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McLachlin, Beverley --- "Aboriginal peoples and reconciliation" [2003] CanterLawRw 10; (2003) 9 Canterbury Law Review 240

ABORIGINAL PEOPLES AND RECONCILIATION

Right Honourable Beverley McLachlin, p.C^[*]

More than five centuries ago, a movement began stirring on the western fringes of Europe - a movement that was to change the world forever: European colonization. From time to time in history, great Empires had set about conquering other peoples - one thinks of Alexander the Great, the Romans and the Great Mongol Emperors. But never before had a number of nations - Spain, France, England, Belgium and eventually Germany — seen as their right and destiny, the occupation and resettlement of what were termed 'less advanced lands'. Colonization was spurred by a powerful complex of motives: on the economic front, new resources and markets; on the religious front, heathens to redeem and save; on the national front, greater glory and prestige. And it was justified by a philosophy of presumed superiority and right. Yesterday, in the Christchurch Museum, I saw an English handbill proclaiming that when a nation by its arts and economy had reached a stage that permitted colonization, and when that nation's population exceeded the capacity to support its peoples, then it was just and right that it should occupy the less developed parts of the earth. Spurred by this ethos, European colonization claimed the rest of the world. Africa, India, Asia, the Antipodes, South America and North America - all were occupied by European settlers.

My purpose in reciting these facts is neither to condemn nor praise, but merely to remind us that colonization is indeed a fact — an historic global phenomenon with profound effects, which we are still struggling to come to grips with at the dawn of the 21^st century.

Colonization, wherever it occurred, meant a clash of cultures. The old and the new. The indigenous and the European. The Aboriginal and the 'white'. Different nations approached it in different ways. Spain and France tended to the conquer and absorb model. In Australia, the ruling concept for a long time was the idea that despite the presence of Aboriginal peoples, the land was terra nullius, without legal ownership, and hence open for the taking, a doctrine finally rejected by the Australian High Court inMabo late in the 20^th century. The English in Canada and New Zealand took a different approach, acknowledging limited prior entitlement of indigenous peoples, which required the Crown to treat with them and obtain their consent before their lands could be occupied. In Canada - indeed for the whole of North America - this doctrine was cast in legal terms by the Royal Proclamation of 1763, which forbad settlement unless the Crown had first established treaties with the occupants. When the United States won its independence, this idea persisted in Chief Justice Marshall's recognition of Aboriginal sovereignty over traditionally held lands and imposed an obligation on the government to protect the interests of these 'domestic dependent nations'. This was the theory. Application, sadly, was often another story. In the United States, successive betrayals and displacements of Indians to permit settlement - complete with accompanying wars - became the 19^th century norm.

In parts of Canada, principally British Columbia, the treaty process was never completed and settlers simply took the land. And where treaties were made, they sometimes were grounded in deception and misunderstanding, as was the case with Treaty of Waitangi, giving rise to disputes and renewed claims.

Just as the legal approaches to settlements varied from place to place and time to time, so did the social attitudes as to what was to become of Aboriginal peoples. Many argued that the only answer was integration. Thus the first Prime Minister of Canada declared that the Indian problem would be solved only when there were no more Indians. Simultaneously, however, other forces were enforcing an exclusionary, separate model. The treaty process resulted in Indians being confined and isolated on their reservations. This isolation from the mainstream was reinforced by stereotypical racist prejudices. The result in my country was to produce the worst of all possible worlds - a world where First Nations peoples were excluded and at the same time systematically deprived of respect and self-worth.

The resultant multi-generational demoralization and despair have given rise to a modern revival of the theory of aboriginal entitlement. The doctrine of assimilation with its implicit denial of aboriginal culture and self-worth has been abandoned. In its place stands the realization that we can move forward as a nation only by encouraging the recognition and self-development of the distinct Aboriginal cultures that comprise Canada's First Nations. We must build a secure foundation of identity and entitlement upon which our Aboriginal peoples can reclaim their past and build their future. The concrete legal testimonial to this new covenant was the enactment in 1982, as part of Canada's Constitution, of s 35 of the Constitution Act, which states, 'The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed'. Henceforth, Aboriginal entitlements would be protected by the Constitution, and no longer extinguishable by legislation or executive policy.

The way forward in Canada is thus not in conquest and assimilation, but in recognition and reconciliation. In New Zealand, the common law has pointed in the same direction. In 1987, the New Zealand Court of Appeal held that the Treaty of Waitangi symbolizes the special relationship between the Maori people and the Crown. For decades now, the peoples of New Zealand have been pursuing reconciliation through the tribunal process. In Canada, as here, the process in neither rapid nor easy. But we, like you, are convinced that it must be pursued, since at the end of the day, reconciliation is the only answer to our post-colonial dilemmas.

