective title of anIndigenous group relates to the titles of otherIndigenous groups and to rights held under thegeneral land system

This is of course not a task for a court However inthe context of treaty negotiation it strikes me as aconvenient starting point Recognition that Aboriginalpeople have historical rights to their ancestralhomelands regardless of whether they had developedconceptions of ldquoownershiprdquo ldquopropertyrdquo orldquoexclusivityrdquo quickly moves the debate to the realquestion what interests are at stake and how are theyto be reconciled

Professor Slattery further describes the ldquoPrinciples ofReconciliationrdquo as follows at pp 284-285

1) They should acknowledge the historical rightsof Indigenous peoples to their ancestral lands underPrinciples of Recognition as the essential startingpoint for any modern settlement

2) They should explain how historical aboriginalrights were transformed into generative rights withthe passage of time and explain the rise of thirdparty and other societal interests

3) They should draw a distinction in principlebetween the ldquoinner corerdquo of generative aboriginalrights that may be implemented without negotiationin modern times and a ldquopenumbrardquo or ldquoouterlayerrdquo that needs to be articulated in treatiesconcluded between the Indigenous people and theCrown

4) They should provide guidelines governing theaccommodation of rights and interests held by thirdparties within the historical territories ofIndigenous peoples

5) They should create strong incentives fornegotiated settlements to be reached within areasonable period of time

I confess that early in this trial perhaps in a moment ofself pity I looked out at the legions of counsel andasked if someone would soon be standing up to admitthat Tsilhqotrsquoin people had been in the Claim Area forover 200 years leaving the real question to beanswered My view at this early stage of the trial wasthat the real question concerned the consequences thatwould follow such an admission I was assured that itwas necessary to continue the course we were set upon

My view has not been altered since I first raised theissue almost five years ago



At the end of the trial a concession concerning anAboriginal hunting and trapping right in the ClaimArea was made by both defendants As I have alreadynoted that concession brings with it an admission ofthe presence of Tsilhqotrsquoin people in the Claim Areafor over 200 years This leaves the central questionunanswered what are the consequences of thiscenturies-old occupation in the short term and in thelong term for Tsilhqotrsquoin and Xeni Gwetrsquoin people

I have come to see the Courtrsquos role as one step in theprocess of reconciliation For that reason I have takenthe opportunity to decide issues that did not need to bedecided For example I have been unable to make adeclaration of Tsilhqotrsquoin Aboriginal title However Ihave expressed an opinion that the parties are free touse in the negotiations that must follow

What is clear to me is that the impoverished view ofAboriginal title advanced by Canada and BritishColumbia characterized by the plaintiff as a ldquopostagestamprdquo approach to title cannot be allowed to pervadeand inhibit genuine negotiations A tract of land is notjust a hunting blind or a favourite fishing hole Individual sites such as hunting blinds and fishingholes are but a part of the land that has providedldquocultural security and continuityrdquo to Tsilhqotrsquoin peoplefor better than two centuries

A tract of land is intended to describe land over whichIndigenous people roamed on a regular basis land thatultimately defined and sustained them as a people Therecognition of the long-standing presence ofTsilhqotrsquoin people in the Claim Area is a simplestraightforward acknowledgment of an historical fact

Given this basic recognition how are the needs of amodern rural Indigenous people to be met How cantheir contemporary needs and interests be balancedwith the needs and interests of the broader society That is the challenge that lies in the immediate futurefor Tsilhqotrsquoin people Canada and British Columbia

Justice Vickers concluded

Reconciliation is a process It is in the interests of allCanadians that we begin to engage in this process at theearliest possible date so that an honourable settlementwith Tsilhqotrsquoin people can be achieved

ltltltltgtgtgtgt

Also in 2007 Mr Justice Lemieux of the Federal Courtadded to the increasing judicial criticism of the apparent

policy of the federal government to litigate alwaysconsult only if ordered to do so The case is TzeachtenFirst Nation v Canada (Attorney General)45

Mr Justice Lemieux wrote with regard to federal motionsto disallow a First Nation application for judicial reviewbecause the application was made more than 30 days afterthe decision was made

The Applicants have persuaded me that they have madeout a reasonable explanation for delaying theirapplication When they became aware of the transfer ofthe lands by DND to CLC they sought consultationrather than litigation They asked for consultation withCLC Treasury Board DND only to be sidetracked

They then sought relief through a representative actionfiled in the BC Supreme Court but were denied accesson jurisdictional grounds Shortly after the BC Courtof Appeal rendered its decision the Applicantsinstituted this proceeding in the Federal Court

time and time again the Courts have stated thatnegotiated resolutions are superior to litigatedoutcomes in the process of reconciling Crownsovereignty with prior aboriginal occupation TheApplicants should not be penalized for seekingconsultations rather than litigation

ltltltltgtgtgtgt

In 2007 in Cook v The Minister of Aboriginal Relationsand Reconciliation Madam Justice Garson wrote of the46

Province of British Columbia having a ldquoconstitutionalimperativerdquo to engage in reconciliation

ldquoThe power of the Crown to enter into treaties may beits natural person power to contract but the basis fordoing so is its constitutional imperative to take steps toldquo[reconcile] hellip the pre-existence of aboriginal societieswith the sovereignty of the Crownrdquo Haida at para 17 As MacLachlin CJC wrote at para 20 of HaidaldquoWhere treaties remain to be concluded the honour ofthe Crown requires negotiations leading to a justsettlement of aboriginal claimsrdquo

ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45




In 2008 in R v Kapp the Supreme Court of Canada47

invoked s 25 of the Constitution Act 1982 as part of thereconciliation process As Justice Bastarache put it thatsection serves the purpose of protecting the rights ofaboriginal peoples where the application of the Charterprotections for individuals would diminish the distinctivecollective and cultural identity of an aboriginal group Asto reconciliation

s 25 reflects the notions of reconciliation andnegotiation present in the treaty process and recognizedby the previous jurisprudence of this Court HaidaNation Taku River Section 25 is a necessary partner tos 35(1) it protects s 35(1) purposes and enlarges thereach of measures needed to fulfill the promise ofreconciliation

ltltltltgtgtgtgt

In 2009 in Brokenhead First Nations v Canada Mr48

Justice Douglas Campbell devoted a section of hisReasons for Decision to ldquoReconciliationrdquo Seeingimplementation of Treaty as a part of the process ofreconsiliation he cited with favour a publication by theTreaty Commissioner for Saskatchewan noting that it49

was a helpful observation in understanding the importanceof a non-litigious engagement between Aboriginal Peopleand government when making decisions which directlyaffect Aboriginal Treaty rights

In law as both the Haida and Mikisew casesemphasize reconciliation is a ldquoprocessrdquo and thatprocess does not end with the making of a treaty Theprocess carries on through the implementation of thattreaty and is guided by a duty of honourable dealing The very nature of the treaties is to establish mutualrights and obligations

Fulfilling treaties is not a one-way street Accordinglythe honour of Treaty First Nations is also at stake in thetreaty implementation process As the Supreme Courtof Canada has stated ldquoAt all stages good faith on bothsides is requiredrdquo

Mr Justice Campbell also said ldquoIt is fair to say that thenegotiation of Land Entitlement Agreements under Treaty

No 1 was a process of reconciliation between the interestsand ambitions of Aboriginal People and the Federal andManitoba Crownrdquo

ltltltltgtgtgtgt

The Gitxaala Nationrsquos Argument

In Lax Kwrsquoalaams Indian Band v Canada (AttorneyGeneral) the Gitxaala Nation had status as an50

intervenor Lax Karsquoalaams appealed the trial decision tothe BC Court of Appeal That court sustained the trialjudge in January 2010 and rejected the Gitxaalaargument It is believed that notice of application for leaveto appeal has been filed with the Supreme Court ofCanada

The Gitxaalla argument as stated by the BC Court ofAppeal is that the template for determining the existenceof Aboriginal rights provided by the trilogy in 1996 hasbeen substantially changed by a new ldquostandard of liferdquoapproach that was first enunciated in dissent byMcLachlin J (as she then was) in the trilogy first ldquotookrootrdquo in Marshall (1999) and was fully adopted by theCourt in Mitchell v MNR

[67] It will be recalled that in Marshall (1999) theCourt was asked to construe the Mirsquokmaq treaties of1760-1 under which the Mirsquokmaq had been promisedaccess to ldquonecessariesrdquo through trade in wildlife (TheMirsquokmaq did not assert any Aboriginal right outside thetreaties) The Crown argued that the so-calledldquotruckhouserdquo clause in the treaties was a time-limitedresponse to a temporary problem that was nowessentially spent (Para 54)

Binnie J for the majority of the Court rejected thatproposition and equated the treaty right toldquonecessariesrdquo to what Lambert JA had described inVan der Peet as a ldquomoderate livelihoodrdquo (Para 59) Binnie J continued

Bare subsistence has thankfully receded over thelast couple of centuries as an appropriate standardof life for aboriginals and non-aboriginals alike Amoderate livelihood includes such basics as ldquofoodclothing and housing supplemented by a fewamenitiesrdquo but not the accumulation of wealth(Gladstone supra at para 165) It addressesday-to-day needs This was the common intention 2008 SCC 41 [2008] 2 SCR 483

47

2009 FC 982 (CanLII)48

Treaty Implementation Fulfilling the Covenant Office of the49

Treaty Commissioner Saskatoon 2007 pp 127 ndash 128 2009 BCCA 593 (CanLII)50



in 1760 It is fair that it be given this interpretationtoday

The distinction between a commercial right and aright to trade for necessaries or sustenance wasdiscussed in Gladstone supra where Lamer CJspeaking for the majority held that the Heiltsuk ofBritish Columbia have ldquoan aboriginal right to sellherring spawn on kelp to an extent best describedas commercialrdquo (para 28) This finding was basedon the evidence that ldquotonsrdquo of the herring spawn onkelp was traded and that such trade was a centraland defining feature of Heiltsuk society

McLachlin J however took a different view ofthe evidence which she concluded supported afinding that the Heiltsuk derived only sustenancefrom the trade of the herring spawn on kelpldquoSustenancerdquo provided a manageable limitation onwhat would otherwise be a free-standingcommercial right She wrote at para 165

Despite the large quantities of herring spawnon kelp traditionally traded the evidence doesnot indicate that the trade of herring spawn onkelp provided for the Heiltsuk anything morethan basic sustenance There is no evidence inthis case that the Heiltsuk accumulated wealthwhich would exceed a sustenance lifestylefrom the herring spawn on kelp fishery[Emphasis added]

In this case equally it is not suggested thatMikmaq trade historically generated ldquowealthwhich would exceed a sustenance lifestylerdquo Norwould anything more have been contemplated bythe parties in 1760

