A CLOSER LOOK AT “LEGAL”
RECONCILIATION
35(1) AND THE SUPREME COURT OF
CANADA
1982 TO 2011
WAS ONLY THE BEGINNING
Outline
• Apology
• The concepts of “legal” and “social”
reconciliation
• “Legal” reconciliation as a Common Law
process
• “Legal” reconciliation as a process outside the
Courts
• Conclusions
Apology
• My topic is not exactly that provided to Insight
• My retirement project is slowly writing a book
on the Canadian doctrine of Reconciliation
• Research is ongoing
• Lot of history, case law, legal, political science,
philosophical, anthropological and other
commentary to read
• By 2009, I concluded the Doctrine of
Reconciliation is “complex”
Apology
• The doctrine consists of at least two inter-related and
mutally inter-dependent aspects
• “Legal” reconciliation – reconciling indigenous and nonindigenous law in the context of an ongoing Canada
• “Social”reconciliation – reconciling indigenous societies
with non-indigenous society in same context
• I did agree to talk about both today
• Closer analysis suggests “legal” reconciliation is also
“complex” – I am still fathoming that complexity
• So today, I offer some thoughts on “legal” reconciliation
• Maybe in 2012 I can offer some thoughts derived from
looking more closely at “social” reconciliation.
“Legal” and “Social” Reconciliation
• The Constitution Act 1982, Section 35(1) is a
practical starting point
• 35(1) legally was almost entirely obscure in
1982
• By 2004, 35(1) rights were mostly legally
“absorbed” into Common Law by SCC
decisions
• “Absorbed” in sense that legal treatment of
35(1) rights became legally predictable
“Legal” and “Social” Reconciliation
• SCC says the central meaning of 35(1) is
“reconciliation”
• “Reconciliation” of laws achieved by SCC
expressly stated and other legal processes ;
and
• “Reconciliation” of societies achieved (with
legal assistance) in “new relationships” of
innovative social policy
“Legal” Reconciliation as a Common
Law Process
• In 1982, the politicians had not the time,
inclination or knowledge to work out the
meaning of 35(1)
• That project was assigned to the judiciary
• Defining the place of 35(1) “existing aboriginal
and treaty rights” was entrusted to the
rational processes of the Common Law
“Legal” Reconciliation as a Common
Law Process
• The Common Law can “absorb” previously
unknown unique rights
• “Absorb” does not necessarily mean “extinguish”
• “Absorb” means render rights from outside the
Common Law into part of the Common Law
• “Absorption” is only part of “legal” reconciliation
• Long known to legal historians but not called
“reconciliation”
“Legal” Reconciliation as a Common
Law Process
• Legal history provides interesting insights into
how the Common Law deals with unique
Customary Law
• Medieval England was divided among about
26,000 manors
• Each manor had its own courts and legally
binding Customary Law
• Most of the wealth and population was located
on manors and controlled by local Customary Law
“Legal” Reconciliation as a Common
Law Process
• The Common Law of the central Royal Courts that
bound all Englishmen in respect of issues of law
and equity determined by them was separate
from the Customary Law of the manors that
defined most important everyday rights for
almost all Englishmen
• Most everyday rights depended upon binding
custom which could be found locally in written
manorial court records and in the testimony of
the oldest people living in the manor (elders).
“Legal” Reconciliation as a Common
Law Process
• By 1922, nothing remained of all such Customary
Law
• For about 500 years, starting in the 15th century,
cases relating to Customary Law increasingly
appeared in the Royal Courts of Common Law
and Equity
• The Royal Courts made order out of the mass of
sui generis Customary Law
• The Royal Courts’ great authority made their
decisions preferable to the manor records, the
memory of elders and local judgements
“Legal” Reconciliaton as a Common
Law Process
• The primary rational process of the Common Law
is to find legal principles that fairly govern similar
but unique legal circumstances
• This process allowed for the “absorption” and
eventual extinction of manorial Customary Law
• Rights under manorial Customary Law had no
35(1)-type protection – last ones were
extinguished by statute in 1922
• This rational process of absorption is a part of
“legal” reconciliation in Canada
“Legal” Reconciliation as a Common
Law Process
• For Example:
• Guerin (1984) one aboriginal right found to be sui
generis so as to define for the Common Law the
legal nature of all aboriginal rights
• “Sui generis” is not an insult, it is the rational
Common Law mechanism for absorbing the
legally unique and previously unknown
• Sparrow (1990) one sui generis aboriginal right
used to define how all such rights can be
infringed by adapting existing administrative law
concepts to Crown/Indigenous relations
“Legal” Reconciliation as a Common
Law Process
• Sparrow emphasizes negotiation, not
reconciliation – no S. African Truth and
Reconciliation Commission (“TRC”) had
happened by 1990
• Van der Peet (1996) decided only “distinctive
features” within indigenous Customary Law are
35(1) constitutionally protected rights
• 35(1) rights derive from Customary Law but
procedural and substantive Customary Law detail
is neither constitutionally protected nor
necessarily extinguished
“Legal” Reconciliation as a Common
Law Process
• Gladstone (1996) The Common Law ignores
Customary Law’s internal controls on a 35(1)
protected right in favour of limitation on the
35(1) right by regulation
• 1996 was after the TRC, so the concept of
“reconciliation” was enunciated to be the
fundamental to meaning of 35(1)
“Legal” Reconciliation as a Common
Law Process
• Haida (2004) Systematically explains 35(1) in the
context of reconciliation
• Crown assertion of sovereignty engaged the
honour of the Crown in a complex endlessly
ongoing reconciliation process
• Examples of that process include
• (i) negotiation of treaties
• (ii) justification by consultation and
accommodation
“Legal” Reconciliation as a Common
Law Process
• (iii) establishment of specialized regulatory
schemes to judge adequacy of consultation
• (iv) establishment of guidelines re claims
• (v) negotiation( as preferable to litigation)
• (vi) the ongoing operation of the Common
Law through litigation of 35(1) rights
• List heavily weighted to “legal” reconciliation,
mechanisms to “absorb” indigenous
Customary Law – far from complete!