THE GLOBAL INFLUENCE

Our nations are not alone in this pursuit of reconciliation. In the last three decades, Aboriginal peoples worldwide have asserted their rights — and governments have begun to listen. I have referred to the experience of Canada, the United States, New Zealand and Australia. But the problem of how to reconcile Aboriginal interests with the interests of colonial settlers and their descendants, and with the lasting imprint of colonial culture and institutions, is playing itself out in the lives of many peoples in many states — the Sami in Norway, the Koryak in Russia, the Yanomami in Brazil and the Inuit in Greenland, to name but a few.

Reconciliation of aboriginal entitlements is truly a global issue. As such, it finds recognition in international legal instruments.[1] The International Labor Organization's Convention on Indigenous and Tribal Peoples in Independent Countries (Convention 169)[2] recognizes 'the aspirations of indigenous peoples to exercise control over their own institutions, ways of life and economic development and to maintain and to develop their identities, languages and religions, within the framework of these states in which they live',[3] and obliges states to protect Aboriginal rights to land, religion, customs and political participation. The Draft Declaration on the Rights ofIndigenous Peoples contemplates empowering indigenous groups to define their status and determine the appropriate means of protecting ancestral rights, and calls upon state governments to transfer the authority to determine the content of indigenous rights from the state to indigenous populations.[4]

Canada is not a party to Convention 169, and the Draft Declaration has not yet been adopted by the United Nations. Nevertheless, these documents can be seen as reflecting expectations that in due course may inform our own debate on Aboriginal rights.[5] The recognition of Aboriginal rights is still first and foremost a national issue, but it is increasingly an issue being played out on the international stage.

This then is the general, global picture. Nations like Canada and New Zealand, in synch with the international trend, have moved from the conquest and assimilation model to a model of recognition, entitlement and reconciliation. Yet many problems remain. Let me, against this background, move to some of the particular challenges my country faces. If the 18^th and 19^th centuries were marked by the quests of colonization, the 20^th and 21^st centuries have been marked — or more accurately marred — by the aftermath of colonization.

The shattering effect of colonization on indigenous societies is witnessed by the fact that it is one of the dominant themes of modern literature. Chinua Achebe writes eloquently of the impact of British colonization on the Ibo people of Nigeria in a novel whose title evokes the theme, Things Fall Apart. Salman Rushdie pursues the fragmentation of post-colonial India and Pakistan in Midnight's Children. In Canada, Aboriginal writers have explored the dislocations produced by Europeanization. In Green Grass, Running Water, for example, Thomas King discusses the situation of modern Blackfoot, caught between two cultures, unsure of their place in either culture and the place of either culture in them. And in Australia and New Zealand, indigenous peoples express their dilemmas through art, song and anew political awareness. After centuries of conflicting assimilationist and segregationist policies, we have come to realize that neither approach can heal the fragmentation imposed upon Aboriginal peoples.

A snapshot of the current situation of Aboriginal peoples in Canada reveals the price the colonial experience continues to exact. But first, who are these peoples? Canada contains three recognized groups of Aboriginal peoples: the First Nations, the Inuit, and the Métis. In the 2001 census, just over 1.3 million people in Canada reported having some Aboriginal ancestry,[6] or 3.3% of the population. Canada's Aboriginal population thus ranks behind New Zealand, whose Maori population comprises 14% of the total population, but ahead of Australia, with 2.2%, and the United States, with 1.5%.[7] Almost one-half of Canada's Aboriginal peoples live in urban areas, while just under one-third live on Indian reserves and settlements.[8] Canada's Aboriginal peoples are divided amongst hundreds of different tribes or nations, possessing their own histories, traditions and often their own languages.