Catch limits that could reasonably be expected toproduce a moderate livelihood for individualMikmaq families at present-day standards can beestablished by regulation and enforced withoutviolating the treaty right In that case theregulations would accommodate the treaty rightSuch regulations would not constitute aninfringement that would have to be justified underthe Badger standard [At paras 59-61]

[68] Mr Robbins on behalf of the Gitxaala Nationsubmits that this reasoning departs substantially fromthe trilogy and ldquosignals a refined approach tocharacterizing the extent of trading-based rights by wayof the purpose (ie standard of life) served by the

trading practicerdquo replacing what he describes as aldquomurky scale of traderdquo basis

I would not normally have equated purpose withlsquostandard of lifersquo but more importantly the majority inMarshall (1999) did not indicate in my respectfulview an intention of departing from the framework ofanalysis established by the trilogy or of changing itsposition with respect to the dissenting reasons ofLambert JA in Van der Peet

As we have seen Marshall (1999) was a treaty caseand the treaty gave the claimants the promise of accessto ldquonecessariesrdquo through trade in wildlife The Courtwas addressing a different issue than arose in the casesdiscussed above and in that context the Court seemsto have suggested the ldquosocial testrdquo had a differentsignificance

[70] Again I am unable to agree with Mr Robbins thatMitchell signals a sea change from the Courtrsquos previousapproach and its replacement by one that characterizesthe extent of trading-based rights according to theldquostandard of liferdquo achieved by the practice or activity

I see the categorization of trade or any other activity inquestion according to whether it is aimed at feedingoneself or onersquos people aimed at obtaining items to beused for ceremonial occasions aimed at accumulatingprivate or communal wealth or aimed at participationin a large-scale market as concerned with purpose andas consistent with a principled approach to Aboriginalculture

The Supreme Court of Canada may have the opportunityto deal with this issue

ltltltltgtgtgtgt

So Where Does That Leave Us

The deep solution is to convince federal and provincialgovernments to put all conflicts (including those nowbefore the courts) into negotiation and turn to litigationonly when negotiations are irremediably unsuccessful

Success in this proposition is likely to require politiciansto feel empowered enough that they will instructgovernment legal counsel to take this approach and insistthat the policy be followed It is less probable that successcan be expected by government lawyers convincingpoliticians that the lawyers should be engaged atnegotiating tables rather than in courts



If a case does go (or return to) litigation there are twooptions (and undoubtedly more) which can be consideredin legal strategy

stick with the early cases in the evolution of theconcept of reconciliation (a la Van der Peet) andcontinue to argue as to whether a certain custom wascentral and integral to the culture of a people prior tocontact by Europeans etc etc This approach almostguarantees everything will be so embroiled and tangledthat by the time the argument is ready to move on toMikisew and Haida those latter cases will be renderedto be of little use

Orstart with the precepts of Mikisew and Haida and morerecent thinking about reconciliation which will likelymean recourse to Van der Peet is not required Thismeans First Nations plaintiffs and applicants arearguing Haida the governments are arguing Van derPeet ndash and generally the decisions of the Court arewritten either in support of or in answer to the FirstNation positions It is almost that the substantivedialogue is not between the adversaries but betweenthe First Nations and the Courts

ltltltltgtgtgtgt

To close this essay on reconciliation a conundrum

if First Nations were to be successful in achievingsymmetry and parity in the reconciliation processacting on the basis of rights and jurisdiction in thesame way that the Crown acts on the basis of rights andjurisdiction Canadian courts may no longer be ofassistance

As the Supreme Court of Canada said in Reference reSecession of Quebec 51

The reconciliation of the various legitimateconstitutional interests is necessarily committed to thepolitical rather than the judicial realm preciselybecause that reconciliation can only be achievedthrough the give and take of political negotiations

To the extent issues addressed in the course ofnegotiation are political the courts appreciating theirproper role in the constitutional scheme would have nosupervisory role

It may be that judicial supervision of a bilateralsymmetrical reconciliation process will require theinvention of a new institution which is capable of bridgingbetween the two parties in a manner that both partiesconsider to be fair and unbiased

How would such a new institution be devised As theSupreme Court pointed out later in the Secession decisionamending the rules of the game can only be accomplishedldquothrough a process of negotiation which ensures that thereis an opportunity for the constitutionally-defined rights ofall the parties to be respected and reconciledrdquo

Negotiation would be unsuccessful however if thefederal party entered it with its current policies and legalposition or if First Nations would set out an immutablenon-negotiable position A paraphrasing of the SupremeCourt in its Reference re Secession decision might havethis result

We hold that First Nations could not purport to invokea right of self-determination such as to dictate the termsof having a bilateral relationship with the sovereigntyof the Crown That would not be a negotiation at allNo negotiations could be effective if their ultimate iscast as an absolute legal entitlement Such a foregoneconclusion would undermine the obligation to negotiateand render it hollow

However we are equally unable to accept the reverseproposition that a clear expression of First Nations tohave a different relationship of their ldquosovereigntyrdquo withrespect to the claim of the federal government that itssovereignty trumps any First Nation claim Thecontinued existence and operation of the Canadianconstitutional order cannot remain indifferent to the clear expression of peoples who occupied Canadabefore the arrival of Europeans and who claim that thesovereignty they enjoyed at that time remains in effect

A political majority that does not act in accordancewith the underlying constitutional principles we haveidentified puts at risk the legitimacy of the exercise ofits rights

Negotiations would be necessary to address the interestsof the federal government of Quebec and the otherprovinces and other participants as well as the rights ofall Canadians both within and outside Quebec

