Table Of ContentFROM RECOGNITION TO RECONCILIATION
Essays on the Constitutional Entrenchment
of Aboriginal and Treaty Rights
More than thirty years ago, section 35 of the Constitution Act, 1982,
recognized and affrmed “the existing aboriginal and treaty rights of the
aboriginal peoples of Canada.” Hailed at the time as a watershed moment
in the legal and political relationship between Indigenous peoples and
settler societies in Canada, the constitutional entrenchment of Aboriginal
and treaty rights has proven to be only the beginning of the long and
complicated process of giving meaning to that constitutional recognition.
In From Recognition to Reconciliation, twenty-three leading scholars
refect on the continuing transformation of the constitutional relationship
between Indigenous peoples and the Canadian state. The book features
essays on themes such as the role of sovereignty in constitutional
jurisprudence, the diversity of methodologies at play in these legal and
political questions, and connections between the Canadian constitutional
.de experience and developments elsewhere in the world.
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r sth patrick macklem is the William C. Graham Professor of Law in the
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rP douglas sanderson is an associate professor in the Faculty of Law at
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From Recognition to Reconciliation : Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights, University of
From Recognition to
Reconciliation
Essays on the Constitutional
Entrenchment of Aboriginal
and Treaty Rights
EDITED BY PATRICK MACKLEM
AND DOUGLAS SANDERSON
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From Recognition to Reconciliation : Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights, University of
© University of Toronto Press 2016
Toronto Buffalo London
www.utppublishing.com
Printed in Canada
ISBN 978-1-4426-3729-0 (cloth)
ISBN 978-1-4426-2885-4 (paper)
Printed on acid-free paper.
______________________________________________________________________
Library and Archives Canada Cataloguing in Publication
From recognition to reconciliation : essays on the constitutional entrench-
ment of Aboriginal and treaty rights / edited by Patrick Macklem and
Douglas Sanderson.
Includes bibliographical references.
ISBN 978-1-4426-3729-0 (bound). – ISBN 978-1-4426-2885-4 (paperback)
1.Native peoples – Legal status, laws, etc. – Canada. 2. Native
peoples – Civil rights – Canada. 3. Native peoples – Canada – Treaties.
4.Native peoples – Canada – Government relations. 5. Reconciliation
(Law) – Canada. 6. Constitutional law – Canada. I. Macklem, Patrick,
author, editor II. Sanderson, Douglas, 1971–, author, editor
KE7709.F76 2016 342.7108'72 C2015-902139-1
.de KF8205.F76 2016
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.sse publishing program of the Canada Council for the Arts and the Ontario
rP o Arts Council, an agency of the Government of Ontario.
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2 © of Canada du Canada
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From Recognition to Reconciliation : Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights, University of
Contents
Acknowledgments ix
Introduction: Recognition and Reconciliation
in Indigenous-Settler Societies 1
patrick macklem and douglas sanderson
Part One: Reconciling Sovereignties
1 Indigenous Peoples and the Ethos of Legal Pluralism
in Canada 17
patrick macklem
.d 2 “Looking for a knot in the bulrush”: Refections on Law,
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r sth mark d. walters
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.sse Canada beyond Sovereignty 63
rP o jeremy webber
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From Recognition to Reconciliation : Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights, University of
vi Contents
6 Indigenous Knowledge and the Reconciliation
of Section 35(1) 164
dale turner
7 Military Historiography, Warriors, and Soldiers: The Normative
Impact of Epistemological Choices 179
jean leclair
Part Three: Constitutional Consultations
8 Consultation and Economic Reconciliation 207
dwight newman
9 The State of the Crown–Aboriginal Fiduciary Relationship:
The Case for an Aboriginal Veto 223
michael j. bryant
10 Administering Consultation at the National Energy Board:
Evaluating Tribunal Authority 237
sari graben and abbey sinclair
Part Four: Recognition and Reconciliation in Action
11 Non-Status Indigenous Groups in Canadian Courts:
Practical and Legal Diffculties in Seeking Recognition 259
sébastien grammond, isabelle lantagne, and natacha gagné
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ser sthg Skeircstitoyn g 3o5v er285
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.sse 13 Overlapping Consensus, Legislative Reform, and
rP o the Indian Act 320
tno douglas sanderson
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From Recognition to Reconciliation : Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights, University of
Contents vii
15 From Recognition to Reconciliation: Nunavut and
Self-Reliance – An Arctic Entity in Transition 389
natalia loukacheva
Part Five: Comparative Refections
16 Constitutional Indigenous Treaty Jurisprudence in Aotearoa,
New Zealand 415
jacinta ruru
17 Constitutional Reform in Australia: Recognizing Indigenous
Australians in the Absence of a Reconciliation Process 449
megan davis and marcia langton
18 Legislation and Indigenous Self-Determination in Canada
and the United States 474
john borrows
Afterword: The Indigenous International and a Jurisprudence
of Jurisdictions 506
michael ignatieff
Contributors 513
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From Recognition to Reconciliation : Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights, University of
Acknowledgments
Contributors to this collection of essays presented earlier versions of
their contributions at a conference occasioned by the thirtieth anniver-
sary of the enactment of section 35 of the Constitution Act, 1982. We
wish to thank the many participants for their constructive comments;
Jennifer Brown and Aboriginal Affairs and Northern Development
Canada, whose generous fnancial support made this event possible;
our funding partner, the National Centre for First Nations Governance,
and its president, hereditary chief Satsan (Herb George); Mayo Moran
for her encouragement and support; and Jennifer Tam for her organiza-
tional assistance. We were fortunate to have Elijah Harper as our elder
for the event, and we mourn his passing. We are also grateful to our
colleague David Schneiderman, who offered valuable comments on the
manuscript as a whole, and Daniel Quinlan of the University of Toronto
.d Press for skilfully shepherding it to publication.
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From Recognition to Reconciliation : Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights, University of
FROM RECOGNITION TO RECONCILIATION
Essays on the Constitutional Entrenchment
of Aboriginal and Treaty Rights
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From Recognition to Reconciliation : Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights, University of
Introduction: Recognition and
Reconciliation in Indigenous-Settler
Societies
patrick macklem and douglas sanderson
On a clear day in early May 1990, two dozen black-gowned lawyers
expectantly rose as one as the justices of the Supreme Court of Can-
ada fled into the courtroom to render judgment in R v Sparrow.1 The
lawyers had reason to be attentive. Sparrow was the frst decision of
the Court to interpret section 35(1) of the Constitution Act, 1982, which
provides that “the existing aboriginal and treaty rights of the aborigi-
nal peoples of Canada are hereby recognized and affrmed.” Section 35
was included in the constitutional reforms that ushered in formulas to
amend the Constitution of Canada without the approval of the Parlia-
ment of the United Kingdom of Great Britain and the Canadian Charter
of Rights and Freedoms. Lower courts across the country had offered a
range of conficting views on its nature and scope. Whatever the out-
come, the Supreme Court of Canada’s decision would have signifcant
.de consequences for the constitutional relationship between Aboriginal
vrese peoples and the Canadian state.
r sth At issue in Sparrow was the constitutionality of federal fshing regula-
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.sse of fshing. The Musqueam First Nation, located in British Columbia, had
rP fshed since ancient times in an area of the Fraser River estuary known
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