Ottawa should jettison its legal adversarial style

The principles respecting the Government of Canada’s relationship with Indigenous peoples recently released by the federal government promise a way forward for Crown-Aboriginal relations. These principles lead me to reflect.

I began my legal career in 1982. As was known then, in most of British Columbia the “Indian Land Question” remained unaddressed and assimilation efforts had scorched many communities. Lands and resources throughout the territories of the Indigenous peoples were being used and exploited without their consent. When I was called to the bar, the newly patriated Constitution of Canada was 10 weeks old. Section 35 recognized and affirmed the Aboriginal and Treaty Rights of the Aboriginal peoples of Canada. I expected that this constitutional affirmation would reset the Crown-Aboriginal relationship; we would now move forward to implement recognition of Indigenous rights to their lands and restoration of their economies. This would be our new reality, a future not just for Indigenous communities but for all Canadians. However, the vision I had was soon dashed. Instead, for more than 30 years the Crown and First Nations have fought in the courtroom. The Constitution recognized Aboriginal rights and title, but federal and provincial governments did not.

In the early cases, the courts made clear that it was a new day. In 1985, in making the order to stop clear-cut logging on Meares Island, the court stated: “There is a problem of tenure that has not been attended to in the past. We are being asked to ignore the problem as others have ignored it. I am not willing to do that.” Several months later the court restrained CNR from constructing a second railway track encroaching onto the Aboriginal fisheries of the Thompson and Fraser rivers and stated that “We cannot recount with much pride the treatment accorded to the native people of this country …. I consider that any uncertainty as to the extent or the existence of native rights should be resolved in favour of the Indian people.”

Despite these decisions, the pattern that emerged from those early days was that in case after case the Crown denied that Indigenous rights existed. “Prove it” was the Crown’s constant refrain. This most adversarial path created uncertainty for all Canadians and the economy. The courts, however, rarely agreed with the Crown’s chosen path — encouraging instead political resolution and negotiations. As the Supreme Court succinctly explained: “Let us face it, we are all here to stay.” Yet there was no real take up and court battles continued even though this was obviously not the way to reconciliation. A future together could not be built in that “winner takes all” forum.

In 2004, in another rejection of the “prove it” approach, the courts articulated legal requirements for Crown conduct: there is a duty to consult with and accommodate First Nations when any development is proposed on traditional lands. Remarkably, these obligations did not move us onto a path of recognition. Rather, the use of the courts intensified and conflict increased. Consultation processes are often argumentative, combative and inauthentic. There are rarely efforts to build understanding and consent. Recent challenges to the Crown’s conduct in approving Northern Gateway, Site C, Kinder Morgan, and Enbridge’s Line 9 underscore the ongoing conflict. Even following the historic Tsilhqot’in decision, we have not been able to land outside of the courtroom.

Since section 35, Crown governments have refused to embrace recognition of the rights and title of First Nations as the starting place for partnership. Canada’s new principles express the shift to patterns of relations that always should have guided us — in which the government, laws, jurisdiction, and inherent rights of Indigenous peoples are recognized.

Recognition of rights and title was entrenched in our Constitution. As a young lawyer, it seemed clear that recognition of the inherent rights of Indigenous people was the path for building a future together. That still seems obvious to me. These principles aim to finally get us onto that path. There is much work to be done. And this involves all of us, engaging with respect and humility.