Undertaking that task seems to be too far into the future tobe contemplated now

ltltltgtgtgt [1998] 2 SCR 21751



ADDENDUM

The original essay in 2010 was followed with anAppendix ldquoThe Evolution of the Definition oflsquoReconciliationrsquo in Canadian Jurisprudencerdquo

That appendix soon evolved into an entirely separatepaper ldquoGeneology of Reconciliation in Supreme Courtof Canada First Nations Decisionsrdquo which is availablefrom ltfourarrowsoutlookcomgt or can bedownloaded from ltwwwacademiaedugt

APPENDIX

The Evolution of the Definition of ldquoReconciliationrdquoin Canadian Jurisprudence

a) reconcile the Hurons need to protect the exercise oftheir customs and the desire of the British conquerors toexpand (Justice Lamer in Sioui 1990)

b) reconcile the competing interests at the time the Treatywas made (Justice Lamer in Sioui)

c) reconcile federal power and First Nation rightssomething which should be done voluntarily (Sparrow)

d) reconciling federal power with federal duty bydemanding the justification of any government regulationthat infringes upon or denies aboriginal rights (Sparrow)

e) reconciliation is the process by which the Indian culturecan be preserved and by which other Canadians may beassured that their interests developed over 125 years ofnationhood can also be respected (Justice McFarlane inBC Court of Appeal in Delgamuukw)

f) reconciliation of aboriginal societies with the broaderpolitical community of which they are a part (ChiefJustice Lamer in Delgamuukw)

g) reconciliation is the balancing of aboriginal rights withsuch interests as ldquothe pursuit of economic and regionalfairness and the recognition of the historical relianceupon and participation in the fishery by non-aboriginalgroups In the right circumstances such objectives arein the interest of all Canadians and more importantly thereconciliation of aboriginal societies with the rest ofCanadian society may well depend on their successfulattainmentrdquo (Gladstone)

h) reconciliation of the existence of distinctive aboriginalsocieties prior to the arrival of Europeans with theassertion of Crown sovereignty over that territory as a

means of maintaining the critical and integral aspects ofthose societies (Gladstone)

i) reconciliation of aboriginal prior occupation with theassertion of the sovereignty of the Crown (Chief JusticeLamer in Van der Peet)

j) reconciliation of those distinctive features that need tobe acknowledged and reconciled with the sovereignty ofthe Crown (Chief Justice Lamer in Van der Peet)

k) reconciliation not only of prior aboriginal occupationbut also a prior legal regime giving rise to aboriginalrights which persist absent extinguishment withEuropean settlement and sovereignty and to do so in a waythat provides the basis for a just and lasting settlement ofaboriginal claims consistent with the high standard whichthe law imposes on the Crown in its dealings withaboriginal peoples (Justice McLachlin in dissent inDelgamuukw)

l) reconciliation is the promise embodied in s 35(1)(Chief Justice McLachlin in Mitchell)

m) reconciliation is the accomplished through the meansof the duty to consult and accommodate potentiallyconflicting rights (BC Supreme Court in Gitxsan andOther First Nations)

n) reconciliation is a process mandated by s 35(1) inwhich the Crown acts honourably not interpreting thatterm narrowly or technically but given full effect (ChiefJustice McLaughlin in British Columbia (Minister ofForests) v Okanagan Indian Band)

o) reconciliation through treaties of pre-existingAboriginal sovereignty with assumed Crownsovereignty (Chief Justice McLachlin in HaidaNation)

p) reconciliation acknowledges the historical injusticessuffered by Aboriginal peoples and places limits on theability of the Crown to alter the content of the rightclaimed in the pre-proof stage (Justice Vickers on Haidain Tsilqotin)

q) reconciliation underpins s 35 of the Constitution Act1982 and for it to have meaning there is a broader dutyon the Crown with respect to Aboriginal relations thanthat imposed by a fiduciary relationship (Justice Binnie inWewaykum Indian Band)

r) reconciliation of aboriginal peoples and non-aboriginalpeoples and their respective claims interests andambitions (Justice Binnie in Mikisew Cree)



s) in the long process of reconciliation treaty-making is animportant stage but it is only as stage -- the treaty is not acomplete discharge of the duty arising from the honour ofthe Crown but a rededication of it (Justice Binnie inMikisew Cree

t) reconciliation is the overall objective of the modern lawof treaty and aboriginal rights and consultation is key toachievement of this objective -- the signing of Treaty 8was not the end of reconciliation but the beginning(Justice Binnie in Mikisew Cree)

u) the principle of reconciliation over litigation is a bonafide commitment required of the Crown -- it is notpromoted by litigation of cases and rather requires honestand open dialogue (Platinex 2006)

v) reconciliation of the pre-existence of aboriginalsocieties with the sovereignty of the Crown is the goal ofs35 (Justice Phelan in Dene Tha)

w) reconciliation of a just lasting and consensual nature isthe challenge of the present Canadian communityrequiring compromises on all sides -- trials in a courtroomhave the inevitable downside of producing winners andlosers (Justice Vickers in Tsilqotin)

x) reconciliation the time to reach an honourableresolution and reconciliation is with us today (JusticeVickers in Tsilqotin)

y) reconciliation the Province of British Columbia has aconstitutional imperative to engage in reconciliation(Justice Garson BC Supreme Court in Cook v Ministerof Aboriginal Relations and Reconciliation)

z) reconciliation and negotiation are reflected in s 25 ofthe Constitution Act 1982 -- it protects s35(1) purposesand enlarges the reach of measures needed to fulfill thepromise of reconciliation (Justice Bastarache R v KappSupreme Court of Canada)

