Agent of Reconciliation: The Supreme Court of Canada and Aboriginal Claims

The idea of “reconciliation” has gained considerable prominence as of late in both the political and judicial branches of government when discussing issues dealing with the competing interests of groups within Canadian society. The term connotes the re-establishment of harmony and good relations. On its surface, the idea of reconciliation appears neutral and does not contain any preconceived assumptions about political views or positions. It is also forward looking and does not dwell on past acts. Thus, it is an attractive idea and potentially very useful as a concept to forge new and positive relations in Canadian society. Its value as a concept has not gone unnoticed by the Supreme Court of Canada and has become the locus of judicial thought about Aboriginal- Canadian relations.Indeed, the Supreme Court of Canada declares itself to be an “agent of reconciliation” between Aboriginal peoples and non-Aboriginal peoples in Canada. To a certain extent, this responsibility has been unwillingly foisted onto the court by the failure of past Constitutional talks to further delineate and define the meaning of section 35(1) of the Constitution Act, 1982. The failure of these political negotiations has now resulted in the Supreme Court of Canada taking the lead responsibility in determining the legal and political nature of the relationship that will exist between Aboriginal peoples and Canadians. Increasingly, Parliament more often than not, finds itself in a reactionary position. For example, in both Delgamuukw and Corbiere the government of Canada is forced into crisis management to adequately respond to the Supreme Court of Canada’s radical changes to the rules of the game. However, in taking such a decisive role in managing Aboriginal- Canadian relations, the Court may have placed the judiciary beyond its proper role as a third branch of government in Canada.Beginning with its decision in Sparrow, the S.C.C. has opted to read into s. 35(1) of the Constitution Act, 1982, an analogous section 1 Charter type of analysis that allows governments to justify its infringement of Aboriginal and Treaty rights protected in the Constitution under certain circumstances. This occurs at the “justification” part of the legal test for interpreting s. 35(1), where the court determines under what circumstances it is justifiable for the government to interfere in the exercise of Aboriginal and Treaty rights.Assuming such a role is no doubt appropriate in the context of limiting “individual” rights where the interests of society as a whole “demonstrably justify” doing so. However, it is inappropriate in the context of determining the rights and responsibilities as between “peoples”. Since s.35 deals with collective rights, the direction of the Supreme Court seems somewhat misguided. The author intends to argue that it is inappropriate for the judiciary to be involved in decisions regarding the merits of when the constitutional rights of one political community in Canada can interfere with competing constitutional rights of another political community. The author argues that it is far more appropriate a role for the courts to limit itself to monitoring the process of negotiations between representatives of the Canadian government and representatives of Aboriginal peoples to ensure negotiations are carried on in a fair and equitable manner. Once the court determines that there is an Aboriginal right protected by the Constitution, the necessary step of reconciliation of the Aboriginal or Treaty right belongs to the parties themselves and not the judiciary. The Quebec Reference case reflects this approach and it is a model that ought to be adopted in the interpretation of section 35(1).

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