“Legal” Reconciliation as a Common
Law Process
• Express recognition of what general
administrative law principles have to teach about
procedurally fair dealing with 35(1) rights
• Description of the spectrum of the required
depth of consultation appropriate to facts
• Description of tests of “correctness” for
consultation process and “reasonableness” for
administrative decisions derived from
consultation
“Legal” Reconciliation as a Common
Law Process
• Delgamuukw (1998) Application of principles
adopted for personal property in pre-1998 cases
to real property with different tests for existence
and limitations
• Normal Common Law treatment of real property
being different from personal property
• Mikisew Cree (2005) Modern treaty terms are
subject to Common Law principles of contract
• Both cases demonstrate “legal” reconciliation
according to the ancient, rational Common Law
“absorption” process
“Legal” Reconciliation as a Common
Law Process
• Little Salmon (2010) General administrative
law applies to Crown relations with all
Canadians
• Specialized “indigenous reconciliatory
administrative law” also applies to Crown
relations with indigenous Canadians
• When will “indigenous reconciliatory
administrative law” appear in Canadian
administrative law texts?
“Legal” Reconciliation as a Process
Outside the Courts
• “Legal’ Reconciliation is not all about proving and
of 35(1) rights and dealing with infringement
• “Legal” Reconciliation is a very long term process
– 35(1) guarantees rights “forever”
• It includes the legal processes expressly
contemplated in Haida
• Common Law has not given constitutional
protection to all rights extant under indigenous
Customary Law but has not necessarily
extinguished all constitutionally unprotected
Customary Law
“Legal” Reconciliation as a Process
Outside the Courts
• We should not be blinded by the grandeur and
authority of the “Royal Court”, today, the SCC
• “Legal”Reconciliation can happen anywhere, not
just in Ottawa
• We need to look more closely at legal
mechanisms of reconciliation not mentioned by
the SCC
• Surviving indigenous Customary Law has a place
in the everyday life of indigenous and the
understanding of non-indigenous Canadians
“Legal” Reconciliation as a Process
Outside the Courts
• Why?
• Reconciliation of individuals and groups is a profound
human process
• Like “love” or “hate”, it has been known in all times and
in all places
• Reconciliation seems to rely upon mutually understood
truths that allow individuals and groups to understand
each other better and be “reconciled”
• This applies to finding truth in respect of legal systems
as much as the traditional reconciliatory processes of
finding truth, regret, apology and forgiveness
“Legal” Reconciliation as a Process
Outside the Courts
• The best efforts of Canadian judges have
produced a relatively comprehensive system of
high-level “legal” reconciliation relating to
protected 35(1) rights
• It is not going to change much – precedent is
precedent
• “Indigenous reconciliatory administrative law” is
a high level, truth-seeking, reconciliatory formula
that may need administrative reforms to work
more smoothly – (remember Haida)
“Legal” Reconciliation as a Process
Outside the Courts
• “They who forget history are doomed to repeat
it”
• Note the former dominance of sui generis
manorial law and its total disappearance
• Note early medieval Italy where each person was
governed by the laws of his or her ancestors
while in the same communities – for centuries
• Note that indigenous Customary Law based on
family unity and peace is very similar to early
Anglo-Saxon Customary Law based on family
unity and peace – family wanes as state waxes
“Legal” Reconciliation as a Process
Outside the Courts
• Note that the Norman invaders of England became
expert in and generally applied indigenous English law
and their subjects recognized that law as “legitimate”
• “Legitimacy” of law is another “profound” concept –
humans are comfortable with just laws of their own
making but resist even just laws that are imposed from
outside their traditions
• See how much support you could get for replacing the
Common Law with Civil Law in Canada, the U.K., the
U.S., India, Australia, New Zealand etc.