aa) reconciliation is a process and that process does notend with the making of a treaty -- the process carries onthrough the implementation of that treaty and is guided bya duty of honourable dealing (quoted by Justice DouglasCampbell in Brokenhead First Nations from TreatyCommission of Saskatchewan)

ltltltltgtgtgtgt



NEW 2016 ADDENDUM

Since the original publication of the above essay in 2010 outside of the courts Canada struck a ldquoTruth andReconciliation Commissionrdquo In the 2015 federal election The Liberal and New Democrat Party made generoususe of the term ldquoreconciliationrdquo in their platform After the election the Truth and Reconciliation Commissionwhich tabled its full report in December 2015 Speaking on that occasion Prime Minister Justin Trudeauannounced the Canadian government will work with indigenous leaders and other key partners ldquoto design anational engagement strategy for developing and implementing a national reconciliation frameworkrdquo

The ldquoS-wordrdquo did not appear in the election dialogue although both Liberals and NDP promised to enter into aldquonation to nation relationship with Indigenous Peoplersquo

Also since the 2010 essay as of January 2016 there were 297 court decisions which used the wordldquoreconciliationrdquo with regard to ldquoFirst Nationsrdquo in some context Add ldquosovereigntyrdquo to the mix and the number isreduced to 86 cases Interesting to note that of the 86 over half 46 are British Columbia cases It must be notedtherefore that the jurisprudence developed in this area is highly ldquoBritish Columbia-centricrdquo and involves a placewhere there are not treaties for large area British sovereignty was ldquoassumedrdquo prior to Treaty and settlementwas established prior to Treaty These conditions were not present when the Rupertrsquos Land and North WestTerritory transactions too place at the time of Confederation

2010

In Beckman v Little SalmonCarmacks First Nation52

Justice Binniersquos majority decision baldy states ldquo

[8] Historically treaties were the means by which theCrown sought to reconcile the Aboriginal inhabitantsof what is now Canada to the assertion of Europeansovereignty over the territories traditionally occupiedby First Nations

He does not explain how the Treaties were the means ofreconciliation nor does he acknowledge any sovereigntyfor the ldquoAboriginal inhabitantsrdquo

In the minority decision by Justice Deschamps para 122it is explained that First Nations are in a ldquospecialrelationshiprdquo ldquooriginally based on the recognition ofAboriginal institutions that existed before the Crownasserted its sovereignty that Aboriginal peoples aspeoples can enter into treaties with the Crownrdquo

That is to say the Crown can enter into treaties because itis sovereign but ldquoAboriginal peoples as peoplesrdquo enterinto treaties because the had ldquoAboriginal institutionsrdquowhich existed before the Crown came along

Whatever their authority Justice Binnie saw the treaty asbeing ldquoas much about building relationships as it is about

the settlement of ancient grievances The future is moreimportant than the pastrdquo

2013

In Sgarsquonism Simrsquoaugit (Chief Mountain) v Canada(Attorney General) in the BC Court of Appeal the53

decision of Justice Harris stated

[3] The Nisgarsquoa Final Agreement and the SettlementLegislation acknowledge in their respective preamblesthat the courts have said that reconciliation between theprior presence of Aboriginal peoples and the assertionof sovereignty is best achieved through negotiation andagreement rather than litigation and conflict ThisTreaty took many years to negotiate

The Treaty is an agreement intended to resolve historicclaims advanced for more than a century by the NisgarsquoaNation without litigation or conflict and to lay thefoundation for a productive and positive relationshipbetween the Nisgarsquoa Nation and the non-Aboriginalcommunity

2014

New points of view entered into t he judicial dialogue in2014 in Tyendinaga Mohawk Council v Brant in the54

[2010] 3 SCR 103 2010 SCC 53 (CanLII) para 1052

lthttpcanliicat2df7vgt

2013 BCCA 49 (CanLII) lt53

httpcanliicatfw02jgt

2014 ONCA 565 (CanLII) lt54

httpcanliicatg8856gt



Ontario Court of Appeal It went introduced a discussionof the character of Indian title in Canada which leads intothe question of ldquosovereigntyrdquo It begins with ldquothe seminalcase of St Catharines Milling which it said wasldquostrongly influenced by jurisprudence from the SupremeCourt of the United States such as Johnson v McIntosh(1823) The definition of Indian title in Canada most55

often referenced is found in the decision of the PrivyCouncil at pp 54-55

[T]he tenure of the Indians was a personal andusufructuary right dependent upon the good will of theSovereignhellip [T]here has been all along vested in theCrown a substantial and paramount estate underlyingthe Indian title which became a plenum dominiumwhenever that title was surrendered or otherwiseextinguished

The Court of Appeal continued the chain which deals withldquosovereigntyrdquo by totally ignoring it

[59] The definition of Indian title to land in Canadadeveloped in St Catherinersquos Milling began with theBritish policy from colonial times on the finding ofindigenous people on newly-discovered lands Thatpolicy was that on discovery the indigenous peoplewere the rightful occupants of the land but with only alegal claim to retain possession and use of it

ldquo[T]heir rights to complete sovereignty asindependent nations were necessarily diminishedand their power to dispose of the soil at their ownwill to whomsoever they pleased was denied bythe original fundamental principle that discoverygave exclusive title to those who made itrdquo Calderat 382 citing Johnson v McIntosh

