Recognition and Reconciliation

The underlying purpose of Canadian Aboriginal rights law is “the protection and reconciliation of the interests which arise from the fact that prior to the arrival of Europeans in North America aboriginal peoples lived on the land in distinctive societies, with their own practices, customs and traditions.”

However, in practice and in theory, much of Aboriginal rights law and policy continues to be based on a theory of non-recognition. This may be non recognition of our individual and collective identities, non recognition of the legal nature of our treaties and the unique relationship created by these treaties, or failure to recognize the sovereignty possess by our ancestors, which was never ceded or surrendered and continues to be exercised today

True reconciliation cannot occur on a basis of non recognition and discrimination. Failing to recognize indigenous nations and identities, for example, leaves an open question, as to whom is being reconciled, as many indigenous individuals and indigenous nations continue to be locked in a struggle for recognition of their identities. The legal fiction that government created, funded and recognized First Nations are sufficient proxies for self-governing nations continues, as does the fiction that the only Indians are those who qualify pursuant to a federal statute and who’s names appear in an Indian registry. The situation with respect to Métis peoples can be even more extreme as the existence of a Métis Nation continued to be denied until the government lost a Supreme Court of Canada case in 2002.

While identity remains unsettled, the government continues to deny the aboriginal right to self-government. Whereas the federal government promulgated a 1995 policy on the inherent right to self-government, First Nations continue to struggle for control of lands, resources, territories and delivery of essential services.

Canada has never recognized the nation to nation relationship created by the treaties. First Nations interpret treaties as recognition of our sovereignty and nationhood, whereas Canada appears to view treaties is disclaiming this very same nationhood. Although treaties form the basis of Canada’s sovereignty over most of its claimed territory, the rights guaranteed by the treaties are often perceived as moral or political rights. Indeed, Canada is routinely accused of violating even the most basic of treaty rights. Failure to implement is not limited to 19th Century numbered treaties. Canada is also facing claims that it has not implemented the Nunavut Land Claims Agreement, a treaty promulgated in 1999! The Supreme Court of Canada has noted that it views the treaty making process as a cornerstone of reconciliation. But how strong can that cornerstone be if it is set upon a foundation of non-recognition?

Most invidious is the conduct of Canadian courts in failing to recognize the special nature of Aboriginal rights claims as constitutional claims. Many Aboriginal rights claims are pursued through the civil litigation process. This makes claims remarkably expensive to prosecute and results in remarkably lengthy cases. The expense is particularly problematic because Aboriginal rights claims are filed against the government, which has endless resources. Aboriginal peoples, by contrast, are among the most impoverished in Canada. Although Aboriginal rights claims raise constitutional issues, they are subject to the same strict procedural rules, for example regarding pleadings and evidence, which govern commercial disputes. The inadequacy of the civil litigation framework was tacitly acknowledged by the Supreme Court of Canada in the Haida/Taku cases, which recognized the duty to consult and accommodate. The rationale for the duty to consult and accommodate is to provide interim relief to First Nations, Inuit and Métis while their claims are locked in protracted litigation.

This happens against the backdrop of a body of law badly needing reform. For example, an aboriginal right is defined as a practice which pre-existed contact with Europeans, which is central to a distinct society. This definition is riddled with contradiction and injustice. Defining Aboriginal rights as ‘practices’ undermines the ability of indigenous nations to engage in any meaningful regulation of their own members. Indeed, every potential iteration of a particular practice, hunting, hunting caribou, hunting caribou in May, hunting caribou in May at night, conceivably requires its own proof.

The cultural basis for the Aboriginal rights test has attracted criticism. In essence, focusing on preserving authentic practices of First Nations cultures leads courts to adjudicate on cultural authenticity. This places the law out of step with specialists in the study of culture (anthropologists), many of whom insist there is no precise definition of culture. There is a broad based consensus in the anthropological community that one cannot define culture by reference to practices.

Similarly the requirement to demonstrate a particular practice pre-existed European contact is discriminatory and divisive because it suggests that practices are only authentic if they are racially ‘pure’ practices.

In order for a new Canada to move forward, one in which the pre-existing and continuing sovereignty of indigenous nations, provinces and federal governments can coexist harmoniously, there must be recognition and a clear elaboration of the rights of indigenous nations. There cannot be 'implementation' of aboriginal rights in Canada, if the law itself is incapable of even recognizing aboriginal peoples, or aboriginal rights.

An alternative model, one built on acknowledgement that indigenous nations were once, and continue to be, self-determining political units and on the recognition that indigenous nations retain jurisdictional space – a jurisdictional space which must be reconciled with Canada’s jurisdictional space – can and should be advanced.

To do so, there is a need for indigenous nations to revitalize their own jurisdictions and laws, while reforming Canadian Aboriginal rights law to be capable of recognizing and respecting those jurisdictions and laws.