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Reflections on “Reconciliation”: The Supreme Court of Canada

Tansi Nîtôtemtik

As Canada's National Day for Truth and Reconciliation approaches, we at Team ReconciliAction YEG reflect upon what “reconciliation” means . We hear the term being used in every-day conversation, by politicians, in the courts, and within different communities. It has inspired a movement. It has its own hashtag. But what does “reconciliation” actually mean? How do these conceptual ideas affect real people and real communities in their lives on this land?

Artwork: “Every Child Matters” by Hawlii Pichette at Urban Iskwew

Today, we look to the Supreme Court of Canada and reflect upon their words on reconciliation. The Supreme Court’s vision is important because that Court is responsible for upholding the Constitution of Canada. Section 35(1) of the Constitution Act, 1982 recognizes and affirms existing Aboriginal and treaty rights[1] and governs “[A]boriginal people and their rights in relation to Canadian society as a whole.”[2] The Supreme Court has repeatedly held that one of the purposes of section 35(1) is reconciliation.[3] In other words, when any branch of government[4] engages with Aboriginal or treaty rights, it must do so with the guiding purpose of reconciliation. For this reason, the Supreme Court and its vision of reconciliation will inevitably shape the future of reconciliation in Canada.

The Supreme Court has repeatedly held that the purpose of section 35(1) is “to recognize the prior occupation of Canada by organized, autonomous societies and to reconcile their modern-day existence with the Crown’s assertion of sovereignty over them.”[5] In this context, the Supreme Court defines “reconciliation” in two, and perhaps three ways.

The Supreme Court says that section 35(1) engages the honour of the Crown, which “looks back to [the] historic impact” of the “superimposition of European laws and customs on pre-existing Aboriginal societies,”and also “looks forward to reconciliation between the Crown and Aboriginal peoples in an ongoing, mutually respectful long-term relationship.”[6] This raises two possible applications of the term “reconciliation”. First, and most obviously, the phrase “reconciliation … in [a] … relationship” refers to the establishment or restoration of a harmonious relationship between the Crown and Aboriginal peoples. Secondly, and perhaps less explicitly, the phrase “looks back to [the] historic impact [of the Crown’s assertion of sovereignty]" suggests that the three branches of government should acknowledge and accept the uncomfortable reality that the Crown’s assertion of sovereignty caused — and continues to cause — significant pain to generations of Indigenous people.

Thirdly, “reconciliation” establishes legal justification for Canadian law to exist on this land. It recognizes the reality that “Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.”[7] It confirms that “[t]he doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada.”[8] Some Indigenous peoples entered into agreements through treaty,[9] but large swathes of land remain unceded to this day. Section 35(1) therefore seeks to make consistent two seemingly inconsistent realities: it “serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty.”[10]

We ask you, dear reader, to reflect upon these three understandings of "reconciliation". Does the Supreme Court create and uphold a legal fiction to justify the Crown’s assertion of sovereignty over the Indigenous peoples of Canada? Or does it acknowledge the historic injustice of Crown sovereignty and set out a legal path where Indigenous and Non-Indigenous peoples might live together on this land?

How have these understandings of "reconciliation" affected the Indigenous children who are no longer with us? How might they affect children growing up today? What will they mean to the children seven generations from now? Because, at the end of the day, it is about how our understandings of "reconciliation" affect real people.

Because Every Child Matters.

Until next time, ReconciliAction YEG

[1] Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [2] R v Van der Peet, 1996 CanLII 216 (SCC) at para 2. The Supreme Court of Canada defines Aboriginal peoples of Canada as “the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact” and may include groups that are outside of Canada (R v Desautel, 2021 SCC 17 at para 31 [Desautel]). In this post, term "Aboriginal" is used to refer to the Aboriginal peoples as defined by the Supreme Court of Canada. The term "Indigenous" refers to the first peoples of Turtle Island, as defined by their own communities. [3] See Desautel, supra note 2 at paras 25-31. [4] The three branches of government are the legislative branch (i.e. Parliament and the Provincial Legislatures), the executive branch (i.e. Cabinet, Ministers, and government administrators), and the judicial branch (i.e. the courts at all levels, including the Supreme Court of Canada). [5] Desautel, supra note 2 at para 22. [6] Ibid at para 30 (internal quotations removed). [7] Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII) at para 25 [Haida]. [8] Tsilhqot’in Nation v British Columbia, 2014 SCC 44 (CanLII) at para 69. [9] Haida, supra note 7 at para 25. [10] Desautel, supra note 2 at para 31.

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