Preface: Towards Reconciliation

I remember a time (in the summer of 1990) when, as a freshly trained lawyer heading home to my reserve to work on fishing rights and land claims, I believed that law was the answer. The law that I had in mind was Canadian constitutional law, s. 35 of the Constitution Act, 1982 to be precise. 1 Section 35 recognizes and affirms the "existing aboriginal and treaty rights" of the aboriginal peoples of Canada. The Supreme Court of Canada had just released its inaugural decision on s. 35 in the case of R. v. Sparrow. 2 Employing a generous and liberal interpretive approach, the Court held that aboriginal rights not extinguished by clear and plain legislative intent prior to 1982 were thereafter protected from Crown extinguishment. However, their exercise remained subject to regulatory infringement after 1982, provided a strict justification standard could be satisfied by the Crown. With a zealous confidence, the recollection of which now makes me cringe, I exhorted our chief and council to raise a Sparrow challenge to the prosecution that our fishers were facing for exceeding quotas Ontario had imposed in 1984, arguably in violation of our aboriginal and treaty rights. As it turned out, we won our case. 3 You see, this was a time when the Sparrow test was one that First Nations were capable of meeting. In 1996, aboriginal rights would be restricted by the Van der Peet decision to only those practices that could be proven to have been integral to our distinctive precontact cultures. 4 And in the companion case, R. v. Gladstone, reconciliation became a vehicle for infringement in the name of non-aboriginal appeasement. 5 Justifications for interfering with aboriginal constitutional rights were extended from rationales connected to maintaining aboriginal rights, or ensuring they were not "exercised in a dangerous way," to include public interest rationales previously rejected, such as pursuit of economic and regional fairness. 6 And still I cringe, because I did not anticipate the turn that s. 35 jurisprudence would take. If our win had been appealed, we could not have made it to the Supreme Court before 1996 when Van der Peet and Gladstone turned the tables.

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