Back to the future - reconciliation and indigenous sovereignty after Tsilhqot'in.

• Author: Hoehn, Felix
• Position: Canada

The Final Report of the Truth and Reconciliation Commission of Canada (TRC) and its 94 calls to action are an ambitious blueprint for reconciliation between Aboriginal and non-Aboriginal Canadians. (1) The overwhelmingly positive political reception the Report received gives grounds for optimism that these recommendations can be a vehicle for reconciliation. Prime Minister Justin Trudeau issued a statement promising, among other things, a "total renewal of the relationship between Canada and Indigenous peoples. We have a plan to move toward a nation-to-nation relationship based on recognition, rights, respect, cooperation and partnership ..." (2) He promised to "fully implement the Calls to Action of the Truth and Reconciliation Commission, starting with the implementation of the United Nations Declaration on the Rights of Indigenous Peoples." (3)

This paper will focus on the TRC's calls to remove the doctrine of discovery from Canadian law. These calls conflict with the doctrine of Aboriginal title, including the Supreme Court of Canada's recent decision of Tsilhqot'in Nation v British Columbia. (4) This decision has justifiably been hailed as an important step toward repairing relationships with Indigenous peoples,5 * even though its potential for furthering reconciliation is compromised by its reliance on the doctrine of discovery, which should long ago have been discarded as a disgraced part of Canada's colonial past. Therefore, Tsilhqot'in represents both the past and the future. It is a manifestation of the past because it applies the immoral and discriminatory doctrine of discovery to the prejudice of Indigenous peoples. At the same time, it points the way to the future, because it implicitly recognizes the sovereignty and territories of Indigenous nations. This holds the potential of leading toward the nation-to-nation relationship and partnership envisaged by the Prime Minister and the Truth and Reconciliation Commission.

Canadian Aboriginal law in general and the doctrine of Aboriginal title in particular, rely on the doctrine of discovery to explain how the Crown gained sovereignty without the consent of Indigenous nations. It does so by denying the sovereignty of Indigenous nations. (6) Having thus supposedly rendered the land free of sovereign powers, the Crown's sovereignty could fill this vacuum and be effective just by being asserted. The results of this racist and ethnocentric legal fiction are not just of academic interest--they have real and detrimental practical and legal implications. (7)

In spite of the entrenched position of the doctrine of discovery in Canadian Aboriginal law, the Supreme Court of Canada has recognized Indigenous sovereignty both explicitly and implicitly in a number of contexts. In Tsilhqot'in, Indigenous sovereignty could not be directly in issue because a claim for Aboriginal title as presently understood necessarily concedes an underlying Crown title. In spite of this, the Supreme Court's formulation of Aboriginal title implicitly acknowledges the need to reconcile Aboriginal title and Aboriginal sovereignty with the Crown's title and Crown sovereignty.

The purpose of this paper is to suggest that the time has come for the Supreme Court of Canada to cure Canadian law from its dependence on the doctrine of discovery. Maybe it was once considered necessary to cling to this disparaging fiction, but its time has passed. The Truth and Reconciliation Commission got it right when it said that we no longer need the doctrine of discovery because we have other means of supporting Crown sovereignty. (8)

Since the doctrine of discovery denied Indigenous sovereignty, abolishing this doctrine will allow Indigenous sovereignty to be recognized. The Supreme Court has already taken us to the threshold of a new paradigm of Aboriginal law with decisions that recognized the sovereignty of Indigenous nations and the need for treaties to reconcile sovereignties. Nonetheless, Tsilhqot'in contains too many elements of the old paradigm that rely on the discovery doctrine. At the same time, it also reflects some elements of a new paradigm that recognizes Indigenous sovereignty. (9)

This paper argues that Canada is ready to shed the discovery doctrine, and that it is time for the Supreme Court to reclaim the catalytic role toward reconciliation that it played when it rendered its decision in Calder v British Columbia (Attorney General). (10) At that time, recognizing Aboriginal title as an enforceable legal right was a necessary and important step toward a just settlement for Indigenous peoples, even though it relied on the doctrine of discovery. It took more than 40 years to go from Calder to Tsilhqot'in, the first judicial recognition of the title an Indigenous nation held in its territory. In the meantime, Canadian society has matured to a point where it is wants true reconciliation with Indigenous peoples as equal partners in Confederation, and Canadian Aboriginal law has matured because it has developed the outlines of a post-discovery doctrine theoretical framework.