Dickson J in Guerin went on to find at p 378 that theEuropean claims to sovereignty were justified by theprinciple of discovery Although the Court inTsilhqotrsquoin Nation did not address the doctrine ofdiscovery directly it did provide a more completestatement of the character of Aboriginal title at para70 ldquothe right to the benefits associated with the land ndash to use it enjoy it and profit from its economicdevelopmentrdquo

The term used in our jurisprudence is that Indian title issui generis which distinguishes it from normalproperty interests It ldquocannot be transferred sold orsurrendered to anyone other than the Crown and as a

result is inalienable to third partiesrdquo Delgamuukw atpara 113 This has all been reaffirmed in theTsilhqotrsquoin Nation case

The Court of Appeal then signals there are problems withthese constructs

[62] Parenthetically in the past several years the legalprinciple that ldquodiscoveryrdquo by European nations incolonial times gave rise to the astounding consequen-ces to indigenous peoples found by Johnson vMcIntosh and St Catharinersquos Milling has come undercriticism for its use as a valid legal principle

2015

In Haida Nation v Canada (Fisheries and Oceans)56

the court noted without comment that

[14] The 1993 Gwaii Haanas Agreement recognizesthe dual assertions of sovereignty title and ownershipby the Government of Canada and the Haida Nation inGwaii Haanas including both lands and waters

This is the first case where the two sovereignties are setout side-by-side without further comment

ltltltltgtgtgtgt

Thus it is that after a flurry of judicial exposition in the1990s and 2000s led to an igniting of hope with the directwords of Haida Nation in 2004 Indigenous sovereigntyby virtue of prior occupation v the ldquoassumed sovereigntyrdquoof the Crown the discussion of reconciliation of thesovereignty of Indigenous Nations vis-a-vis thesovereignty of the Crown has sputtered out

There was one case which stuck to the clear statement ofHaida Huu-Ay-Aht First Nation v British Columbia(Minister of Forests) 2005 BCSC 697 (CanLII) at para57

94 [Huu-Ay-Aht First Nation] approved by this Court inWiirsquolitswx 1

[94] Haida hellip and Taku River hellip established that theprinciple of the honour of the Crown requires the Crownto consult and if necessary accommodate Aboriginalpeoples prior to proof of asserted Aboriginal rights andtitle This is a corollary of s 35 of the Constitution Act1982 in which reconciliation of Aboriginal and Crown

8 Wheaton 543 21 US 24055

2015 FC 290 (CanLII) lt56

httpcanliicatggq8kgt

Huu-Ay-Aht First Nation et al v The Minister of Forests et57

al 2005 BCSC 697 (CanLII) lthttpcanliicat1kg2jgt



sovereignty implies a continuing process of negotiationwhich is different from the administrative duty of fairnessthat is triggered by an administrative decision that affectsrights privileges or interests

And that was it

The Courts perhaps supported by the reluctance of manylawyers to even mention the subject have successfullyevaded the issue by ignoring it This is accomplished bycontinuing to present the ldquosovereignty of the Crownrdquo asbeing so clear it is beyond discussion while theldquosovereignty of the Indigenous Nationrdquo is pushed out ofsight to be replaced by ldquorights to the landrdquo or ldquorightswhich pre-existed the assumption of sovereigntyrdquo etc

The most recent decision in which the issue arosedismisses the discussion by simply recasting it in verydifferent terms while at the same time not questioning Crown sovereignty It is Chartrand v British Columbia(Forests Lands and Natural Resource Operations)58

which ends up supporting the First Nation position butarrives there by travelling over a very different route

In it ldquorightsrdquo are respected in a way which supportsCrown sovereignty (ldquohonour of the Crown requires thatrespectrdquo) without having to dealing with any thought thatthe rights are derived by indigenous sovereignty

It accomplishes these legal gymnastics by speaking of ldquotheultimate goal of reconciliation of the Crownrsquos sovereigntywith the aboriginal rights enshrined in s 35 of the Constitution Actrdquo (para 178) rather than thereconciliation of two sovereignties

[3] It is settled law that the reconciliation of rightsembedded in claims such as those made in this case bythe KFN with the sovereignty of the Crown requiresthat those rights be determined recognized andrespected While those rights are being determined theCrown acting honourably must consult with the FirstNation before making decisions that might affect theirrights or claims and where indicated accommodatetheir interests

Other cases have avoided the argument by gratuitouslygranting indigenous rights status as being ldquosui generisrdquo

Students of the decolonization of a colonizerrsquos laws mayfind the next decade interesting The Truth andReconciliation Commission has recommended theabolition of the Doctine of Discovery and the UNDeclaration of the Rights of Indigenous Peoples speaks offree prior and informed consent being required for the useof indigenous lands

Stand by Fasten your seatbelts We are expectingturbulence

ltltltltgtgtgtgt


httpcanliicatgkdbdgt

Weesahkay Jack and the Great Flood by Roy Kakegamic



The Supreme Court decision was written by JusticeAntonio Lamer prior to his appointment as Chief Justice

