Reconciling Difference: Manuel & Best (2019)

Intro: reconciling difference

The theme of this essay, comparing Arthur Manuel and Peter Best, will be reconciling difference regarding Indigenous and non-Indigenous relations within Canada.

I develop 3 models of reconciliation based upon 1) elimination, 2) exclusion, and 3) intersection. The goal is to identify which model, or which combination of models, best fits the history and legal principles of Indigenous and non-Indigenous relations in Canada, and thus, which would provide the most solid ground for moving forward.

To begin I will simply consider some basic logical possibilities for reconciling differences assuming entities A and B within a domain C. Imagine a Venn diagram where C represents the territory within which A and B reside and in which A and B make conflicting claims regarding their relationships to C and to each other.

One option is to simply eliminate A or B and the conflict between A and B regarding C is equally eliminated. Let’s call it the elimination model (eliminating the Other.) Another option is to divide C into non-overlapping, mutually exclusive proportions between A and B (or multiple instances of A and B.) Let’s call it the exclusion model. Another option is to divide C amongst A and B in overlapping, mutually intersecting strata which creates a complex web of interrelationships between A and B (or multiple instances of A and B.) Let’s call it the intersection model.

In addition to such a simple spatial organization represented by a Venn diagram normally of logical sets, we should also consider the relationships in terms of whether A and B relate to each other as equals or whether there is a superiority-inferiority dynamic of domination in play. This dynamic of relative power is perhaps best captured by a Venn diagram through the visualization of relative sizes of A and B and perhaps where A or B is a sub-set of the other suggesting a relationship of subordination. Obviously a Venn diagram fails to do proper justice to representing such relationships, nevertheless, models of elimination, exclusion and intersection allow us a simplified basis with which, in a short essay, to assess the complex historical and future relationships between Indigenous and non-Indigenous peoples in Canada.

We have examples of all three models throughout Canadian history. The question is, does one of these models, or some combination of them, afford a better solution for reconciling the differences we are considering going forward?

To simplify for the moment, Best’s solution appears to be essentially the first option above. Indians, for Best, need to be recognized as assimilated and conquered and thus, for all legal purposes, eliminated as a separate and distinct category of peoples within the territory of the exclusive Canadian Crown. This solution is clearly unacceptable for Manuel. It would represent a form of reconciliation without agreement. Best’s notion of reconciliation exemplifies precisely the presumption of legitimate domination which Manuel argues is used to justify the legal elimination of Indians (Best’s language) within Canada.

Best seems unwilling to acknowledge that his account of the conquest and assimilation model he favours is not, in fact, the historical or constitutional model Canada was built upon. Whether we consider the Royal Proclamation 1763, the Quebec Act 1774 the BNA Act 1867, or S35 1982, all were intended to accommodate the political and social realities of Indians and French Canadians in Quebec and the rest of Canada, as well as the local prejudices of the pre-confederation colonies, in one form or another. This history of accommodating local considerations, and French-Canadians in particular, is precisely what leads to the so-called compact theory of Confederation. The decision to create a federated system of provinces, with non-overlapping provincial jurisdictions, is not an argument based upon the elimination model. Rather this history might be characterized as some combination of the mutual exclusion model applied to provincial jurisdictions combined with federal intersections with those jurisdictional spaces.

This federated model was not John A. Macdonald’s preferred solution. Macdonald wanted a unitary state. Like Best, he sought to eliminate the Other where possible. But the facts on the ground in Canada East, and later, in the home of ‘savages and French half-breeds’ (to use Macdonald’s language) in the Northwest, where they would press for the creation of Manitoba, demanded otherwise. The provinces and territories would deal with issues of a local or regional nature and the federal level would deal with issues which were perceived to belong properly to the whole. This would lead, regarding Indians, to the curious model of reserve islands of federal jurisdiction (S91.24) within provincial boundaries in recognition of the accommodated difference codified as « Indians and lands reserved for Indians » in the BNA Act, 1867. These reserve islands imply a potential ambiguity as to their ultimate status as Indian or federal jurisdiction within the Canadian constitution. The effects of this ambiguity will be substantially heightened with S35 1982. At the time of Confederation such ambiguities, just like the Indians, were largely ignored by the so-called fathers of the deal. A deal to which Indians were not invited to participate.

Best is going to essentially select those events of Canadian history which appear to represent and justify the elimination model of Canadian history, politics and law. As noted, this is not a model Manuel and Indigenous Peoples are prepared to accept. And as Best laments, it is not the solution preferred by the courts, contemporary political elites or what he calls the « Indian industry ». Although he presumes to speak for the majority of Canadians when calling for the elimination model, Best offers no real evidence of this majority, but simply claims that his beliefs arise from what he perceives to be the norms of Canadian society.

Both Best and Manuel call for the elimination of the Indian Act and the reserve system. However, Manuel’s solution is some combination of the exclusion and intersection models that supports Indigenous Peoples’ need for a land base and powers of self-determination. However, these lands and powers will likely, insofar as they are not fully delineated legally at this time, involve some form of confederacy where mutually exclusive jurisdictions (like provinces and territories) are intermixed with mutually interdependent jurisdictions (agencies of shared jurisdiction.)

The strategy of this paper will be to walk through some of the major case law regarding Indigenous Peoples in Canada with the 3 models of reconciling difference in mind, assessing what history and law suggests as the way forward. And in particular, I will use the Manuel and Best readings of that history and law as guideposts for interpreting the possible paths for reconciling the differences uncovered.

Regarding the idea of reconciliation, however, it would appear that Best and Manuel’s views, as stated, are simply irreconcilable. Best’s total elimination model under an exclusive Crown sovereignty would appear to find no point of reconciliation with Manuel’s model recognizing Indigenous lands and self-determination. In which case, we are obliged to consider variations on their views in order to fashion a path forward toward a reconciliation of such differences. One could appreciate that calling ‘eliminating the Other’ or ‘killing the Indian in the child’ reconciliation might represent a distorted notion of reconciliation.

A standard Google search for a definition of « reconciliation » returns 1) restoring friendly relations, 2) making beliefs compatible.[1] It is hard to see how eliminating the Other could qualify as restoring friendly relations if the Other does not sign on to their own elimination. This leaves ‘making beliefs compatible’ which suggests perhaps a more abstract logical analysis for which negotiating friendly relations need not be a part. We will consider both.

To be clear, I am inclined to agree with Manuel over Best. In doing so, I am in effect agreeing, according to Best himself, with the courts, the political elites, the Indian industry, and presumably some Canadians. That leaves Peter Best’s ‘majority of Canadians’ to consider. Can a path of reconciliation be foreseen which the majority of Canadians would be willing to follow short of the course of total elimination Best has marked out for us all?

Total legal elimination has been tried with the 1969 White Paper. It failed. So much so, that it’s opposite was enshrined in the constitution 1982 as S35. Best wants S35 repealed to meet the requirements of the complete elimination model. Is this in fact the natural conclusion to which Canadian history and law leads us!

The focus of this paper will be some of the important legal cases in the history of Indigenous and non-Indigenous relations in order to determine if there is a path forward based upon that shared history, with all its conflicts and contradictions, as well as, its agreements and partnerships. Just as Confederation produced a federated structure of municipalities, provinces and territories, with an overarching federal regime, is it possible to consider a regime of Indigenous municipalities or local communities within larger regional wholes equivalent to provinces and territories, and a federal level of confederacy where nation-to-nation political entities negotiate the confederated legal jurisdiction we might all live within? We will not be considering the details of any such future arrangement. Rather we will simply be assessing whether such a model, drawn from reflections on Canadian history and law, offers a possible path to reconciliation in the future where reconciliation suggests restoring friendly relations and making our beliefs compatible.

The Agreement: The Problem

I will begin with what Arthur Manuel and Peter Best appear to hold most firmly in common. They appear to agree on what the underlying problem is: racism. Curiously, however, their respective solution to that problem is seen by the other to be an essential instance of that problem.

For example, Peter Best sees the problem as the legalization and institutionalization of racial difference regarding what Arthur Manuel would see as his preferred solution of institutionalizing Indigenous self-determination. Best sees this institutionalization of Indigenous self-determination as a racist violation of the humanistic principle of equality of individuals under the law and a weakening of the exclusive Crown sovereignty which he argues protects that legal principle of individual equality.

By contrast, Manuel sees exclusive Crown sovereignty as resting upon racist, colonial beliefs and policies directed at subjugating Indigenous Peoples and taking illegitimate control of Indigenous territories. Thus, the policies and institutions which Best favours, individual equality under the exclusive Crown, are grounded in racist presumptions, according to Manuel.

How do we make sense of this apparent divergence in understanding the legal and constitutional foundations of Canada? Is one correct while the other is incorrect? Are they both possibly correct or incorrect in their understanding and solution of the underlying problems based upon different interpretations of underlying factors? Putting aside the assessment of truth or correctness of their views, can we ascertain a third perspective in which their respective views can, in some meaningful way, be reconciled?

Essentially, Best construes reconciliation as assimilation of collective differences in the form of equality of all individuals under the law of the exclusive Crown of his British forefathers. By contrast, Manuel construes reconciliation as a recognition of difference that legally and politically acknowledges some form of Indigenous self-determination and jurisdiction. Reconciliation would appear to be difficult to say the least, if Best and Manuel are diametrically opposed with regard to what would count as reconciliation.

Racism: What is it?

Despite historical efforts to develop a biological, genetic basis for distinct races, I will work with (rather than detail any research on this issue) the understanding that the biological basis for a scientific concept of race is weak if simply not viable. Instead, I will consider the notion that race, and thus racism, are social constructs based upon perceived differences (physical appearance, language, culture, etc.) for which there is some kind of social recognition or expression. This social recognition may vary from the informal recognition of such differences (ex. explicit branding of culture-based clothing or food preparation) to the formal institutionalization of such differences (ex., separate schools, language laws or ethnic-based forms of political jurisdiction).

Regarding racism, I will simply take Wikipedia’s working definition as a starting point:

Racism is the belief in the superiority of one race over another, which often results in discrimination and prejudice towards people based on their race or ethnicity. [2]

This definition captures Manuel’s use of the concept insofar as he sees racism as underlying the colonial project to subjugate Indigenous Peoples and control Indigenous territories based upon the presumed superiority of colonial society. However, by contrast, it does not capture Best’s use of the term insofar as Best is not claiming that there is a presumption of racial superiority in the institutionalization of Indigenous self-determination although he does refer to the potential for an emergent race-based aristocracy. Rather he argues primarily against institutionalizing collective (racial) differences of any kind with or without the notion of superiority. In other words, Best’s arguments turn on the notion of equality versus difference, not the presumed superiority operating within that difference. Although as we will see, Best does argue for the superiority of European societies over Indigenous societies which does appear to play a role in his assessment of the rationale for the justified legal and political elimination of Indigenous difference. Overall his project of individual equality is presumed to eliminate collective differences under the law. Thus, I see Best as pursuing what I called the elimination model regarding the legal recognition of collective differences, and Indigenous rights and title are essentially about collective difference.