Much room remains for improvement in the socio-economic position of Aboriginal peoples in Canada, both rural and urban. In 2000, the gap in life expectancy between registered Indians and the average for all Canadians was 7.4 years for men and 5.2 years for women, although there are indications that this gap is narrowing.[9] Aboriginal literacy rates are lower than those for the rest of the population.[10] Status of Women Canada reports that

Aboriginal women have less formal education than other Canadian women, a shorter life expectancy, are less likely to be employed and are more likely to live below the income cut-off level. Aboriginal women also face higher than average rates of spousal violence.[11]

Alcoholism and drug addiction exact a terrible toll on Aboriginal life; and fetal alcohol syndrome poses a huge problem for this and future generations.[12]

Correctional Services Canada reported in 2001 that Aboriginal people are incarcerated at more than 6 times the national rate.[13] Unlike the apparent improvement in life expectancy, the prediction is that this figure will rise due to the relative youth of the current Aboriginal population.[14] Aboriginal offenders, once incarcerated, often fare worse than their non-Aboriginal counterparts. The Ministry of the Canadian Solicitor General has reported that:

Aboriginal inmates waive their rights to a parole hearing more frequently than do other inmates. Parole is also denied at a higher rate than for non-Aboriginal offenders, and when parole is granted, it is usually later in the inmate's sentence. In addition, the revocation rate for Aboriginal offenders on conditional release is higher than for the general offender population.[15]

The positive point is that the Canadian government acknowledges and is concerned by these statistics. The negative reality is that the disadvantaged position of Aboriginal peoples vis à vis other Canadians persists.[16] Canada's Aboriginal peoples are not alone in facing problems such as these. According to a government website, in New Zealand, of all convicted cases in 2001 for which the ethnicity of the offender was known, 42% involved Maori.[17] And in Australia, where I recently visited, I read with dismay of a high rate of unexplained killings of Aboriginals in prison. Aboriginal peoples everywhere in the world continue to suffer from the effects of post-colonial loss of identity, including the difficult legacy of having being uprooted from their lands and lifestyles, and the attendant educational and socioeconomic disadvantages they continue to face.

Yet all is not bleak. We now accept that neither assimilation nor segregation works. The way ahead lies in ending fragmentation by validating Aboriginal roots while recognizing that Aboriginal peoples are also shaped by and must live their lives in modern, multicultural societies. In short, it lies in reclaiming culture and rights and reconciliation of those within society as a whole. Aboriginal peoples everywhere are reclaiming their pasts and their culture and in the process, claiming a place for themselves in the institutions and structures of 21^st century societies. They are doing this in many ways. They are strengthening their communities and ties between communities -ties that extend beyond national boundaries to the international sphere. They are entering the professions and the ranks of business in ever-increasing numbers. They are finding new voices through political mechanisms. For example, Aboriginal groups in Canada have pressed for statements of reconciliation such as that offered by the Government of Canada in 1998, and have won new measures of governmental autonomy, like the creation in Canada in 1999 of the Inuit Territory of Nunavut with its own Legislative Assembly. And Aboriginal peoples everywhere have continued and expanded their traditions of expressing their values, dilemmas and aspirations through art. They are making their mark not only in their own countries but beyond, in painting, sculpture, song, dance and film. But Aboriginal communities are not only reclaiming their cultural roots -they are reclaiming their rights. They are pursuing past claims and present reconciliation through the law. The main burden of rights reconciliation falls in the political realm. Yet the legal profession and the courts have a critical role to play. This legal activity takes place on three fronts — the constitutional front; the front of defining detailed legal entitlements; and the front of claims negotiation.

Let me turn first to the Constitutional front. In Canada, Aboriginal legal claims find ultimate recognition s 35 of the Constitution. The Supreme Court has recognized s 35 's purpose as dual: first, to recognize and give legal force to the fact of prior occupation, and second, to create a legal framework in which the historically distinctive elements of Aboriginal culture can survive and flourish.[18] The Court has sought to achieve a balance between establishing a sufficient historical foundation for Aboriginal rights and ensuring that this historical requirement does not preclude the dynamic evolution of Aboriginal cultures.

Following upon and often intermingled with constitutional adjudication on aboriginal issues, is the determination of specific entitlements, rights and responsibilities. Courts have been presented with a variety of issues revolving around the meaning of treaties and the interpretation of diverse constitutional and legislative provisions that impact on Aboriginal peoples. How should particular clauses in treaties, some dating to the 1600s, be interpreted in the modern age? Who is entitled to claim treaty benefits as a Band member? Are Métis entitled to hunting rights on Crown lands constitutionally accorded to 'Indians'? The list goes on and on. The questions are difficult and politically sensitive. Yet the courts cannot shirk their duty. They must continue to discharge the essential task defining legal entitlements and balancing those entitlements against other societal goals and interests, as required by law and the Constitution.