The purpose of this paper is to underline the importance of moving to this framework, and to describe some of the elements of that framework that already exist in Canadian law.

1. THE FUTURE OF RECONCILIATION--THE TRC AND CALLS FOR AN END TO THE DISCOVERY DOCTRINE

   The Truth and Reconciliation Commission (TRC) has helped to bring the need for reconciliation into the consciousness of Canadians. The TRC was part of a response to the legacy of Indian Residential Schools, which was intended to acknowledge the injustices and harms this system brought to Indigenous people and the need for healing. (11) Political support for implementing the TRC's recommendations appears to be widespread among Canadian leaders. Prime Minister Justin Trudeau's unqualified support has already been referred to above. Almost half a year earlier, Canada's provincial and territorial leaders had already promised to implement all the TRC's recommendations. (12)

   This brief summary cannot do justice to the scope, depth, and documentation offered by the TRC's Final Report, and cannot begin to offer an adequate depiction of the vast and tragic scale of the harm that was caused by colonialism in general and residential schools in particular. Nevertheless, it might be possible to gain some sense of what follows in the Final Report from the first paragraph of the introduction to the first volume:

   For over a century, the central goals of Canada's Aboriginal policy were to eliminate Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social, cultural, religious, and racial entities in Canada. The establishment and operation of residential schools were a central element of this policy, which can best be described as "cultural genocide." (13) If only we could confidently speak about this legacy of colonialism in the past tense. For example, the latest statistics show that the percentage of inmates in Canadian prisons that are Aboriginal has reached a record high of over 25%. Correctional Investigator of Canada, Howard Sapers attributed the increasing numbers to poverty, colonialism and the effects of the residential school system as reasons why alcoholism and other problems bring so many Aboriginal people in conflict with the justice system. (14) Another example of colonialism continuing to operate in Canada is the doctrine of discovery, which is a fundamental part of the Canadian law of Aboriginal title.

   Faced with the daunting scale of the task of reconciliation, it was appropriate for the TRC to recommend changing many laws, norms and practices of Canadian society. The TRC defined reconciliation as "an ongoing process of establishing and maintaining respectful relationships." (15) This is a multi-faceted process, and includes apologies, reparations, and actions that demonstrate a true change in society. Indigenous laws and governance systems should be revitalized, and "as non-Aboriginal Canadians increasingly come to understand Indigenous history within Canada, and to recognize and respect Indigenous approaches to establishing and maintaining respectful relationships, Canadians can work together to forge a new covenant of reconciliation." (16)

   The TRC found that Indigenous peoples recall the original relationship of mutual support, respect and assistance they had with the Crown, which was confirmed by the Royal Proclamation of 1763 and treaties that their leaders negotiated in good faith. The trust has been broken, however, because of the impacts of residential schools, the Indian Act, and the Crown's broken treaty promises. To repair this trust, the TRC has called for "a new vision for Canada - one that fully embraces Aboriginal peoples' right to self-determination within, and in partnership with, a viable Canadian sovereignty." (17) This is needed to resolve long-standing conflicts between the Crown and Aboriginal peoples over Aboriginal and treaty rights, lands, resources, education and health. The TRC warned that failing to find this new vision would prevent reconciliation from happening, and the unrest seen today among young Aboriginal people could become a challenge to Canada's security and well-being. (18)

   The TRC observed that Indigenous peoples and the Crown have different and conflicting views about how to achieve reconciliation. The federal government appears to believe that reconciliation required Indigenous peoples to accept "the reality and validity of Canadian sovereignty," while Indigenous people see reconciliation "as an opportunity to affirm their own sovereignty and to return to the 'partnership' ambitions they held after Confederation." (19)

   1. United Nations Declaration on the Rights of Indigenous Peoples

      The TRC adopted the United Nations Declaration on the Rights of Indigenous Peoples (20) as a framework...