Justice Lamerrsquos Reasons for Decision followed this line

a) although the treaty gives the Hurons the freedom tocarry on their customs and religion it makes nomention of the territory over which these rights maybe exercised

b) as there is no express indication of the territorialscope of the treaty it must be interpreted bydetermining the intention of the parties at the time itwas concluded When the historical context is givenits full meaning the interpretation that is called for isthat the parties contemplated that the rights guaranteedby the treaty could be exercised over the entireterritory frequented by the Hurons in 1760 so long asthe carrying on of the customs and rites was notincompatible with the particular use made by theCrown of this territory

c) This interpretation would reconcile the Huronsneed to protect the exercise of their customs and thedesire of the British conquerors to expand it gave theBritish the necessary flexibility to be able to respondin due course to the increasing need to use Canadasresources in the event that Canada remained underBritish suzerainty and it allowed the Hurons tocontinue carrying on their rites and customs on thelands frequented to the extent that those rites andcustoms did not interfere with enjoyment of the landsby their occupier

d) a provincial park accessible to the public for thepurposes of education and cross country recreationwas a type of occupancy which is not incompatiblewith the exercise of Huron rites and customs Theactivities with which the respondents are charged donot seriously compromise the Crowns objectives inoccupying the park

e) Under s 88 of the Indian Act the Sioui party couldtherefore not be prosecuted since the activities inquestion were the subject of a treaty

ldquoAccordinglyrdquo Justice Lamer wrote

ldquoI conclude that in view of the absence of any expressmention of the territorial scope of the treaty it has tobe assumed that the parties to the treaty of September5 intended to reconcile the Hurons need to protect theexercise of their customs and the desire of the Britishconquerors to expand Protecting the exercise of the

customs in all parts of the territory frequented when itis not incompatible with its occupancy is in myopinion the most reasonable way of reconciling thecompeting interestsrdquo

Justice Lamerrsquos articulation of this task has endured in thejurisprudence namely choosing ldquofrom the variouspossible interpretations of common intention the onewhich best reconciles the interests of parties at the timethe treaties were made

ltltltltgtgtgtgt

The concept of reconciliation echoed in a second decisionby the Supreme Court of Canada shortly after Sioui InSparrow Chief Justice Dickson and Justice La Forest putreconciliation of federal power and First Nation rights assomething to be done voluntarily by the federalgovernment

There is no explicit language in the provision [s35(1)] that authorizes this Court or any court to assessthe legitimacy of any government legislation thatrestricts aboriginal rights Yet we find that the wordsldquorecognition and affirmationrdquo incorporate thefiduciary relationship referred to earlier and so importsome restraint on the exercise of sovereign power Rights that are recognized and affirmed are notabsolute

Federal legislative powers continue including ofcourse the right to legislate with respect to Indianspursuant to s 91(24) of the Constitution Act 1867 These powers must however now be read togetherwith s 35(1) In other words federal power must bereconciled with federal duty and the best way toachieve that reconciliation is to demand thejustification of any government regulation thatinfringes upon or denies aboriginal rights

ltltltltgtgtgtgt

Delgamuukw v British Columbia Justice McFarlane of4

the BC Court of Appeal in 1993 took a different run atthe issue

ldquo[284] During the course of these proceedings itbecame apparent that there are two schools of thought The first is an all or nothing approach which saysthat the Indian nations were here first that they haveexclusive ownership and control of all the land and

