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IBA Conference Ottawa 2011

Panel: What is reconciliation?

Paul Chartrand, IPC. pchartrand43@yahoo.ca

What is reconciliation?
• SCC: Mikisew Cree 2005 SCC 69, [2005] 3 S.C.R. 388, at para.1 • “The fundamental objective of the modern law of aboriginal and treaty rights is the reconciliation of aboriginal peoples and nonaboriginal peoples and their respective claims, interests and ambitions…”
Paul Chartrand, IPC. pchartrand43@yahoo.ca

Reconciling ‘public interests’
• Every Aboriginal ‘people’ has a right to determine its own vision of its public interest, and to take measures for its identification, recognition, development and protection. • Reconciliation means the reconciliation of an Aboriginal people’s public interest with the public interest of all Canadians.

Paul Chartrand, IPC. pchartrand43@yahoo.ca

Self-determination
• The concept of self-determination that is a fundamental precept in international law means that every people has a right to define its own vision of ‘the good society’, or in other words, to define its ‘public interest’. • The view of Canada’s SCC that reconciliation means reconciliation of interests can be interpreted as uniting constitutional selfdetermination with international law.
Paul Chartrand, IPC. pchartrand43@yahoo.ca

Consent & Compacts
• In Beckman v Little Salmon-Carmacks First Nation SCC Deschamps J: [97] In Reference re Secession of Quebec, 1998 CanLII 793 (S.C.C.), [1998] 2 S.C.R. 217, at paras. 48-82, this Court identified four principles that underlie the whole of our constitution and of its evolution: (1) constitutionalism and the rule of law; (2) democracy; (3) respect for minority rights; and (4) federalism. These four organizing principles are interwoven in three basic compacts: (1) one between the Crown and individuals with respect to the individual’s fundamental rights and freedoms; (2) one between the non-Aboriginal population and Aboriginal peoples with respect to Aboriginal rights and treaties with Aboriginal peoples; and (3) a “federal compact” between the provinces. The compact that is of particular interest in the instant case is the second one, which, as we will see, actually incorporates a fifth principle underlying our Constitution: the honour of the Crown.

Paul Chartrand, IPC. pchartrand43@yahoo.ca

Constitutional Legitimacy, Consent, Treaties & other historic agreements
• Re the Regulation and Control of Aeronautics in Canada [1932] A.C. 54 at 70 (P.C.); …The process of interpretation as the years go on ought not to be allowed to dim or to whittle down the provisions of the original contract upon which the federation was founded…” Lord Sankey, L.C. • Man. Language Rights Reference: “ constitutional legitimacy depends upon the will of the people…” • Mitchell v MNR: “ distinguish between de facto and de jure sovereignty and constitutional legitimacy…” • Paul L.A.H. Chartrand, ‘Reconciling Indigenous Peoples’ Sovereignty and State Sovereignty’ AIATSIS Research Discussion Paper No 26, September 2009. Australia. http://www.aiatsis.gov.au/research/docs/dp/DP26.pdf
Paul Chartrand, IPC. pchartrand43@yahoo.ca

Lands & Territories
• Where SCC refers to the reconciliation of Crown sovereignty with the existence of Aboriginal peoples on their ancient lands and territories, that must be understood as a reference to English constitutional theory whereby the Crown holds allodial title to all lands in the realm. The allodial title is part of Crown sovereignty and therefore can not be alienated. • It is the same for First Nations relationship to their lands and territories. The relationship is inalienable because it is a part of their existence and identity. Therefore the issue is one of competing sovereignties and the SCC has not resolved this theoretical issue. • However, the FNPOA concept proposes that Indian reserve lands are alienable. • Section 2 of the Indian Act defines a reserve as lands held by the Crown.
Paul Chartrand, IPC. pchartrand43@yahoo.ca

What is reconciliation?
• Competing public interests • Recognition that the will of Aboriginal peoples matters for constitutional legitimacy in Canada • Legitimacy depends primarily upon political will and political action • Constitutional reconciliation takes place at the boundary of political and legal action.
Paul Chartrand, IPC. pchartrand43@yahoo.ca

RECONCILIATION: SHARED SOVEREIGNTY SHIFTING PARADIGMS
It shifts thinking towards the recognition that it is not only the existence of Aboriginal peoples, and the possession of their lands that matters in law and politics. The shared approach argues that the political action of Aboriginal people matters in law and politics. The political action mattered historically, and thereby the interests of Aboriginal peoples crystallized into rights recognizable and enforceable within the Canadian and Australian legal systems. Just as discarding terra nullius recognizes the equal human dignity and legal significance of Aboriginal peoples, the shared approach recognizes that the political action of Aboriginal peoples matters equally with those of non-Aboriginal actors in the political processes out of which constitutional and legal norms emerge. This is a forward-looking approach, appropriate for reconciliation. It asserts that Aboriginal peoples’ political action mattered, not only yesterday, but matter today and will continue to matter tomorrow

Paul Chartrand, IPC. pchartrand43@yahoo.ca