So at the heart of the dispute between Manuel and Best there appears to be a difference of interpretation regarding the validity of collective differences (social, cultural, legal and political.) Best argues for the elimination of collective difference of treatment under the law under an exclusive (British-Canadian) Crown sovereignty. Whereas, Manuel sees that elimination of collective difference and the notion of equality of individuals under the exclusive Crown as an institutionalization of assimilation. In other words, Best’s solution of equality under the exclusive Crown is not the collectively-neutral solution Best claims it is, following Manuel. Given Best’s persistent reference to his British forefathers and ancestors as the architects of his preferred solution, his solution is not perhaps as tribally neutral as he suggests. For example, given Best’s dismissal of the value of any kind of separate school system, presumably Best believes we should all express our equality by everyone speaking English as the only official language of the country. Of course, this might represent an instance of formal equality, but one could understand why les canadiens or Indigenous Peoples might see this as assimilation and domination, and not as equality. Is individual equality going to turn out to be for Best, all things British, much as it was for John A. Macdonald?

Best: No Difference

For Best, all significant differences of Indian culture have been lost. In effect, he sees this as a good thing, consistent with the process of civilizing modernity. He characterizes this as simply part of a morally neutral, objective historical process of assimilation. If so, the manner in which his account is animated by a relentless tone of moral outrage seems curiously misplaced. If this process of assimilation is as objective a historical norm as he suggests, what could the courts, political elites and the Indian industry possibly do about it. He clearly seems concerned about what these elites are doing and the effects their doings will have and have had. So if the Indian race (to use Best’s language) simply no longer exists, what are we to make of the jurisdictional space that is being created for them and which sparks so much moral outrage from Mr. Best? Are these entirely empty jurisdictional spaces? If so, what’s the real harm other than providing literary opportunities for folks like Mr. Best to argue against such chimera? And if not, who is in fact inhabiting them? Does Best have criteria for identifying true versus fake Indians, which presumably would be necessary for arguing that all the beneficiaries of these jurisdictional spaces are in fact fake Indians?

Of course, Best’s ancestors busied themselves with just such distinctions for identifying true Indians, which is why we have the Indian Act and the reserve system today. Best seems to believe that by eliminating Indians and reserves he can finally rid himself, John A. Macdonald, and their shared ancestors and descendants, of ‘the Indian problem’.

Best also sees his preferred solution as breaking with the racist nationalism associated with the violence and wars of the 20th century. So he argues for the humanist principle of the equality of individuals under the law versus any notion of distinct collective rights before the law. He marshals the history of Nazi Germany and apartheid South Africa to suggest that legally recognizing Indigenous peoples, lands and rights is somehow to re-create such racist states. Drawing a direct parallel between recognizing Indigenous rights of collective self-determination and the death camps of Nazi Germany or the apartheid oppression of South Africa seems a somewhat surreal interpretation of history. The tortured logic Mr. Best deploys is somehow supposed to have us believe that allowing Indigenous Peoples to have a jurisdictional land base to practice economic, political and cultural self-determination is equivalent to apartheid South Africa’s oppression of black South Africans or Nazi Germany’s brutal violations of its political and cultural enemies. Mr. Best appears to be drawing comparisons with colonial British Rhodesian or Afrikaner minorities’ racist domination of an Indigenous ethnic majority, when the Canadian situation represents the presumed protection of Indigenous minorities from a colonial majority. Besides no one is calling for relations of domination. Quite the contrary, Manuel, for example, says he is only calling for a fair share of the wealth and power in Canada rather than the 0.2 per cent of Canada that reserves currently represent.[3].

Frankly speaking, I can only assume that such comparisons are to be explained by Mr. Best’s intensely emotional prejudices driving his evident heated rhetoric and not by the clarity of his attempts at reasoning. By arranging his positive and negative emotional attachments according to his preferences, Mr. Best seems to believe he is arranging history into a coherent moral order. It remains unclear why Mr. Best’s emotional and moral preferences should be that of anyone else, and he certainly never demonstrates the claim that they are the emotional and moral preferences of the majority of Canadians.

Best characterizes the institutionalization of such principles, as the equality of individuals before the law of an exclusive Crown sovereignty, as the work of his British-Canadian forefathers who were enlightened conquerors with a conscience, as he says, even as he acknowledges that they invented the « benignly racist » institutions of the Indian Act and the reserve system. [4] The problem with this account is that it flies in the face of the evident history of Canada which, as noted, is built from top to bottom, from beginning to end of the European colonial period, on recognizing the collective rights of les canadiens. So we need to consider such a history of accommodation as we consider the possibilities for reconciliation with Indigenous Peoples, a reconciliation which both restores friendly relations as well as the compatibility of beliefs.

Best casts himself as the voice of the vast majority of ordinary Canadians betrayed by their elites and the Indian industry who are institutionalizing the separate, race-based legal institutions for Indians. He also says that "culture is born out of exchanges and thrives on differences »,[5] a curious notion given his attempt to eliminate collective differences before the law and in government policies. Why can this notion of thriving differences and exchange not operate at the level of legal and political collective differences within Canada?

Best references Richard Gwynn’s account of the Confederation founders as seeking a “new nationality” that was political rather than ethnic, when in fact the entire federal structure was fashioned to accommodate the concerns of local minorities, especially Quebecers. The upshot of all this is that Best seems keenly aware of his British ancestors as the architects of the current dilemmas with which he is wrestling and, in fact, refers to his own motives as one of feeling "compelled to defend my ancestors ».[6] So it would appear Best recognizes and is secure in his own collective tribal identity and its political expression in the federal structure. Why is he so remiss to acknowledge the collective identity of others in that same federal structure?

The question becomes what is the relationship between the collective identity he himself owns and the rule of law and the exclusive Crown sovereignty which he embraces? Are they an expression of that particular collective tribal identity or an expression of something more universal, as Best seems to presume? He seems to believe that his tribal identity has universal value but the tribal identity of others does not. Is that in fact an expression of a ‘racist’ mentality? British language, British law, British institutions, British history, is that what we are all supposed to swear our allegiance to as an expression of our equality in Canadian society? Frankly, it sounds a lot like the education I received in the Ontario public school system or, should I say, the British public school system in Ontario.

The Rule of Law and Exclusive Crown Sovereignty

Curiously, Best does not have a lot to say about Quebec and French-Canadians as he takes issue with the apartness being instituted by elites and the Indian industry, except, regarding separate schools. « In Ontario…separate Catholic schools are an unaffordable, illiberal anachronism that should be abolished…» Needless to say, he holds similar views regarding « a new form of separate school system for Indigenous Ontarians ». [7] While such views on French Catholic or Indigenous separate schools may indicate consistency, such views are not an accurate reflection of the norms of Canadian history. So why did Best’s British ancestors accommodate les canadiens in the way they did?

Best describes the Royal Proclamation as evidence of a benevolent attitude towards Indians on the part of his British forefathers. [8] And furthermore, he argues, it demonstrates in no uncertain terms the “complete attainment and consolidation of British sovereignty over British North America”. [9] Of course, their American cousins would successfully dispute that sovereignty after the Quebec Act of 1774, a provocation which those cousins saw as the last of the intolerable acts, recognizing as it did boundaries which they could not abide. Of course, the Quebec Act also recognized the language, religion and political rights of the French majority in Quebec, a matter which Best largely overlooks. None of this was simply the product of the benevolence of Best’s British forefathers, rather it was a result of their realpolitik assessment of how to deal with large populations they sought to administer as their claimed political responsibilities, with economic opportunities and with their limited administrative capacities. Best’s British forefathers simply assessed that peaceful economic and political relations were easier to manage than rebellions and revolts. It was for similar reasons that, after the arrival of the United Empire Loyalists, following the American Revolution and the Treaty of Paris 1783, that Best’s British forefathers re-organized the Province of Quebec into Upper and Lower Canada in 1791.

So that exclusively British rule of law and sovereignty, which Best argues is the preferred basis for reconciling collective differences, chose, in 1774 and 1791, to accommodate the diversity of language, culture, law and political representation it found within its claimed jurisdiction. So why does Best now rage against accommodations similar to those his British ancestors undertook to maintain in the past?

As noted, Best has not a lot to say about the history of French-speaking Canadians on these questions where the history of accommodation is fairly clear. Whether it is Quebec control of culture and social policy, the support for separate schools outside Quebec, the existence of civil law as running parallel to common law, or the fact that Confederation took shape around the need to recognize Quebec and later Manitoba as distinct political jurisdictions based upon their distinct ‘tribal’ constituencies, Best seems to sidestep for the most part this relevant but inconvenient history.

So at the heart of these questions is the notion of jurisdictions: legal, political, cultural and economic. The history of confederated Canada is arguably the history of the effort to accommodate a diversity of distinct legal, political, cultural and economic interests. So what is at the heart of Best’s unwillingness to move beyond the Indian Act and the reserve system in a way that accommodates Indigenous diversity through some kind of diversification of social, economic, cultural, political and legal jurisdictions?

According to Best

In Best’s version of our shared story there are clear heroes and villains. The heroes are his British forefathers, conquerors with a conscience, who, while betraying Indians (see his numerous remarks regarding the book Clearing The Plains), practiced what he calls a “benign racism”. From his somewhat ahistorical account of Macdonald’s ‘new nationality’ based on politics not race, of the treaty commissioners and colonial elites who created the Indian Act, of residential schools and the reserve system, the goal was, according to Best, to save not destroy the Indians. And, of course, there is himself, the reluctant hero fighting on behalf of the majority of Canadians and his British ancestors. These are the heroes in Best’s account.

The villains are equally clear: the Indian industry, activist judges, treacherous political elites. One is almost inclined to include, following Macdonald, savages, French half-breeds and les canadiens throughout the history of post-Confederation Canada.

In Best’s account the Royal Proclamation 1763, the BNA Act S91.24, the treaties, as literally written, are all golden, clearly and unequivocally laying out the terms of an exclusive British Crown sovereignty without any duty to consult with or recognize the rights of non-existent Indian nations. By contrast, S35 1982, Haida Nation 2004, Tsilhcot’in 2014 and various other SCC decisions have created the Indian industry which is holding Canada to economic ransom built on legal, political and culture fictions which Best sees as grounded upon so much New Age mush.

According to Manuel

According to Manuel, the problem is the colonial system of domination which must be reconstituted to make room for an Indigenous land base, Indigenous economies and Indigenous legal and political jurisdictions. Thus Manuel’s views are apparently irreconcilable with Best’s elimination of collective differences under the exclusive Crown sovereignty he espouses.

The villains for Manuel are colonialism and neo-colonials, like the AFN who work for the colonial regime to administer the colonial project in Indigenous communities in exchange for colonial money. Manuel’s solution is a grassroots led organization of communities, not dependent upon colonial funding, supporting rebuilt systems of independent political organizations, ex., of hereditary chiefs.

So the story begins for Best with the Royal Proclamation as the assertion of an exclusive Crown sovereignty. For Manuel the story begins with the Papal Bulls of the fifteenth century which presumed to legitimize the colonial projects which were unleashed on Turtle Island.

