Two Visions of Reconciliation in Canada

Abstract

Reconciliation has become a popular and contentious term in Canadian politics, media, jurisprudence, and legal education. In this paper, I explore what is at stake in our approach to reconciliation by contrasting two prevailing forms. The first is a form pursued in Canadian jurisprudence which I refer to as “reconciliation to Crown sovereignty.” The second is a form advocated by numerous scholars and Indigenous leaders which I call “reconciliation as treaty.” Reconciliation to Crown sovereignty is a process whereby Indigenous polities’ interests in political autonomy and control of land are systematically undermined or rendered legally inert, thereby reconciling these interests with the sovereignty of the Crown. Reconciliation as treaty, by contrast, entails building and renewing treaty relationships through Crown engagement with Indigenous peoples robustly constrained by a principle of non-domination. I argue that these two forms of reconciliation are mutually exclusive and that reconciliation as treaty should be preferred because it respects and protects Indigenous peoples’ law and ontologies. I use the recent Federal Court of Appeal decision in Coldwater et al v Canada (Attorney General) as a case study to explore these two approaches to reconciliation.