Aboriginal Rights, Legislative Reconciliation and Constitutionalism

Abstract

This paper sketches out the idea of ‘legislative reconciliation’ – governments in Canada using their legislative powers to recognize and protect the inherent rights of Indigenous peoples. Legislative reconciliation is needed because the existing approaches to the implementation of inherent rights—negotiation and constitutional litigation—have been insufficient on their own to bring about a mutually respectful relationship between Indigenous and non-Indigenous peoples. Despite the entrenchment of s 35, state governments have not seen themselves as having a role in its implementation in the same way they do for Charter rights. In particular, Canadian governments have not felt compelled to legislate to promote and protect inherent rights. This is in tension with constitutionalism, the idea that governments ought to live their constitutions by respecting and promoting constitutional rights. For too long, Indigenous peoples have not benefitted from similar respect and promotion of their inherent rights, and this has caused them significant harm.

Parliament has only recently started to embrace legislative reconciliation by passing the Indigenous Languages Act and An Act respecting First Nations, Inuit and Métis children, youth and families (FNMICYF Act) in 2019. However, a constitutional reference by Quebec places such initiatives in jeopardy. The province argues that federal legislation recognizing and promoting inherent rights is an unlawful attempt at constitutional amendment if it is not consented to by the provinces or goes beyond the limited interpretation given to s 35 by the courts to date. These arguments deeply misconstrue the nature of inherent rights and the roles of courts and governments in interpreting them. Courts do not create these rights, nor do they have a monopoly in interpreting them. Governments, particularly elected lawmakers, have an important role to play in interpreting and implementing these rights as well, just like Charter rights.

This paper explains the concept of legislative reconciliation and why it is needed and argues that, far from being unconstitutional, legislative reconciliation exemplifies the principle of constitutionalism, and ought to be robustly embraced by Parliament, as well as provincial and territorial legislatures, and encouraged by our courts.

Keywords: Aboriginal rights; Section 35; UN Declaration on the Rights of Indigenous Peoples; Reconciliation