Reconciliation and the Supreme Court: The Opposing Views of Chief Justices Lamer and Mclachlin

2 Indigenous Law Journal 1-26

25 Pages Posted: 11 Sep 2013

See all articles by Kent McNeil

Kent McNeil

York University - Osgoode Hall Law School

Date Written: 2003

Abstract

The Supreme Court of Canada has said that Aboriginal rights were recognized and affirmed in the Canadian Constitution in 1982 in order to reconcile Aboriginal peoples’ prior occupation of Canada with the Crown’s assertion of sovereignty. However, sharp divisions appeared in the Court in the 1990s over how this reconciliation is to be achieved. Chief Justice Lamer, for the majority, understood reconciliation to involve the balancing of Aboriginal rights with the interests of other Canadians. In some situations, he thought this could justify the infringement of Aboriginal rights to achieve, for example, economic and regional fairness. Justice McLachlin, on the other hand, in strongly worded dissent, regarded infringement for such purposes as unconstitutional. In her opinion, reconciliation can best be achieved through negotiation and the time-honoured process of treaty making.

Keywords: reconciliation, supreme court, decision, judge, justice, aboriginal, rights, constitution

Suggested Citation

McNeil, Kent, Reconciliation and the Supreme Court: The Opposing Views of Chief Justices Lamer and Mclachlin (2003). 2 Indigenous Law Journal 1-26 , Available at SSRN: https://ssrn.com/abstract=2323526

Kent McNeil (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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