1993 CanLII 4516 (BC CA) 104 DLR (4th) 470 bull [1993] 54

WWR 97







ltltltltgtgtgtgt














BCLR (3d) 155












ltltltltgtgtgtgt





























































21 US (8 Wheat) 543 (1823) 9




































Precisely


























































ltltltltgtgtgtgt





1996 CanLII 169 (SCC) [1996] 3 SCR 10115




ltltltltgtgtgtgt


















379-80









ltltltltgtgtgtgt



ltltltltgtgtgtgt





ltltltltgtgtgtgt





ltltltltgtgtgtgt



1999 CanLII 665 (SCC) [1999] 3 SCR 45619



2002 BCSC 1701













ltltltltgtgtgtgt






















ltltltltgtgtgtgt




ltltltltgtgtgtgt













[2003] 3 SCR 371 2003 SCC 7125

2004 SCC 73 [2004] 3 SCR 51126













(2000) 79 Can Bar Rev 252 at p 26227


at p 9














ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt










ltltltltgtgtgtgt














BCLR (3d) 155












ltltltltgtgtgtgt





























































21 US (8 Wheat) 543 (1823) 9




































Precisely


























































ltltltltgtgtgtgt





1996 CanLII 169 (SCC) [1996] 3 SCR 10115




ltltltltgtgtgtgt


















379-80









ltltltltgtgtgtgt



ltltltltgtgtgtgt





ltltltltgtgtgtgt





ltltltltgtgtgtgt



1999 CanLII 665 (SCC) [1999] 3 SCR 45619



2002 BCSC 1701













ltltltltgtgtgtgt






















ltltltltgtgtgtgt




ltltltltgtgtgtgt













[2003] 3 SCR 371 2003 SCC 7125

2004 SCC 73 [2004] 3 SCR 51126













(2000) 79 Can Bar Rev 252 at p 26227


at p 9














ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt















ltltltltgtgtgtgt





























































21 US (8 Wheat) 543 (1823) 9




































Precisely


























































ltltltltgtgtgtgt





1996 CanLII 169 (SCC) [1996] 3 SCR 10115




ltltltltgtgtgtgt


















379-80









ltltltltgtgtgtgt



ltltltltgtgtgtgt





ltltltltgtgtgtgt





ltltltltgtgtgtgt



1999 CanLII 665 (SCC) [1999] 3 SCR 45619



2002 BCSC 1701













ltltltltgtgtgtgt






















ltltltltgtgtgtgt




ltltltltgtgtgtgt













[2003] 3 SCR 371 2003 SCC 7125

2004 SCC 73 [2004] 3 SCR 51126













(2000) 79 Can Bar Rev 252 at p 26227


at p 9














ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt










































21 US (8 Wheat) 543 (1823) 9




































Precisely


























































ltltltltgtgtgtgt





1996 CanLII 169 (SCC) [1996] 3 SCR 10115




ltltltltgtgtgtgt


















379-80









ltltltltgtgtgtgt



ltltltltgtgtgtgt





ltltltltgtgtgtgt





ltltltltgtgtgtgt



1999 CanLII 665 (SCC) [1999] 3 SCR 45619



2002 BCSC 1701













ltltltltgtgtgtgt






















ltltltltgtgtgtgt




ltltltltgtgtgtgt













[2003] 3 SCR 371 2003 SCC 7125

2004 SCC 73 [2004] 3 SCR 51126













(2000) 79 Can Bar Rev 252 at p 26227


at p 9














ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt




































Precisely


























































ltltltltgtgtgtgt





1996 CanLII 169 (SCC) [1996] 3 SCR 10115




ltltltltgtgtgtgt


















379-80









ltltltltgtgtgtgt



ltltltltgtgtgtgt





ltltltltgtgtgtgt





ltltltltgtgtgtgt



1999 CanLII 665 (SCC) [1999] 3 SCR 45619



2002 BCSC 1701













ltltltltgtgtgtgt






















ltltltltgtgtgtgt




ltltltltgtgtgtgt













[2003] 3 SCR 371 2003 SCC 7125

2004 SCC 73 [2004] 3 SCR 51126













(2000) 79 Can Bar Rev 252 at p 26227


at p 9














ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt













































ltltltltgtgtgtgt





1996 CanLII 169 (SCC) [1996] 3 SCR 10115




ltltltltgtgtgtgt


















379-80









ltltltltgtgtgtgt



ltltltltgtgtgtgt





ltltltltgtgtgtgt





ltltltltgtgtgtgt



1999 CanLII 665 (SCC) [1999] 3 SCR 45619



2002 BCSC 1701













ltltltltgtgtgtgt






















ltltltltgtgtgtgt




ltltltltgtgtgtgt













[2003] 3 SCR 371 2003 SCC 7125

2004 SCC 73 [2004] 3 SCR 51126













(2000) 79 Can Bar Rev 252 at p 26227


at p 9














ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt







ltltltltgtgtgtgt


















379-80









ltltltltgtgtgtgt



ltltltltgtgtgtgt





ltltltltgtgtgtgt





ltltltltgtgtgtgt



1999 CanLII 665 (SCC) [1999] 3 SCR 45619



2002 BCSC 1701













ltltltltgtgtgtgt






















ltltltltgtgtgtgt




ltltltltgtgtgtgt













[2003] 3 SCR 371 2003 SCC 7125

2004 SCC 73 [2004] 3 SCR 51126













(2000) 79 Can Bar Rev 252 at p 26227


at p 9














ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt










ltltltltgtgtgtgt



ltltltltgtgtgtgt





ltltltltgtgtgtgt





ltltltltgtgtgtgt



1999 CanLII 665 (SCC) [1999] 3 SCR 45619



2002 BCSC 1701













ltltltltgtgtgtgt






















ltltltltgtgtgtgt




ltltltltgtgtgtgt













[2003] 3 SCR 371 2003 SCC 7125

2004 SCC 73 [2004] 3 SCR 51126













(2000) 79 Can Bar Rev 252 at p 26227


at p 9














ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt















ltltltltgtgtgtgt






















ltltltltgtgtgtgt




ltltltltgtgtgtgt













[2003] 3 SCR 371 2003 SCC 7125

2004 SCC 73 [2004] 3 SCR 51126













(2000) 79 Can Bar Rev 252 at p 26227


at p 9














ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt















ltltltltgtgtgtgt




ltltltltgtgtgtgt













[2003] 3 SCR 371 2003 SCC 7125

2004 SCC 73 [2004] 3 SCR 51126













(2000) 79 Can Bar Rev 252 at p 26227


at p 9














ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt
















(2000) 79 Can Bar Rev 252 at p 26227


at p 9














ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt











ltltltltgtgtgtgt








ltltltltgtgtgtgt








1 2002 SCC 79




2004 SCC 74 [2004] 3 SCR 55031






ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt









ltltltltgtgtgtgt
















32

Heritage) 2005 SCC 69 [2005] 3 SCR 388





ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt








ltltltltgtgtgtgt



ltltltltgtgtgtgt











ltltltltgtgtgtgt






34



35








ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt







ltltltltgtgtgtgt




2006 FC 1354 (CanLII)37

2006 SCC 58 [2006] 2 SCR 846 38


(CanLII)


































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt





































helpfulrdquo









(2002) 17 No 2 CJLS 41 at pp 69-7043



















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt






















(2006) 85 Can Bar Rev 25544





























ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt
































ltltltltgtgtgtgt







ltltltltgtgtgtgt




ltltltltgtgtgtgt

2007 FC 1131 (CanLII)45







ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt









ltltltltgtgtgtgt








ltltltltgtgtgtgt








47

2009 FC 982 (CanLII)48


















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt



















ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt









ltltltltgtgtgtgt

















ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt






ADDENDUM



APPENDIX
































ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt















ltltltltgtgtgtgt



NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt






NEW 2016 ADDENDUM




2010









2013





2014





















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt

















2015





ltltltltgtgtgtgt





8 Wheaton 543 21 US 24055








And that was it










ltltltltgtgtgtgt







And that was it










ltltltltgtgtgtgt




reconciliation: indigenous nation sovereignty v. crown sovereignty

Documents