15th Century Papal Bulls

Dum Diversas of Pope Nicholas V (1452):

we grant to you full and free power, through the Apostolic authority by this edict, to invade, conquer, fight, subjugate the Saracens and pagans, and other infidels and other enemies of Christ [10]

The Bull Inter Caetera (Alexander VI) May 4, 1493:

…that barbarous nations be overthrown and brought to the faith itself… to seek out and discover certain islands and mainlands remote and unknown…that you might bring to the worship of our Redeemer and the profession of the Catholic faith their residents and inhabitants…With this proviso however that none of the islands and mainlands, found and to be found, discovered and to be discovered…be in the actual possession of any Christian king…[11]

For Manuel, the relevant history begins in the fifteenth century with the papal bulls legitimizing slavery, invasion and subjugation.[12] It is precisely this presumption of unilateral colonial legitimacy which Manuel is going to contest as an acceptable basis for any kind of reconciliation based as they were, he argues, on a racist claim to righteous domination.

By contrast, for Best, « the arrival of Europeans in Canada is just another example of the operation of that morally neutral historical process » [13] which he goes on to describe as the « historical norm of migration, conquest and assimilation ».[14]

It’s difficult to comprehend the moral outrage which sustains Best through more than 700 pages, if conquest and assimilation are morally neutral historical processes. What possible moral outrage are we to harbour when judicial decisions shift the goal posts somewhat in favour of Indigenous interests, if conquest and assimilation are morally neutral phenomena? If the colonial behaviour of Best’s ancestors was morally neutral how can the recognition of Indigenous rights be morally unacceptable and racist? Is this in fact, as Manuel’s arguments would suggest, an indication of the continuity of racist presumptions binding Best to the prejudices of his British ancestors thinly veiled as simply normative historical processes?

However, the heart of the argument here is that there is simply no history of conquest regarding the historical relationship between the British and Canadian Crowns and Indigenous Peoples in Canada. It is presumably only a prejudicial, not a rational, interpretation of that history which would claim a fabled history that is otherwise.

With regard to our 3 models of elimination, exclusion and intersection, regarding Indigenous Peoples, elimination and slavery were more characteristic of the Spanish and Portuguese in Central and South America, or Best’s American cousins south of the border, than of the French and English in Canada. Nevertheless, the doctrines of terra nullius and discovery did create the conditions for a kind of legal elimination, or at least legal subordination, as European powers asserted sovereignty and supremacy within Indigenous territories. And certainly conversion and assimilation were projects of early religious-inspired French colonial projects and later British residential schools. However, early economic activity typically took the form of interdependent relations where colonies emerged as porous exclusionary islands of tentative imperial administrative ambition within expansive territories of Indigenous Peoples.

1763 Royal Proclamation

The Royal Proclamation of October 1763 followed the Treaty of Paris of February 1763 and the start of Pontiac’s War against the British in May 1763. The Proclamation is often seen as outlining political jurisdictions including a new province of Quebec, the 13 Colonies and an Indian Reserve, recognizing aboriginal title, providing a framework for negotiating treaties, and attempting to mollify First Nations allies. [15]

For Best, his story begins with the Royal Proclamation which, as noted, he interprets as the unqualified affirmation of British Crown sovereignty over British North America in a manner Best describes as generous and benevolent towards the Indians. By contrast, Manuel refers to the European assertion of sovereignty as « almost magical ».[16] Given that Indigenous Peoples were not signatories to the Treaty of Paris 1763 which brought the Seven Years’ War to a close, rather the European Crowns of England, France, Spain and Portugal were, it raises the question how such a unilateral proclamation could bind Indigenous Peoples to the British Crown?

The alternative story of that binding depends upon an account of the Treaty of Niagara 1764, which is going to bind, according to the descendants of its Indigenous signatories, First Nations allies to the British throughout both the American Revolution and the War of 1812. Furthermore, it is precisely this assertion of Crown sovereignty in 1763 which the Supreme Court of Canada is going to struggle to reconcile with the prior occupancy of Indigenous Peoples. On this point however, Best sees no need for reconciliation, there is only the need to recognize the incontestable and exclusive assertion of sovereignty by his British ancestors as the unequivocal basis of reconciliation. Unfortunately, for Peter Best, neither Canadian courts, Canadian governments, nor what he calls the Indian industry appear to be prepared to grant that recognition of exclusive Crown sovereignty without the need to reconcile prior Indigenous occupancy. In such circumstances, Best attempts to console himself with the belief that his views are aligned with the majority of Canadians.

With regards to our 3 models, the Royal Proclamation would not seem to qualify as outright elimination despite Best’s attempted interpretation. Given its status as the Magna Carta of Indigenous Peoples under British law, it is seen as a foundation for the recognition of Aboriginal title, distinct reserved Indigenous territories and royal protection. So legal recognition rather than legal elimination seems to be the operative principle for Indigenous Peoples within the Royal Proclamation. Territorially, there appears to be a form of mutual exclusion occurring insofar as the Proclamation recognizes distinct Indigenous reserve territory as well as a prescribed process for transferring portions of it to the Crown. And there is a presumption of distinct royal protection suggesting some kind of distinct recognition in relation to the British Crown.

The only conclusion that seems certain is that the Royal Proclamation is ambiguous regarding the relationship between Indigenous Peoples and Crown sovereignty. Peter Best’s interpretation that it represents an unequivocal assertion of an exclusive Crown sovereignty over an undivided territory and undivided population does not appear to be shared by current courts and governments, nor by the writers of the written words of the document itself.

Of course there was the practical interdependence of the fur trade relationships which abided at the time in the territories the Royal Proclamation addressed. But in the face of Pontiac’s rebellion and unrest in the Thirteen Colonies, there was also a desire for peaceful relations with Indigenous allies given their military potential and economic partnerships at the time. In this environment, military and diplomatic relationships with Indigenous Peoples animated the Royal Proclamation as much as a desire to claim an unequivocal and exclusive Crown sovereignty. The 1764 Treaty of Niagara would attest to the need to affirm those relationships incorporating as it did Indigenous diplomatic protocols such as the Two Row Wampum and the Covenant Chain.[17] Each of these sub-agreements spoke to the nature of the relationship and suggest that we can look to Indigenous protocols to clarify what such exclusion and interdependence might mean historically and looking forward, as did Best’s British forefathers. Balancing the recognition of separateness and co-operation, which these protocols provide, provides us with constitutional precedents for continuing to understand these relationships.

Best develops his account in a chapter entitled "Great Britain: A Conqueror With a Conscience ».[Bch10] Unfortunately, Best seems unaware that there is simply no event of conquest between his forefathers and the Indians in Canada. Nevertheless, he continues to develop his account of Canadian history as if such a conquest had in fact occurred. He will interpret the Royal Proclamation, subsequent treaties, government policies and all SCC decisions on the basis of whether or not they align with this fabled conquest of Indigenous Peoples.

So given this false premise of an unconditional conquest, it is not surprising Best develops a number of unsubstantiated conclusions which are based upon it. Thus he fails to emphasize that the Royal Proclamation 1763 was followed by the Treaty of Paris 1763 which closed the Seven Years’ War and had as its signatories the kingdoms of Great Britain, France, Spain and Portugal. This was not a treaty with Indigenous Peoples. That treaty, the Treaty of Niagara 1764, was not a treaty of conquest but rather a framework of co-existence which formed the basis for military alliances during the American Revolution and the War of 1812. Arguably Canada as an independent country was dependent upon those military alliances of independent Indigenous allies whose participation was crucial at the time for the continuous story of its own historical, political and legal independence. Britain did not conquer Indigenous Peoples in the War of 1812 or the wars of the American Revolution. Rather, as an ensemble of allies, Canada’s independence as a nation was defended and thus asserted. Thus, I would argue, Canadian independence has as its legal and political ground, fought for and defended with the blood of our ancestors, the independence of its independent Indigenous allies. However, such an understanding is not a belief compatible with Mr. Best’s fabled rendition of these events as forming a conquest.

1850 Robinson Treaties

Best has a number of chapters dealing with treaties as part of the shared history of settlers and Indigenous Peoples. Overall the treaty process raises a number issues for Best: the absolute surrender of land, the extinguishment of rights, the affirmation of exclusive Crown sovereignty, the absence of any nation to nation relationships, any sharing of land or resources, or any duty to consult. Treaties only involved a benevolent fiduciary duty and typically limited rights to hunt, fish and trap.

Best goes on to argue that the post-Proclamation treaties also contain no references to a duty to consult, nor to sharing, nor to nations. Rather, he argues, they simply surrendered land and extinguished rights to the exclusive sovereignty of the British and later the Canadian Crowns. Which begs an obvious question. If the Royal Proclamation represents an unequivocal assertion of an exclusive Crown sovereignty, why would treaties surrendering land and extinguishing rights even be necessary? Clearly there is more ambiguity here regarding an unequivocal conquest than Best is willing to acknowledge.

Not surprisingly, there is no mention of either the Great Peace of Montreal of 1701 or the Treaty of Niagara of 1764 in Best’s writing. Clearly they are treaties which do not fit his preferred characterization. As a lawyer, it may be good practice to not provide evidence for your opponent’s position, however, in an academic context a writer needs to acknowledge the evidence both for and against his position if his conclusions are to be considered reliable.

Regarding the notion that no Indian nations existed throughout the treaty period, Best actually quotes commissioner Morris as saying that he "wished to treat with them as a nation and not with separate bands »[18]. Presumably indicating that Morris believed that nations existed and not simply bands. On this point, Best seems to confuse nations with nation states. As a result, he seems unaware of how political representation occurred at the Great Peace of Montreal in 1701 or at the Treaty of Niagara in 1763 or later treaties for that matter. Here is his account in general:

…it was in fact a situation of very small, semi-nomadic, band and clan-oriented Indian cultural/racial aggregates on the one hand, treating with the large, modern, sophisticated British or Canadian nation-state on the other hand—a complete apples dealing with an orange situation—political mice dealing with a political elephant. [19]

He offers no understanding of clan-based political organization or the many confederacies which existed in Indigenous territories throughout the colonial period. In any event, for Best, there is really no substantial political institutions on the Indigenous side of the treaty table facing the British or Canadian nation states. So it is not surprising that he sees any notion of a jurisdictional space within the Canadian confederation for accommodating Indigenous Peoples as essentially fictional and empty. If so, why are Best’s British ancestors, and the French nation-state representatives before them, sitting down and negotiating treaties? With whom are they negotiating? And what is their collective political status from the French and British perspectives?

Best does not really say who is negotiating on the other side of the table, other than using the language of bands, clans and tribes. Nevertheless, they had the collective political right to do treaties, from the French and later British and Canadian political points of view. So it is unclear where Best’s arguments are supposed to take us. On the one hand, he clearly wants to suggest that Indigenous Peoples do not have the legal and political capacities of nations. And yet, nation-states have a history of doing treaties with them, treaties which incorporate Indigenous protocols (symbolism and wampum belts), as well as, Indigenous political signatories. Best appears to want to use his own ignorance as evidence for why Indigenous Peoples should not have the political capacities that his ancestors clearly acknowledged they had through his ancestors’ own political actions and institutions.