“Legal” Reconciliation as a Process
Outside the Courts
• Note the wisdom of the Truth and Reconciliation
Commissions in 40 countries as of 2009
• Reconciliatory processes have not allowed entire
populations to forgive and forget but can greatly
reduce the “unforgiveness” of large parts of
divided populations
• Much reconciliation is about healing the dignity
of the victim and, thereby, restoring the dignity of
the oppressor
“Legal” Reconciliation as a Process
Outside the Courts
• Note that world history knows of many groups reduced to
hereditary underclass status
• Helots of Sparta
• Dalits of India
• Burakumin of Japan
• Cagots of France
• Many Afro-Americans
• Note the growth in the Canadian indigenous population but
an educational failure to maximize its potential, and
thereby its dignity, risks hereditary underclass status for
many indigenous people in Canada
“Legal” Reconciliation as a Process
Outside the Courts
• The stakes are high in achieving the profound
“Reconciliation” promised by 35(1)
• Thinking about how to achieve such profound
“Reconciliation” is worthy of careful thought
• Hence “peeling the reconciliation onion” into
its inter-related “legal” and “social” parts
• Hence starting with the question, “After SCC
high level analysis, what can be done to
achieve “legal” reconciliation?”
“Legal” Reconciliation as a Process
Outside the Courts
• There will inevitably continue to be 35(1)
cases in the SCC - but less, given predictable
results
• Canadian governments need to create
comprehensive and reasonably uniform codes
relating to appropriate consultation
• “Consultation” cases should go to new
specialized tribunals to which the courts can
defer
“Legal” Reconciliation as a Process
Outside the Courts
• Federal legislation needs to replace the Indian
Act with modern dignified legislation that
does not erode the dignity of both indigenous
and non-indigenous Canadians
• Changing the name would be a start
• At least the federal ministry has now changed
its name
“Legal” Reconciliation as a Process
Outside the Courts
• The making of modern treaties is enormously
difficult
• The final result can be legally almost unintelligible
• There has been “game playing” – translations
• As noted yesterday, for some First Nations,
entering into a tready has become an
unattractive option
• The whole theory and practice of modern treaties
may need a re-think
“Legal” Reconciliation as a Process
Outside the Courts
• Those developing effective local indigenous
governance systems can learn from the lessons of
history
• Band government under the Indian Act has often
been corrupt, not respected and uncomfortable
as not “legitimate” for the people living with it
day to day
• History suggests reform of governance structures
based on legitimacy through flexible use of sui
generis Customary Law dovetailed with modern
transparent governance techniques
“Legal” Reconciliation as a Process
Outside the Courts
• One size does not fit all
• Sui generis is not an insult it is a fact of life
• The detail of Customary Law does not have to be
constitutionally protected to work in the daily
lives of people who treat it as legitimate and find
it comfortable
• Modern transparent governance techniques
could economically be based on multi-community
institutions providing regular audit functions
“Legal” Reconciliation as a Process
Outside the Common Law
• The lesson that family-based indigenous law
parallels the kindred-based law of the
ancestors of non-indigenous Canadians is a
truth that lends mutual understanding and,
thereby, mutual dignity to acceptance of
innovative indigenous governance and justice
structures
• Waning of Family and waxing of State has
been too sudden and can be reversed
“Legal” Reconciliation as a Process
Outside the Courts
• The lesson of early medieval Italy and the long
toleration of different legal systems working next
to each other while slowly growing together
suggests that modern governance structures be
flexible, be subject to comfortable reform and
can be understood by non-indigenous Canadians
• Immutable laws ignore progress and presage
isolation and underclass status
• The time horizon of reconciliation is forever
“Legal” Reconciliation as a Process
Outside the Courts
• “New Relationships” entail a mass of legal documentation
somewhat like traditional international diplomatic forms:
• IBAs started some of the earliest “new relationships”
• Modern indigenous peoples legislation (FN Finacial
Transparency Act etc.)
• Memoranda of understanding
• Resource revenue sharing agreements
• Reconciliation agreements
• Land use legislation
• Specific Claims reform etc. etc.
• All are but examples of “legal” reconciliation outside the
Courts
Conclusions
•
•
•
•
Reconciliation must succeed
The stakes are too high to fail
Reconciliation is complex and needs analysis
“Legal” reconciliation needs to move on from SCC
Common Law “absorption” of 35(1) rights
• “Legal” reconciliation needs to be creatively applied as
an ongoing process outside the courts
• Such application should always respect and be guided
by the “profound” nature of reconciliation in both its
inter-related aspects if it is to be profoundly
reconciliatory