Some decry this litigiousness as an indicator of a breakdown in political negotiation processes. Yet often before negotiation can succeed, legal parameters must be clarified. There is a correlation between the intractability of disputes and the likelihood that they will end up before judges. The Court's decisions have the immediate effect of defining the legitimacy of a particular claim or practice at common law or by Treaty. They carry precedential weight and influence the resolution of other disputes. Finally, they carry symbolic value as morally authoritative statements of the principles that ought to guide the mutual interactions of Aboriginals and non-Aboriginals. In adjudicating disputes, including disputes about Aboriginal claims, the Court gives content to the commitment to live together and respect each other as individuals, as members of historically distinctive groups, and as Canadians — in short, to the rhetoric of reconciliation.

The final legal front is treaty negotiation. As settlements progressed in Canada in accordance with the Royal Proclamation, treaties were made with our First Nations peoples — except in the province of British Columbia. There, in an implicit denial of the need to reconcile, lands were simply taken and reserves arbitrarily allocated. Now, belatedly, a process that should have concluded long ago has been re-activated. The process is political. But the courts have played an essential role. In Van derPeetthey laid down the principles that govern entitlement to Aboriginal practices. In Delgamuuk, they laid down the principles that govern establishing Aboriginal title, extinction of Aboriginal title and reconciliation of Aboriginal title with other societal interests.

In the course of resolving these issues, the courts have discovered that Aboriginal issues present unique evidentiary and procedural challenges. From a procedural point of view, courts have been forced to cope with the reality that trials may last a very long time, indeed years. Extensive expert evidence may need to be called. Elders - often many elders - may need to be heard from to establish as complete a picture as possible of past practices and understandings. It may be necessary for courts or tribunals to go to the Aboriginal peoples, rather than expecting the Aboriginal peoples to travel great distances and take up residence in urban centers while the hearing proceeds. And once the hearing is over, judges must come to grips with a bewildering quantity of evidence and complex, often abstract, legal principles and values.

Aboriginal claims litigation also presents challenges on the evidentiary plane, particularly where treaties are not available as a guide to Aboriginal entitlements. Aboriginal cultures transmit their history orally. Yet attempts by elders to relate this oral history to the court may be met by the objection that the evidence is hearsay. Since this is often the best, sometimes the only evidence on disputed matters, its exclusion may be fatal to an Aboriginal claim. Canadian courts have ruled that oral history evidence is admissible, provided it is necessary and reasonably reliable.[19] The efforts of courts in Canada, New Zealand and Australia to deal with Aboriginal claims in a just, fair and practical manner cannot claim perfection. Yet it stands as a testament to the vibrancy and relevance of these countries' respective justice systems. Legal processes and procedures have faced formidable challenges, and legal actors have responded with imagination and common sense. As a result, legal processes, while not the only or even the most important way of healing the post-colonial rifts between Aboriginal and non-Aboriginal peoples, play an important role. I have been speaking about how the law has been used to resolve entitlement disputes between Aboriginal and non-Aboriginal peoples, and sometimes different Aboriginal groups. But the law is not concerned only with issues of Aboriginal entitlements arising from history. The law is also concerned with the contemporary problems of Aboriginal peoples, as they struggle with the fragmentation and dislocation of their bi-cultural identities. The situation of Aboriginal offenders has impacted on the criminal law. The fact that the accused is Aboriginal may be taken into account in questioning potential jurors to the end of eliminating prejudice.[20] Again, the Canadian Criminal Code, s 718.2(e), provides that Aboriginal background must be considered in certain sentencing contexts, stating

All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

Sentencing practices in Canada now include sentencing circles in which the community participates, and where the emphasis is not merely on punishment, but on re-storing harmony between the Aboriginal offender and the community.[21]

Finally, as in New Zealand, law and policy promote Aboriginal involvement in the placement of abused and abandoned Aboriginal children.[22] In these and many other ways, Canadian law, like law in Australia and New Zealand, is attempting to better meet the current challenges faced by Aboriginal communities.

CONCLUSION

The task of reconciling Aboriginal interests with the interests of the descendants of colonial settlers is a complex and difficult one. Yet, as the universal experience of virtually every country faced with that task attests, sooner or later it must be faced, if countries wish to ensure a stable and prosperous future.

In Canada, as elsewhere, Aboriginal and their non-Aboriginal co-citizens are tackling these issues. Governments are addressing them, and courts, when called on, continue to discharge their task of resolving disputes where conflicts arise and of determining entitlements under treaties and at common law. The goal is simply stated: respectful accommodation and reconciliation of interests in the context of our unique history and the legal framework that it has produced.[23] Martha Minow describes the legal process through the metaphor of accommodation. Viewed thus, the law secures for us a space in which we all can carry out the conversations that will help us to work out the accommodations to permit us to live together in peace for the future — in short reconciliation. The reconciliation we pursue is not easy, but it is essential. I for one, take comfort in the knowledge that our country is not alone in facing it.