Regarding the duty to consult, Best argues there is no explicit mention of this requirement in the text of the treaties. Which again begs the question, then why are Best’s ancestors engaging in treaties with the political representatives of Indigenous Peoples? The Royal Proclamation lays out the requirements for doing treaties with Indigenous Peoples regarding Indigenous territories. Why is that not clear evidence of the need to consult Indigenous Peoples regarding matters which pertain to them? If treaty-making was a necessity and an obligation for his ancestors, despite written treaties making no explicit mention of a duty to consult, why does the obligation to do treaties and thus to so consult, not count or persist according to Mr. Best?

In citing « the Indian industry’s mindless graspings for more money and power » [20] Best laments the passing of the shared culture where « the hardships and privations experienced equally by Indians and settlers alike and the resulting barter trade, intermarriage…and mutual sharing of knowledge, food, tools and equipment that was engaged in to overcome it. It was the same kind of wilderness partnership-like co-existence that had existed for 200 years between the French and the Indians during the times of the fur trade. »[21]

Such remarks beg the question, why can’t Mr. Best see in such historical precedents of « partnership-like co-existence that had existed for 200 years between the French and the Indians » as part of the history of precedents of political co-existence as well? Is this not precisely the kind of co-existence, both individual and collective, which reflections on Canadian history afford and upon which Arthur Manuel equally bases his characterization of reconciling differences, i.e., the partnerships of the fur trade era? Manuel and Best seem to share some common characterizations of the first 200 years, the fur trade era of separate but co-operative relationships. Why do they differ so starkly regarding the last 200 years?

Why would such fur trade era partnerships not suggest a combined exclusion-intersection model for interpreting treaties and reconciling differences rather than the elimination model Best espouses based upon his interpretation of the exclusive Crown sovereignty of his British ancestors and their fabled conquest of the Indians?

Best takes the literal wording of documents which he acknowledges were unreadable for Indigenous participants, he takes the written accounts of commissioners at their word, and he takes the forged signatures and Xs of Indigenous participants as legal acts of unambiguous agreement. In the case of the Robinson Treaties he notes « The discussions and negotiations were amazingly brief »[22] and interprets such perfunctoriness as somehow an indication of the depth of the understanding regarding such agreements about ceding land, surrendering title and extinguishing rights when in fact ceding, surrendering and extinguishing were no part of the history of co-existence during the fur trade era which arguably formed the historical precedents for understanding the treaty relationship the participants were envisioning.

By contrast, Manuel refers to treaties and the BNA Act as incremental theft based upon « falsehoods and fraudulent deals » [23], amounting to « the biggest land theft in the history of mankind »[24] So there appears to be little room for reconciliation between Best and Manuel when it comes to interpreting treaties or the BNA Act. There is no conquest only what Manuel refers to as an « almost magical » [25] assertion of Crown sovereignty. So how do we restore ‘friendly relations’ and ‘compatible beliefs’, if this is the provided basis for reconciling Best and Manuel?

To return to our 3 models of reconciling difference, with regard to interpreting treaties, Best is clearly asserting a legal elimination interpretation. Treaties eliminate Indians as legal agents of Aboriginal title and Aboriginal rights. Rights are extinguished, land is surrendered and exclusive Crown sovereignty is asserted. All that remains is the Indian Act and the reserve system, which Best sees as anomalies in need of further elimination to render a final solution to the ‘Indian problem’.

1888 St. Catharines Milling

It was suggested in the course of the argument for the Dominion, that inasmuch as the proclamation recites that the territories thereby reserved for Indians had never ‘been ceded to or purchased by’ the Crown, the entire property of the land remained with them. That inference is, however, at variance with the terms of the instrument, which shew that the tenure of the Indians was a personal and usufructuary right, dependent upon the good will of the Sovereign. The lands reserved are expressly stated to be ‘parts of Our dominions and territories;’ and it is declared to be the will and pleasure of the sovereign that, ‘for the present,’ they shall be reserved for the use of the Indians, as their hunting grounds, under his protection and dominion. There was a great deal of learned discussion at the Bar with respect to the precise quality of the Indian right, but their Lordships do not consider it necessary to express any opinion upon the point. It appears to them to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished. [26]

The 1888 Judicial Committee of the Privy Council (JCPC) decision in St. Catherine’s Milling and Lumber Co. established the Royal Proclamation as the source of Aboriginal rights. It would not be until Calder in 1973 that Canadian courts adopted the view that Aboriginal rights are not dependent upon government recognition but arise at common law by virtue of prior and continued occupancy and use of land. Nevertheless St. Catherine’s laid a foundation that would persist for interpreting the relationship between Indian title and treaties. [27]

St. Catherine’s revolved around a federal-provincial dispute over who owned the land after a treaty surrender, the provincial or the federal Crown. This in turn depended upon whether it was public or private (fee simple) land before Confederation. Public land devolved to the province, private to the federal government. The Privy Council based its decision on the Royal Proclamation as creating a personal and usufructuary Indian interest dependent upon the good will of the Sovereign. As such, it was less than full fee simple, thus public, and thus provincial. [28] Furthermore, although S91.24 of the Constitution Act 1867 gave the federal government legislative administrative authority and the executive capacity to do treaties, provincial governments own the land based upon S109. [29]

Neither Best nor Manuel make any mention of the St. Catherine’s Milling case. This is curious insofar as, for all intents and purposes, Best’s whole strategy of working from an interpretation of the Royal Proclamation as representing an unequivocal and exclusive assertion of British Crown sovereignty, follows the JCPC interpretation of Aboriginal title as merely a usufructuary right dependent upon the goodwill of the Crown and the underlying Crown title. It is precisely this Privy Council interpretation that the Supreme Court of Canada is going to turn away from with their Calder decision in 1973.

1973 Calder

Here is a crucial statement from Calder 1973.

Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a “personal or usufructuary right”. What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was “dependent on the goodwill of the Sovereign”…The aboriginal Indian title does not depend on treaty, executive order or legislative enactment. [30]

Here is a brief assessment.

What the Supreme Court concluded was groundbreaking…the Supreme Court ruled in 1973 that Aboriginal title had indeed existed at the time of the Royal Proclamation of 1763. The Supreme Court’s 1973 decision was the first time that the Canadian legal system acknowledged the existence of Aboriginal title to land and that such title existed outside of, and was not simply derived from, colonial law.[31]

The Calder case (1973) considered the existence of Aboriginal title over lands historically occupied by the Nisga’a of British Columbia. The SCC ruling recognized Aboriginal title for the first time in Canadian law. The Calder case forms the foundation for the first modern land claim, the Nisga’a Treaty 2000, which involved self-government. Six of the seven judges ruled that Aboriginal title existed in Canadian law, however, they split over whether extinguishment had occurred. The deciding vote sided against the Nisga’a on a process technicality regarding the suit against the provincial government. Nevertheless, Calder recognizes Aboriginal title as a legal right based upon the occupation of traditional territories. Thus Calder runs contrary to the 1969 White Paper. As a result the federal government develops a policy on comprehensive land claims. Calder also influences the decision to include Aboriginal rights in S35 of the Constitution Act 1982. [32]

Calder, in effect, is a turning point in a process of SCC adjudication on Aboriginal rights and title which overturns the JCPC interpretation, presumably Best’s preferred interpretation, of Aboriginal title and rights. Manuel sees Calder 1973 and Delgamuukw 1977 as recognizing the existence of Aboriginal title and that such title carries a proprietary interest. On Calder, Manuel observes:

The first signal from the court that all was not well with Canada’s Indian policy came way back in 1973 with the so-called Calder decision, where the Supreme Court split on the idea that Aboriginal title had survived Confederation to remain a burden on Crown title…Pierre Trudeau famously responded to the Calder decision by proclaiming, “Perhaps you have more legal rights than we thought …” [33]

By contrast these decisions draw little attention from Best. Calder is only mentioned once in passing in a quoted reference to S.35[34] and Delgamuukw gets no mention in Best. By contrast, Haida Nation 2004 gets 139 mentions in Best and Tshilcot’in 2014 gets 35. This is surprising given that Calder is the key turning point where the SCC moves away from the Royal Proclamation as the basis for Aboriginal title and sees prior occupancy as paramount, a turn Best clearly does not want to follow.

So what do we take from Calder regarding our three models of reconciling differences? First, that the elimination model is clearly not supported by Canada’s constitutional history. Calder takes us back to the fur trade era of wilderness partnerships and co-existence. From here the SCC will struggle to reconcile title based upon prior occupancy with title based upon the Crown’s assertion of sovereignty. The SCC, for all intents and purposes, has given up on the fabled conquest and the JCPC 1888 decision, upon which Best’s interpretation of history seemingly depends as the basis for Indigenous-Crown relations.

1982 Constitution Act S35

S35 recognizes and affirms existing Aboriginal rights. It does not create them, nor does it define them. This was to be the task of political conferences which followed, according to S37. However, those conferences failed and, as a result, the question of defining rights moved into the judicial arena. For example, Sparrow clarified that the phrase « existing aboriginal rights » does not revive extinguished rights but « must be interpreted flexibly so as to permit their evolution over time ». S35 also indicated that Aboriginal peoples include Indians, Métis and Inuit.[35]

Manuel argues that it was because of such Indigenous activism as the Constitution Express that Section 35, recognizing Aboriginal rights, was inserted into the patriated Constitution. Furthermore, the S37 conferences were where the place of Indigenous Peoples in the Canadian constitutional framework, « as a founding people with an inherent right to govern ourselves », was supposed to be negotiated. Manuel argues for the need to restart those S37 negotiations.[36] He rejects the interpretation of recognition in S35 as meaning reconciling them out of existence by subsuming them within federal and provincial powers. Rather S35, he says, is in the constitution precisely to protect Aboriginal and treaty rights. He argues for a strategy of walking away from « termination tables » which seek to extinguish rights and demanding to be addressed as nations.[37]

It is certainly noteworthy that the S37 conferences were initially part of the Constitution Act 1982.

The conference convened under subsection (1) shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on that item.[38]

It is clear from S37 that the « definition of the rights » of the Aboriginal Peoples of Canada was an intended goal of the conferences and that Aboriginal representatives were to participate. The point would appear to be clear enough that such political discussions were intended to lead to definitions of Aboriginal rights and that Aboriginal political representatives were to be party to such discussions, so very different from Charlottetown in 1864. However, it remained open what those rights might be or how decisions leading to such definitions would be reached and by whom.

Nevertheless, it seems reasonable to argue that Aboriginal rights were constitutionally intended to arise from negotiations involving Aboriginal Peoples’ political representatives. One would assume that such a basis would help define the overall process of defining such rights going forward and provide the court with some guidelines as to constitutional intentions. In other words, federal or provincial governments should no longer presume to unilaterally define rights simply through legislative processes.

Manuel argues there is an affirmative obligation on the federal government to bring its laws and policies in line with the highest law in the country, the Canadian Constitution Act, and the highest court in the country, the Supreme Court of Canada[39] that recognizes « our right to self-determination and our land rights » in Section 35 of the Constitution.[40] In other words, Manuel calls upon the federal and provincial governments to bring their statutory laws into harmony with S35.

For Best, the meaning of S35 is also clear and therefore it must be repealed.

