High among the purposes of entrenching Aboriginal and treaty rights in section 35 of the Constitution Act, 1982 is to promote reconciliation. Recently, the Chief Justice of the Supreme Court of Canada has emphasized the importance of reconciliation between Canada and Aboriginal people. Yet, in section 35 jurisprudence what the Court has been reconciling is the pre-existence of Aboriginal people occupying the land with Crown sovereignty. This is less than reconciling a broader relationship. It is a fundamentally flawed premise, which ultimately results in the reproduction of a colonial order and hierarchical relationship between peoples. How the n, do we achieve reconciliation between Canada and Aboriginal people? We need a conception of reconciliation founded on recognition of the “equality of all peoples”, which in turn necessitates recognition of the illegitimacy of the Crown’s claims to having acquired ownership of and sovereignty over lands occupied by Aboriginal peoples through unilateral Crown assertion. Drawing on the One Dish agreement of the Anishinabe and Haudenosaunee as an example of how culturally different relationships can be successfully reconciled, the author argues for reconceptualization of reconciliation built on principles of equality, sharing, honour, trust, consultation, restraint and maintenance.
Hewitt, Jeffery G..
"Reconsidering Reconciliation: The Long Game."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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