As former Chief Justice Lamer stated at the conclusion of his reasons in Delgamuukw: 'Let us face it, we are all here to stay.'[24] He was speaking of Canada, but the same holds true for the world.

[*] Chief Justice of Canada.

Public address at the University of Canterbury, Monday, 28 April 2003

[1] See, eg, International Labour Organization Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989 (entered into force Sept. 5, 1990); Draft Declaration on the Rights of Indigenous Peoples, UN Doc E/CN.4/Sub.2/ 1994/Add.1 (1993); The United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, GA Res 47/135 (adopted Dec. 18, 1992). See generally Cynthia Price Cohen, (ed) The Human Rights of Indigenous Peoples (1998), Part I and Appendices.

[2] ILO Convention (No. 169), above n 1.

[3] ILO Convention (No. 169), above n 1, fifth preambular clause.

[4] Draft Declaration, above n 1, Parts I, VI and VII.

[5] See Kelley C Yukich, 'Aboriginal Rights in the Constitution and International Law' (1996) University of British Columbia Law Review 235, 251-6.

[6] Statistics Canada, 2001 Census: Analysis Series. Aboriginal Peoples of Canada: A Demographic Profile 5.

[7] Ibid.

[8] Ibid 10.

[9] Indian and Northern Affairs Canada, Basic Departmental Data 2001, 23.

[10] Movement for Canadian Literacy, Factsheet: Literacy and Aboriginal Success, http://www.literacy.ca/litand/13.htm.

[11] Status of Women Canada, FAQ: Aboriginal Women, http://www.swc-cfc.gc.ca/faq/faq_e.html.

[12] Studies suggest that alcohol-related birth defects may be more prevalent in some Aboriginal communities than in the Canadian population as a whole. See Health Canada, Alcohol and Pregnancy Factsheet, at http://www.hc-sc.gc.ca/pphb-dgspsp/rhs-ssg/factshts/alcprg_e.html.

[13] Correctional Services Canada, Backgrounders: Aboriginal Offenders, http://www.csc-scc.gc.ca/text/pubed/feuilles/off-ab_e.shtml.

[14] Ibid.

[15] Ibid, citing a study by the Ministry of the Solicitor General entitled Aboriginal Peoples in Federal Corrections.

[16] See generally Canadian Criminal Justice Association, Aboriginal Peoples and the Criminal Justice System (May 15, 2000), http://home.istar.ca/~ccja/angl/aborit.html.

[17] New Zealand Ministry of Justice, Conviction and Sentencing of Offenders in New Zealand, 1992 to 2001: Executive Summary, http://www.justice.govt.nz/pubs/reports/2003/conviction-sentencing-2002/ex-summary.html.

[18] See, for example, R v Van der Peet [1996] 2 SCR 507, paras 42-4 (Lamer CJ).

[19] Delgamuukw v British Columbia, [1997] 3 SCR 1010, paras 85-7; Mitchell v Canada, [2001] 1 SCR 911, paras 27-39. In Australia, the Native Title Act 1993, as amended in 1998, provides in s 82(1) that the Federal Court 'is bound by the rules of evidence, except to the extent that the Court otherwise orders'. See Graeme Neate, 'Management of native title cases by the Federal Court - does this affect the anthropologist's role?' (Paper presented at the Native Title Conference, Adelaide University, SA, July 6, 2001) 46. The elements required to prove aboriginal title in Canada, as specified in Delgamuukw, are: the group making the claim must establish physical and exclusive occupation of the land at the time the Crown asserted sovereignty over that land; and continuity between pre-sovereignty and present occupation, if present occupation is relied on as proof of pre-sovereignty occupation. Aboriginal groups may still make out claims to Aboriginal rights, even if they cannot adduce sufficient evidence to establish exclusive pre-sovereignty occupation. The test for establishing Aboriginal rights is set out in R v Van der Peet [1996] 2 SCR 507, above n 18.

[20] R v Williams, [1998] 1 SCR 1128.

[21] For more on sentencing circles, see The Native Law Centre of Canada's resource list at http://www.usask.ca/nativelaw/publications/jah/scircle.html.

[22] See, for example, the Province of British Columbia's legal and policy initiatives, described by the BC Ministry of Children and Family Development, http://www.mcf.gov.bc.ca/media_site/foster_abori ginal.htm.

[23] See, for example, Delgamuukw, above n 19, para 81.

[24] Delgamuukw, above n 19, para 186.