[S35] thereby unwittingly created the legal basis for highly activist courts—in the Indian rights litigation explosion that ensued after 1982—to almost completely destroy the Crown sovereignty-legislative supremacy constitutional model that had enabled Canada, up until that time, as a relatively united country, to so thrive and prosper on all fronts—economic, social and political.[41]

Best interprets the Canadian people as collectively embodying the Crown through elected representatives. Through S35 this embodiment is broken and Canadians would « no longer be masters in our own house. » [42] With words that curiously echo the slogan of Quebec nationalists during the Quiet Revolution, «maitre chez nous »,[43], Best appeals to a unitary vision where « our own house » presumably has no room for such Quebec nationalists or Indigenous nationalists either.

Section 35 of the Charter…is this constitutional law, which is higher than any law passed by any legislature, and which no legislature can violate, which provides the primary legal foundation for Haida Nation and the successive, de-stabilizing, devolutionary and otherwise socially, economically and politically harmful higher court decisions which have built on it. [44]

Presumably, because he has given no consideration to Calder (1973), Best appears to argue that the turning point is simply the ill-advised politicians who created the 1982 Constitution with S35. But as we have noted and as Manuel as argued S35 flows from the Indigenous activism lying behind Calder and the Constitution Express. In other words, that the courts and the politicians are in sync is due to the courts reflections on the historical record and the untenable claim that the Royal Proclamation 1763 could be the sole basis of Aboriginal title.

As a result, Best must cling to his notion of the ‘fabled conquest’, what Manuel calls the almost magical assertion of sovereignty. In the absence of any military conquest, Best must postulate a normative historical process, morally neutral, acting out by some hidden necessity, selecting his British ancestors as the rightful heirs of North America and the territories of Indigenous Peoples. Clearly the SCC is not buying it in 1973, even if the JCPC did back in 1888.

So where does that leave us and our three models of reconciliation. Clearly the elimination model, in the absence of any military conquest, and in the absence of the political will or judicial reasoning to envision a fabled conquest, appears to be untenable. Aboriginal Peoples and Aboriginal rights are part of the Canadian constitution just as they are an essential part of Canada’s history. So that leaves some combination of the exclusion and intersection models to consider.

1984 Guerin

R. v. Guerin is a landmark Supreme Court of Canada decision that established the Canadian government’s fiduciary duty to First Nations, a trust-like relationship stemming from the sui generis right of Aboriginal title…In other words, the federal government has the obligation to act in their best interest. Chief Justices…understood this relationship to be characterized by Section 18 of the Indian Act, which specifies that reserves are held by the Crown « for the use and benefit of the respective bands for which they are set apart »…The government demonstrated it did not act in Musqueam’s best interest by not consulting them about the revised terms of the lease.[45]

…the Supreme Court of Canada…found that the federal government had breached the terms of the Royal Proclamation of 1763…[that] the Crown must act only in the interests of Indigenous people. The court’s decision established that Aboriginal title (i.e., ownership) was sui generis, or a unique and inalienable (absolute) right…fiduciary duty became central to Section 35 of the Constitution Act, 1982…[46]

And here is another account of how Guerin draws the fiduciary duty from the Indian Act and the idea of land surrenders to the Crown.

The Indian Act prevents reserve land from being sold alienated, leased or otherwise disposed to any party other than the Crown i.e. it can only be surrendered (alienated) to the Crown. Once surrendered, the Crown is interposed between the Band and a third party, thus placing the Crown a in a trust-like capacity. In this capacity, the Crown is under a fiduciary duty to act in the Band’s best interests, which is a relationship governed by the law of equity.[47]

There is no mention of Guerin in either Manuel or Best. Nevertheless Guerin is another important landmark decision essential to understanding the relationship between Indigenous and non-Indigenous Peoples. In light of our discussion of the three models of reconciliation and the seeming irreconcilability of the stated positions of Manuel and Best, where does the idea of fiduciary duty fit?

Given that this fiduciary duty is tied to interpretations of fundamental historical documents, such as the Royal Proclamation and the Indian Act, it is hard to see how it could be reconciled with the elimination model of the relationship. Given the sui generis nature of that relationship, and the notion that the duty requires that the Crown act in the best interest of the Indian band, elimination seems like a rather impossible interpretation of that duty. To stretch an analogy, only a notion related to mercy killing would allow for elimination as an appropriate interpretation of that fiduciary responsibility. Now, this might satisfy Best who sees assimilation and thus elimination as a benevolent act, but this seems to fly in the face of the very notion of acting in the best interest of a legal beneficiary. Especially when we consider that the Musqueam band brought the case forward with the recognized legal capacity to do so. So it is difficult to see how the fiduciary relationship can support Best’s interpretation based as it is on Indians not having any underlying legal capacities as distinct legal collectives.

The sui generis nature of the relationship suggests it can not be dissolved into anything else without fundamentally transforming it. And if any such transformation is to be undertaken, it must be undertaken to the benefit of the beneficiary. Given that the beneficiary has the capacity to speak for herself, it would seem highly unlikely that the band would agree to its own dissolution into a form which would satisfy Best’s demand for legal elimination into the settler body politic. In effect, despite the fact that the fiduciary relationship appears to give control over to the trustee, the assessment of what would qualify as a benefit to the beneficiary would seem not to be in the complete control of the trustee. The beneficiary still has a legal voice.

In other words, the sui generis fiduciary duty would seem to suggest a peculiar intersection and interrelationship, distinct but related, between the Crown and Indigenous Peoples which perhaps aligns best with our third intersection model of reconciliation. Although, insofar as it is tied to an interpretation of an obligation flowing from reserves and surrenders, there is an element of the mutual exclusion model also, if we see reserves as islands of peculiar and ambiguous jurisdiction.

1990 Sparrow

The Sparrow 1990 case again involves the Musqueam band. They argued for a right to fish in traditional territories, that their rights to land and resources had never been extinguished, that S35 reinforced this right, and that infringement was invalid in that restricting fishing net sizes was not justified by reason of conservation. The SCC agreed that the Musqueam had an « existing » and unextinguished right to fish. The SCC also agreed that « recognized and affirmed » in S35 meant that « the government cannot override or infringe upon these rights without justification ». Thus Sparrow upheld the Guerin decision of a fiduciary relationship between the government and First Nations. [48]

This led to the Sparrow Test of justified infringement. The first part of the test is determining if a right has been infringed, for example, through undue hardship, by being unreasonable, or by preventing the exercise of the right. The court then outlined justifiable grounds for infringing an Aboriginal right, primarily, if it serves a « valid legislative objective » such as conserving natural resources, if fair compensation is provided, if it minimizes infringement and if relevant Aboriginal groups are consulted.[49]

Sparrow can be seen as the SCC delineating aspects of the meaning of S35 which the politicians had failed to do in those S37 conferences.

This appeal required the Supreme Court to explore for the first time the scope of s. 35(1) of the Constitution Act, 1982…Issue: Whether Parliament’s power to regulate fishing is limited by s. 35(1)…Majority Opinion Reasoning:…Aboriginal rights are not extinguished merely by their being controlled in great detail by the regulations under the Fisheries Act. Nothing in that Act or its detailed regulations demonstrated a clear and plain intention to extinguish the Aboriginal right to fish. Fishing permits were simply a manner of controlling the fisheries, not of defining underlying Aboriginal right. Historical Crown policy can neither extinguish existing Aboriginal right without a clear intention nor delineate the Aboriginal right. The nature of government regulations cannot be determinative of content or scope of existing Aboriginal rights. Government policy can regulate the exercise of the Aboriginal right but such regulation must be in keeping with s. 35(1).[50]

So in effect the Sparrow Test is a court interpretation of the meaning of S35.

“Existing Aboriginal Rights”…must be interpreted flexibly so as to permit their evolution over time and must reject a “frozen rights” approach…“Recognized and Affirmed”…must include appreciation of history and policy between Crown and Aboriginal peoples, and be construed in a purposive way, because the purposes of s.35 demand generous and liberal interpretation. [51]

The Sparrow Test is an S35 test of whether interference is justified. Furthermore, if infringement is identified, does « the legislative objective uphold the honour of the Crown? » The onus is on the Aboriginal claimant challenging the legislation regarding identifying if infringement has occurred. The onus is on the Crown regarding defending the impugned legislation.

The justificatory standard is a heavy onus on the Crown but s. 35(1) requires that the Aboriginal right be given priority over the interests of other groups. [52]

There is no mention of Sparrow in Manuel.

The only mention of Sparrow by Best is indirect through quoting the court regarding injunctions and what Best sees as the environment of business uncertainty the court’s position on Aboriginal rights has created, especially as it applies to injunctions regarding natural resource development. Best quotes the court statement from the chapter Best entitled The Frontenac Ventures Blockade:

…the clear line of Supreme Court jurisprudence, from Sparrow to Mikisew, where constitutionally protected aboriginal rights are asserted, injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests…[53]

This court statement reflects the precise perspective of Indigenous rights with which Best takes issue, the idea of Aboriginal rights themselves, a fiduciary relationship upholding the honour of the Crown, and the need to consult. All of this leads Best to lament the state of economic uncertainty unleashed.

However, from the point of view of our three models of reconciliation what Sparrow appears to represent is a deepening of the intersection model into Canadian law and jurisdiction, economics and politics, much to the chagrin of Peter Best. The honour of the Crown and the fiduciary relationship, the Sparrow Test of balancing Aboriginal rights with valid legislative objectives, suggests neither the elimination model nor a strict exclusion model. As Best so intensely objects, the Indians are now sitting in the economic board rooms and political chambers of power, with the leverage to challenge settler institutions which have 1) failed to eliminate them and 2) failed to exclude them.

The question which remains, post-Guerin and Sparrow, is how will this intricate web of interrelationships evolve over time? And can we look to history and the law to help us find our way into the future?

1996 Van Der Peet

There appears to be general agreement that Van Der Peet (1996) restricts the rights outlined in Sparrow (1990).

In 1996, the Supreme Court upheld the Court of Appeal’s finding, ruling that while fishing constitutes an Aboriginal right, the sale of such fish does not… The Court’s decision thus went beyond the earlier Sparrow ruling (1990), to define particular Aboriginal rights regarding fishing. The ruling also resulted in what is known today as the Van der Peet Test, or the “Integral to a Distinctive Culture Test,” which determines how an Aboriginal right is to be defined. Specifically, the right must be proven to be integral to the culture of the claimant. [54]

While acknowledging the perspective of Aboriginal peoples themselves, the decision indicates that an integral « practice, custom or tradition » needs to be of central significance to the Aboriginal society. There also needs to be continuity with the practices, customs and traditions existing « prior to contact ». The evidentiary difficulties need to be recognized. Claims to rights must be specific not general. Van Der Peet has been criticized as circumscribing the scope of rights outlined in Sparrow. Furthermore, that Van Der Peet relies on a notion of static and unchanging cultural continuity with the past, a criteria not applied to non-Aboriginal society. [55]

“To constitute an Aboriginal right, an activity must be an element of a custom, practice or tradition forming an integral part of a distinct culture of the Aboriginal group that claims the right in question,” according to the criteria of the test…Two judges…argued that the Stó:lō did have the right to sell fish. They did not feel that it was necessary for the practice of selling fish (or any other custom) to have been established before European contact…[56]

There is no mention of Van Der Peet in either Best or Manuel.

So what are we take from Van Der Peet for our three models of reconciliation. In essence, by restricting Sparrow’s scope, Van Der Peet can be seen as setting up conflicting judicial interpretations regarding how Aboriginal rights are to be dealt with. In other words, Van Der Peet has made the intersection model of reconciliation more contentious and conflicted. To the degree that Sparrow and Van Der Peet push in opposite directions, the relationship of reconciliation likely becomes more problematic, not less. But then again, is that not just what one would expect from the intersection model? It is perhaps evidence for why the simplicities of the elimination and strict mutual exclusion models are so attractive. The web of interrelationships the intersection model sets up is bound to be messy and prone to problematic circumstances and thus, perhaps, a fruitful environment for lawyers.

1997 Delgamuukw

Delgamuukw will be the first major case on Aboriginal title since Calder (1973) and after S35 (1982).

Aboriginal title received its first significant review under section 35 of the Constitution Act 1982 in the 1997 decision of R. v. Delgamuukw…The decision indicated that Aboriginal title was a constitutionalized “right to the land itself”, which could be used “for a wide variety of purposes”. The decision created the potential for conflicting claims to land between Aboriginal peoples and the Crown throughout British Columbia. To resolve this impasse the Supreme Court of Canada suggested that negotiations were more appropriate than litigation to resolve issues of Aboriginal title.[57]

The SCC characterizes Aboriginal title as « sui genesis », distinguished from other proprietary interests, is communally held and pre-exists the assertion of British sovereignty with the Royal Proclamation 1763.

Aboriginal title is sui generis…Another dimension of aboriginal title is its sources: its recognition by the Royal Proclamation, 1763 and the relationship between the common law which recognizes occupation as proof of possession and systems of aboriginal law pre‑existing assertion of British sovereignty. Finally, aboriginal title is held communally…[58]

The sui generis nature of Aboriginal title is linked to the fiduciary relationship between the Crown and Aboriginal Peoples.

This sui generis interest is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts. It is personal in that it is generally inalienable except to the Crown and, in dealing with this interest, the Crown is subject to a fiduciary obligation to treat the aboriginal peoples fairly…[59]

Aboriginal title is a right protected by S35 along with other rights arising from the integral practices, customs and traditions of distinctive cultures, which co-exist with settler common law rights from the time of contact. Such Aboriginal rights are protected both by internal Aboriginal institutions and common law.[60]

Because Aboriginal rights are sui generis the perspective of aboriginal peoples is essential to considerations of evidence.

In other words, although the doctrine of aboriginal rights is a common law doctrine, aboriginal rights are truly sui generis, and demand a unique approach to the treatment of evidence which accords due weight to the perspective of aboriginal peoples…[61]

Delgamuukw recognizes that Aboriginal title is a right in land and not simply a right to engage in activities, nor is it restricted by notions of integral practices, customs and traditions of distinctive cultures. Delgamuukw sees such activities as « parasitic on the underlying title ».

Those activities do not constitute the right per se; rather, they are parasitic on the underlying title. [62]

The above assertions suggest an opening of the restrictions found in Van Der Peet vis-a-vis Sparrow. On the other hand, Delgamuukw offers its own restriction, that the range of uses « must not be irreconcilable with the nature of the attachment to the land » which forms the basis of the group’s Aboriginal title.

This inherent limit…flows from the definition of aboriginal title as a sui generis interest in land, and is one way in which aboriginal title is distinct from a fee simple…[63]

As sui generis, Aboriginal title is unique going beyond both common law and Aboriginal law rules of property. Thus, as with other Aboriginal rights, Aboriginal title requires both a common law and Indigenous understanding.[64]

Taking issue with the JCPC St. Catherine’s Milling decision regarding the source of Aboriginal title in the Royal Proclamation 1763, Delgamuukw reaffirms the pivot turn in Calder 1973, that Aboriginal title « arises from prior occupation ».

Another dimension of aboriginal title is its source. It had originally been thought that the source of aboriginal title in Canada was the Royal Proclamation, 1763: see St. Catherine’s Milling. However, it is now clear that although aboriginal title was recognized by the Proclamation, it arises from the prior occupation of Canada by aboriginal peoples. That prior occupation, however, is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the physical fact of occupation, which derives from the common law principle that occupation is proof of possession in law…What makes aboriginal title sui generis is that it arises from possession before the assertion of British sovereignty, whereas normal estates, like fee simple, arise afterward…that “aboriginal title pre-dated colonization by the British and survived British claims of sovereignty”…What this suggests is a second source for aboriginal title – the relationship between common law and pre-existing systems of aboriginal law…[65]

Thus Delgamuukw deepens the notion of the sui generis nature of Aboriginal title and rights as rooted in prior occupancy and thus is rooted in « the relationship between common law and pre-existing systems of aboriginal law ». With the re-assessment in Delgamuukw, we appear to be moving deeper into the independence-interdependence dynamic of the combined exclusion-intersection models of reconciliation.

Furthermore Delgamuukw speaks directly to the fact that Aboriginal title is communally held, and that decision-making regarding that collective right to land are also « made by the community ».

Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests…[66]

With these remarks, Delgamuukw does not only offer an elaboration of S35 rights, it also speaks to the nature of any political discussions expressing such rights. Such political decisions must be « made by that community » involved in the « collective right to land ».

Manuel sees Calder and Delgamuukw as undermining the non-consensual, almost magical assertion of Crown sovereignty based upon the untenable notions of terra nullius and the doctrine of discovery. Delgamuukw recognized Aboriginal title « as a right to the land itself ».[33] For Manuel, it raises the fundamental question « who exactly is the rightful title holder? »[67] In Delgamuukw it was the hereditary chiefs not the elected Indian Act chiefs who brought the case and who were recognized by the court when their standing was challenged by the Indian Act chiefs.

Delgamuukw gets no mention in Best.

Delgamuukw appears to re-expand the rights in Sparrow after the restrictions in Van Der Peet. And, as noted, it deepens the intricacies of the exclusion-intersection models of reconciliation. The exclusion features of the concept of Aboriginal rights and title as sui generis as to nature and source means that Best’s elimination model is simply untenable given the full recounting of Canadian history and law. The idea that Aboriginal peoples, rights and title retain a unique degree of independence, means the mutual exclusion model remains as an interpretive element in Canadian history, politics and law. It is the recognition of Indigenous independence of the mutual exclusion principle which is at work in the concepts of sui generis, prior occupancy, the Indian reserve and treaty process of the Royal Proclamation, S91.24 1867 and the reserve system, S91.24 1867 and the Indian Act. All of these speak to the irreducibility of Indigenous peoples, land and law in Canadian history and thus to the inability of the elimination model, which Best so ardently seeks, to be a basis for friendly relations or the compatibility of beliefs.

As a result, from Calder to Delgamuukw, the courts continue to outline some of the details of the sui generis intersection and interrelationship between the Crown and Indigenous Peoples.

2004 Haida Nation

Haida Nation will clarify the duty to consult triggered by the sui generis relationship between Indigenous Peoples, land title and rights, and the Crown. Haida Nation (2004) sets out a 2-part test for triggering the « duty to consult ». The Crown must have knowledge of an existing Aboriginal right or title and it must be contemplating conduct that « might adversely affect it ». The goal of the consultation must be to work towards the « reconciliation of Aboriginal and Crown interests » required by S35 1982. The duty to consult is grounded in the « honour of the Crown » which exists independent of any treaty obligations.

While there is no duty to agree, the honour of the Crown requires that it act in good faith at all times and have a genuine intention to address Aboriginal concerns. Aboriginal parties must also act in good faith and may not take unreasonable positions to sabotage the Crown’s attempts to come to a mutual understanding.[68]

In other words, the parties must conduct themselves in accord with the constitutional goal of reconciling Crown-Aboriginal interests. The court found that the Crown had failed to consult meaningfully with the Haida and instead unilaterally imposed an action which compromised rather than encouraged the required reconciliation process.

The Court held that although the Minister was owed deference in governing the herring roe fishery, that deference would not trump the real and serious concerns raised by the Haida Nation.[69]

The honour of the Crown is the source of the duty to consult and requires formal participation in decision-making.

…the source of a duty to consult with aboriginal peoples and accommodate their interest arises out of the honour of the Crown..This requires allowing the First Nations to make submissions for consideration, to formally participate in the decision-making, and ensuring that the Crown publishes reasons showing how the aboriginal concerns were factored into their decisions…[70]

There is no duty to agree and thus no veto.

There is no duty to come to an agreement - there is only a duty to consult. When the consultation suggests an amendment of Crown policy, then the Crown must accommodate. This involves taking steps to avoid irreparable harm and minimizing the effects of infringement. Once again, this does not give the aboriginals a veto…[71]

The duty to consult only applies to the Crown and not to third parties, ex., corporations.

McLachlin makes it clear that the legal duty to consult and possibly accommodate only applies to the Crown, and not third parties. This is because the duty arises out of the Crown’s honour in the “special relationship” it has with aboriginals, which does not exist with third parties. [72]

« Haida Nation » gets only one mention in Manuel, it is mentioned 130 times in Best. Manuel simply notes that Haida Nation (2004) « moved the legal cause forward » by establishing the Crown’s duty to consult and accommodate Aboriginal rights and title « on an interim basis until the matter is resolved in a more permanent manner through agreement, treaty or litigation ». [73]

As noted, « Haida Nation » gets over 130 mentions in Best, a chapter to itself The Haida Nation Case, and thus is clearly a focus of Best’s concerns and ire. In a few words, here is why.

Members of the Indian industry include, but are not limited to, Indian band elites, (chiefs, band councilors and band employees), the new Indian “development corporations” springing up everywhere to take advantage of the new “consult and accommodate” legal windfall recently granted to Indians by our Supreme Court, (see The Haida Nation Case below), Indian federations, alliances, assemblies, associations and other such Canadian taxpayer-funded Indian advocacy and lobbying organizations.[74]

So for Best, Haida Nation has essentially created the Indian industry by « legal windfall ». But is this a fair assessment? Recall in Best there are few mentions of the preceding cases, Calder (1973) once in a quote, Guerin (1984) none, Sparrow (1990) once in a quote, Van Der Peet (1996) none and Delgamuukw (1997) none. Given these legal precedents before and after S35 1982, is Haida Nation (2004) really a bolt from the blue or, in fact, simply a logical extension of what has preceded it? For over thirty years since Calder (1973), the courts have consistently moved away from the JCPC’s evaluation of Aboriginal title and rights in St. Catherine’s Milling (1888) as solely based upon the Royal Proclamation 1763. So if Best is going to ignore this continuity of legal history, it is little wonder he experiences shock and incomprehension with Haida Nation (2004).

It would appear that the SCC is simply trying to deal with the vacuum left by the politicians after the S37 conferences failed to provide detail for Aboriginal rights. For Best, this « legal windfall » creates an Indian industry financed by a Danegeld ransom on economic development, extinguishes any notion of an ultimate Crown sovereignty, instead inventing a peculiar concept of reconciliation. Best is outraged at the courts reconciling pre-treaty rights with post-treaty rights in a manner where Indian rights were not extinguished. It is worth quoting Best at some length, to grasp a sample of his moral outrage at these legal, economic and political developments, an outrage which animates him across more than 700 pages.

The federal and provincial Crowns in Canada, as the result of these court decisions and, more shockingly, the inexplicably unwise, unprincipled, craven and anemic response to them by our politicians, senior bureaucrats and law enforcement officials, are becoming slowly but surely legally emasculated in the face of ever more aggressive, well-financed (usually, ultimately, by the Crowns themselves) and well-organized legal, economic and vigilante attacks (illegal roadblocks and occupations) being made by Indian band leaderships and interest groups against their fellow Canadians. Reconciliation, the professed high value supposedly now governing relations between Indians and non-Indians in Canada, and a word one reads in all these recent court decisions—a word used by the courts in a very odd, unusual and counter-intuitive way, but understood by ordinary Canadians only in its plain and ordinary meaning—is being more and more rendered impossible by these court decisions and the emergent effects of them. [75]

Again the keys to this diabolical kingdom were proffered with Haida Nation (2004).

The main court decision which solidified this dispiriting, disharmonious and devolutionary trend, and which is now one of the basic jurisprudential starting points for any enquiry into this serious issue, is the Supreme Court of Canada’s Haida Nation decision. [76]

It is with Best’s remarks about Haida Nation that we get a clear indication of what reconciliation means to him.

The court used the word “reconciliation” in the unusual sense of meaning…in effect that each sets of rights, Indian and non-Indian, continued and continues today to exist. There was no general extinguishment of Indian rights! [77]

Best is appalled that the extinguishment of Indian rights is not recognized and that the elimination model is not the law of the land. For Best the elimination of the Other, of Indians in Canada, is the only notion of reconciliation with which he is willing to live. And he believes he speaks for « most Canadians ».

Most Canadians since the beginning of the treaty-making processes—until now told by the Supreme Court to the contrary—reasonably thought that aboriginal claims to and rights over the land were more than “reconciled.” In fact, Canadians, Indians and non-Indians alike, thought they were—especially in treaty areas—extinguished, plain and simple, subject to very simple and clearly worded exceptions, being essentially the right to hunt, fish and trap on unoccupied wilderness Crown lands, subject to ultimate Crown sovereignty and control, small annual cash payments and reservations.[78]

Claiming for himself the vision afforded to « all sides », Best can barely contain his contempt for the idea of reconciliation as sharing and reconciling Crown sovereignty with Aboriginal prior occupancy, and not as the extinguishment of Aboriginal rights, and the surrendering of Aboriginal land and title, to the ultimate Crown sovereignty of his British ancestors and forefathers. Again it is all because of Haida Nation (2004).

Suddenly, with Haida Nation, after well over a century of established law, practice and understanding on all sides, that’s no longer the case. The meaning and effect of Haida Nation is that now it can no longer be said that the treaties were entered into for the purpose of extinguishing Indian title to Canadian lands, thus allowing us all, under the protective umbrella of ultimate Crown sovereignty, to move on into the future with the goal of eventually becoming equals in every respect. Haida Nation, and the cases decided by our higher courts since then, say that the treaties were entered into merely in order to “reconcile” Indians prior sovereign occupancy of the land with the new sovereignty of the Crown, that they were instruments of power and land sharing, not instruments of rights extinguishment! [79]

To reiterate, Best clearly says « suddenly, with Haida Nation, after well over a century of establish law, practice and understanding on all sides ». Given the overlooking by Best of Calder, Guerin, Sparrow, Van Der Peet and Delgamuukw as they grappled with the inconsistencies and vacuums of Canadian legal history surrounding S35 1982, it is little wonder Best can use the word « suddenly » to describe Haida Nation (2004). As for what was established « on all sides », such a remark seems more likely an indication of Mr. Best’s emotional torment than any rational and informed statement on the state of Canadian jurisprudence regarding Aboriginal rights and title. « On all sides » seems to translate, for Mr. Best, as ‘on my side’.

Mr. Best’s writings inform less by the quality of argument than as a descriptive account of settler fear, anger and prejudice. For example, Mr. Best fears « a de facto third order of government in Canada…in addition to the federal government and the provinces »[80] He fears that treaties must now be regarded as instruments of perpetual rights reconciliation rather than the extinguishment of Indian rights and the establishment of a sole, ultimate Crown authority.

It is important to understand Best’s reading of history, to understand his reading of Haida Nation. According to Best, the court in Haida Nation acknowledged that “Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.” From Best’s interpretation of history, « the absence of any kind of military conquest was only because Indians effectively surrendered first on all the other fronts of life…the cultural, economic and political fronts…Indians peacefully and voluntarily embraced European culture and control. Two hundred and fifty years of relatively peaceful interaction worked to achieve de facto conquest and then, with the treaties, legal and sole Crown sovereignty.[81]

So here we have what I have referred to as Best’s fabled conquest, or to use his words, « de facto conquest ». Whereas Manuel sees the treaties and S91.24 1982 as the biggest land theft in the history of the world. Best sees Haida Nation essentially the same way.

In addition, Haida Nation, in its effect, mandates the largest, unilateral, unbalanced, unregulated, uncompensated transfer of wealth and power from government and private industry into the collective hands of one particular Canadian racial group—Indians—in our history.[82]

Best sees Haida Nation as the pivot point unleashing cases that undermine economic development and Crown sovereignty which he discusses in the chapters dealing with Mikisew (2005), Caledonia (2006), Platinex (2006), Frontenac Ventures (2008), Rio Tinto (2010).

In the Rio Tinto case decided in 2010, the Supreme Court of Canada reconfirmed and even extended the principles of devolutionary power sharing between Canada’s Crowns and Canada’s Indian bands, despite the negative and harmful social and economic consequences of Haida Nation already evident to all with a will to see, as evidenced by Mikisew … and the Frontenac Ventures, Caledonia and Platinex cases [83]

In one way or another, all these cases, for Best, have given the Indian industry what he sees as an unacceptable chokehold over economic development in their territories and thus all of Canada. What is unclear is why settler society can raise money through fees and taxes in the traditional territories of Indigenous Peoples but Indigenous Peoples can not.

Danegeld, toll-gating, blackmail and extortion are all activities characteristic of pre-states and failed states. They are not characteristic of a sovereign, civilized, liberal nation-state. [84]

So why are words like « Danegeld » and « blackmail and extortion » opposed to « civilized, liberal nation-state »? Why can Indigenous Peoples not form a third order of government collecting fees and taxes given their sui generis relationship to their traditional land? Mr. Best’s oppositions and his characterizations seem to be better explained as the expression of tortured emotions and prejudices than rational accounts of the moral and legal distribution of wealth in Canada and the history which gives rise to it.

Just as Mr. Best fears a third order of governance he also fears a two-tier justice system.

We now do indeed have a two-tier civil justice system which, in land claims cases like Haida Nations, Caledonia and Frontenac Ventures…is tilted in favour of Indians.[85]

Mr. Best is similarly contemptuous of the Algonquin land claim. « This agreement…will profoundly and negatively diminish and erode Crown sovereignty over a vast swath of Eastern Ontario… » [86] He sees the Algonquin settlement as inspired by Haida Nation and a « forced march » towards a « third, aboriginal fount of constitutional sovereignty ». [87] Furthermore, « To diminish Crown sovereignty…is to attack and diminish our democracy, our very civilization itself. »[88]

When reading Mr. Best I am inclined to recall those 1950s staples of American television, the Western, with the wagon train of often quarrelling settlers making its way west until an endlessly long line of hundreds if not thousands of Indian warriors, armed and mounted, stretching along the rolling hills, appears as if from nothing, as a wave of terror sweeps through the wagon train gathering itself into a circle of fear to face the onslaught of wild savages! Such reads Mr. Best’s 700 page diatribe. For myself, my reaction as a little kid watching such American movies was, finally, the good guys have arrived!

Curiously, Mr. Best has his brief moment of self-awareness.

The scholarship in the TRC Report is totally biased, somewhat lightweight and replete with “unargued persuasion” … This is not surprising: the Commissioners, like me, were mere proselytizing, amateur academics. The lecturing, hectoring, cold, self-righteous, partisan, constant, blame and finger-pointing tone and substance of the TRC’s conclusions, all totally devoid of imaginative sympathy, are enervating and distracting, and take away from their effectiveness, perhaps to the point of being counter-productive. In fact, the Report is so partisan in nature “that it leaves the reader convinced not of his insights but of his need to hear the other side.”[89]

Unfortunately, Mr. Best shows few signs of heeding his own good advice across his 700 pages despite equating himself with « the Commissioners, like me… ». With his account of the TRC report, I can not imagine a more apt description of Mr. Best’s writing. Again Mr. Best’s efforts appear less animated by reasoned argument than fear, anger and prejudice. He seems to imagine some pending conflagration rather than good old Canadian compromise.

I think Haida Nation, Tsilhcot’in and their legal progeny, present and future, all fail on this account. They go too far. They go too much against the grain of human nature. They threaten to push the situation beyond the bounds of our collective capacity for restraint.[90]

Again he returns to his British roots as if they are the universal, collective roots of Canada itself.

We are a country of laws and law-abiding people. This is a fundamental part of our British heritage.[91]

So Best’s solution is very clear, it’s the elimination model that eliminates the Other by repealing S35 and all the case law which agrees with it. He sees this all as being consistent with defending his ancestors.

Anyone proposing to adopt new laws to end the reserve system and legally integrate Indians into all aspects of Canadian society will, strangely, be attacked as an ignorant bigot. The ad hominem attacks will come fast and furious…I felt compelled to defend my ancestors.[6]

Mr. Best apparently longs to reconnect with the wilderness partnership of the fur trade era. He seems to have forgotten that this was the period of partnership between Indians and les canadiens, not his British ancestors.

Indians and non-Indians need to become partners again, like we were in the early years of first contact, only this time, inevitably and necessarily, as citizens of Canada under the aegis of social and legal equality and ultimate Crown sovereignty.[92]

He calls upon the vision of Nelson Mandela to overcome the apartheid vision he fears for Canada.

Why is Nelson Mandela’s “one set of laws for all races” goal for apartheid-ridden, “separate but equal”-ridden South Africa, which we all lauded him for, not the right goal for Canada?[93]

It is somewhat surreal to have Nelson Mandela’s vision of a society in which the black majority gained democratic control of laws which respected the equality rights of a white minority with a society like Canada, which seeks to protect an Indigenous minority from being submerged under the assimilative equality of a settler majority. Mr. Best does not appear to appreciate the role the principle of equality has in a society where majorities attempt to dominate minorities through assimilation. As Mr. Best repeats, he speaks for a ‘majority of Canadians’ and thus he seems to imagine his beliefs represent the dominant standard for equality.

2005 Mikisew

Mikisew (2005) attempted to balance the government’s power to authorize land use with the duty to consult and accommodate when treaty rights are infringed.

the Supreme Court confirmed that, while governments have the power under treaties to authorize land uses which infringe on treaty rights, the exercise of that power imposes on governments a duty to consult where the taking up of land adversely affects those rights…[94]

The government was found to have failed to meaningfully consult the Mikisew regarding constructing a road which would adversely affect them.

The Crown was found to have failed to demonstrate an intention of substantially addressing Aboriginal concerns through a meaningful process of consultation.[95]

Not surprisingly, Best says, regarding Mikisew (2005), the court « strengthened and refined the legal and economic chokehold over the Crown and non-Indian Canadians it had previously given to Indians in the Haida Nation case. »[96]

There is no mention of Mikisew (2005) in Manuel.

For our purposes, Mikisew (2005) continues the trend line of judicial decisions which provide precedents for the exclusion-intersection models we are considering. Once again, Best’s preferred elimination model is simply not an option given it is not compatible with the duty to consult when treaty rights are infringed.

2007 UNDRIP

[UNDRIP guarantees] the rights of Indigenous peoples to enjoy and practice their cultures and customs, their religions, and their languages, and to develop and strengthen their economies and their social and political institutions. Indigenous peoples have the right to be free from discrimination, and the right to a nationality…recognizes Indigenous peoples’ right to self-determination… Article 4 affirms Indigenous peoples’ right “to autonomy or self-government in matters relating to their internal and local affairs,” and Article 5 protects their right “to maintain and strengthen their distinct political, legal, economic, social and cultural institutions.” Article 26 states that “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired,” and it directs states to give legal recognition to these territories. [97]

UNDRIP has only one mention in Best who sees it, unsurprisingly, as marking off the road to « legal chaos ».[98]

UNDRIP has over 50 mentions in Manuel and is a crucial underpinning for his idea of reconciliation. Manuel essentially agrees with all the UNDRIP provisions identified above regarding the internationally approved rights of Indigenous Peoples for autonomous political, legal, economic, social and cultural institutions, including self-determination and self-government within traditional territories.

Manuel outlines his six-point path to decolonization: 1) to denounce the racist doctrine of discovery and terra nulls as justification for settler laws and policies, 2) to pursue nation to nation negotiations recognizing Indigenous self-determination, 3) to acknowledge international human rights standards including Indigenous knowledge systems and ecological relations to land, 4) to sit down and discuss sharing based on Indigenous rights and title, 5) to develop clear jurisdictional lines of authority based on free, prior and informed consent of Indigenous Peoples, and 6) to ensure S35 complies with UNDRIP and Indigenous self-determination. [99]

In effect, Manuel is calling for what I have described in this essay as some combination of the mutual exclusion and intersection models of reconciliation. Not unlike the Two Row Wampum and Covenant Chain of the Treaty of Niagara 1764, which instituted the constitutional principles of non-interference and co-operation which enabled Canada to survive the American revolutionary war, as well as, the War of 1812, Manuel’s six points outline a similar relationship of reconciliation. The principles of non-interference and co-operation, without domination, to a certain extent are also the principles underlying the Confederation model of 1867, as noted above, based on protecting local interests, but especially the rights of les canadiens and later of « savages and French half-breeds ».

Clearly S35 and UNDRIP, taken together, underscore a very different reading of history, nationally and internationally, than the one espoused by Best and the JCPC in 1888. So to his list of villains, Mr. Best must now add the United Nations and all the Indigenous Peoples around the world who worked for and sustain UNDRIP. And, of course, Arthur Manuel who argues for just such a national-international legal-political forum for asserting Indigenous rights.

2014 Tsilhcot’in

With Tsilhcot’in (2014) the court reconsiders Aboriginal title and the duty to consult once again. The question the court addressed was

to identify how rights and interests possessed under traditional law and custom can find expression in common law terms…When Aboriginal title is established, it confers numerous rights which includes the right to control how the land is used. Government incursions onto Aboriginal title lands that are not consented to must be undertaken in accordance with the Crown’s procedural duty to consult, it must be justified, and must be consistent with the Crown’s fiduciary duty to the Aboriginal group.[100]

Aboriginal title was affirmed to depend upon the sufficiency, continuity and exclusivity of occupation.

Delgamuukw affirms a “territorial use-based approach” to establishing Aboriginal Title, where the claimant group must show its occupation possesses the following three characteristics: (i) sufficient occupation of the land claimed to establish title at the time of assertion of sovereignty, (ii) continuity of occupation (where present occupation is relief on), and (iii) exclusive historic occupation.[101]

What rights does Aboriginal title confer?

Aboriginal title confers the right to the benefits associated with the land: to use it, enjoy it and profit from its economic development. As well, it includes ownership rights similar to those with fee simple, including the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; the right to proactively use and manage the land; and, the right to control the land.[102]

This account of rights and title seems consistent with the vision of rights and title in UNDRIP. What of the duty to consult?

Before Aboriginal title is declared, the honour of the Crown requires the Crown to consult and accommodate the interests of the potential Aboriginal Title holders. Provincial laws that regulate Aboriginal title lands are constitutionally limited by s. 35 which acts as a limit on provincial jurisdiction.[103]

There are 22 mentions of Tsilhqot’in in Manuel, however, despite the long string of judicial wins it continues since 1973, Manuel is more concerned with the need for « a political deal to finally decolonize ». As he notes, the court can not exceed the limitations of its own mandate to serve the Crown as part of the Crown.[104] Tsilhqot’in needs to be used, argues Manuel, to force the government to eliminate the comprehensive land claims policy and its relentless push to extinguish rights in exchange for a few programs and services[105]. An extinguishment policy, which he notes, has been denounced by the UN for forty years.[106]

Indian Act chiefs represent a local delegated Indian authority within reserve territories under the Canadian legal system. Hereditary chiefs are not so restricted, Manuel notes, however they have been seriously damaged by the Indian Act system.[107] Nevertheless Manuel looks to the grassroots communities who are the ultimate title holders and need to become actively involved in decision-making.

Failing a robust hereditary chief system, it is up to the people themselves to make decisions collectively in large public meetings that are based not on the band, but on the nation. Because finally, it is the grassroots people who are collectively the indisputable title holders of our national territories.[108]

Manuel in part agrees with Best regarding the tactic of using resource development uncertainty as a bargaining chip to bring the government to the table.

As we assert our rights, more and more investors will pull out because of the uncertainty about resource development. If we continue to insist on asserting our rights, the only solution for the government will be at long last to begin good faith negotiations with us…[109]

Manuel sees « good faith negotiations » as leading to the partnership which was first exemplified during the fur trade era mutual respect and self-determination.

…that do not begin with us surrendering our title, but have a goal of sharing this land in a way that ensures that we and Mother Earth, which we all depend on, are protected in perpetuity. We must have back not only what we need to survive, but to prosper under a system built not on domination but on mutual self-determination and respect.[110]

Curiously, as noted, Best has made similar remarks about the fur trade era of « wilderness partnerships ». However, his overall position is not the partnership Manuel is calling for. And certainly, Best does not envision a partnership involving the organization of governance. In fact, a partnership of governance is precisely what Best fears.

We now have in substance and to a significant degree, in treaty areas of Canada, and—with Tsilhcot’in…and even more so in non-treaty areas like British Columbia—a tri-power federal system rather than our former purely dual power system.[111]

And here is Best, no longer recalling longingly those « wilderness partnerships » of the French and Indian era of co-existence.

In effect, the early historical era of collaboration and shared control, which ended in the 1800s and which since then all Canadians assumed was over, is not over after all. This is partly because, according to the court in Haida Nation, “Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.”[112]

Again Best returns to the fabled peaceful conquest.

…Indians peacefully and voluntarily embraced European culture and control. [113]

Apparently not. As noted the history of confederated colonies, the history of Indigenous-brought court cases, the history of interpreting treaties from the Indigenous side, all would seem to suggest that the idea that European culture and control was « voluntarily embraced » suggests a one-sided vision of the Other.

Best returns to his, perhaps equally fabled, majority of Canadians.

…our elites are at odds with the vast majority of Canadians who…fear and disagree with the handing back of state power to small, decentralized, scattered, undisciplined, poorly governed, self-seeking, technically illiterate Indian bands.[114]

It appears the expression « majority of Canadians » is a trope and not an empirical statement of fact, for Mr. Best. He goes on to embrace the state as the protector of rights, of individuals, of the environment, of economic development, indeed of democracy and civilization.

in the final analysis, it is only the state, represented in Canada by our Crowns, that can protect the rights and integrity of the individual; that can protect our environment; that can be the overseer and best promoter of our economic development; that can best act as a counterbalance to multi-national corporations; that can protect our vulnerable citizenry, personal and corporate; that can best protect the national welfare generally! [115]

Curiously, Best accepts « our Crowns » being plural. What he can not seem to accept is that that plural might include the Indians.

…Canada itself might not even exist today if Haida Nation and Tsilhcot’in had represented the state of the law in the early decades of our national existence! Nothing could have gotten built! No railways, highways, dams, airports—nothing.[116]

Again what is the evidence for such claims? I can see only one piece of evidence, Mr. Best’s state of mind. The plural Crowns, the accommodation of les canadiens, of ‘savages and French half-breeds’ did not prevent all those projects. So why so much fear and anger over the possibility of a third layer of governance massaged into the Canadian constitutional order?

…the quite radical constitutional and political theory behind Haida Nation and Tsilhcot’in, i.e., that there can be three founts of constitutional sovereignty in Canada—two Crown and one aboriginal—and that this is somehow a reasonable, workable and fiscally sound political idea and in the public interest of Canada, all of which it is plainly not! [117]

It is a bit bewildering to behold the singular rage that appears to animate Mr. Best when he contemplates the pluralism of the Canadian Crowns accommodating Indians.

That’s why Haida Nation and Tsilhcot’in and their legal kin are so wrong and unhealthy for our country—they constitute an attack on the autonomous and legitimate authority of our Canadian state, an attack on the state’s taxation base, and an attack on the rule of law, which only a strong and healthy state can maintain in any form or civilized manner.[118]

It’s all a relentless series of attacks. Just like that wagon train wrapped in its circle of terror.

…with the Tsilhcot’in decision, there will be claimed and sometimes declared, even more harmfully, larger purely race-based, essentially private, mentally very gated, quasi-independent physical spaces—race-based, Indians only fiefdoms.[119]

« Indians only fiefdoms »? Who came up with that idea? The answer of course would be Mr. Best’s British ancestors as part of the last 200 years of colonialism in Canada. In response, Mr. Best fears or hopes for (it is in fact difficult to tell which) a conflagration unleashed by breaking the « collective capacity for restraint » of what he says is « human nature » but sounds more like the fear and rage of Mr. Best’s barely unconscious appetites.

I think Haida Nation, Tsilhcot’in and their legal progeny, present and future, all fail on this account. They go too far. They go too much against the grain of human nature. They threaten to push the situation beyond the bounds of our collective capacity for restraint.[120]

Mr. Best seems to have fantasized a final fabled conquest where the American cavalry rides to the rescue of the flaming wagon train, he and his British ancestors are riding, just as the mob of wild savages and screeching vultures are about to devour their prey.

2018 Mikisew

With Mikisew (2018) we have what may be construed as an assault, channelling Mr. Best, on the final redoubt of the Crowns in Canada, the legislatures, through the legal requirement of the duty to consult and the honour of the Crown deriving from the fiduciary relationship grounded in the treaty relationship.

In a considerably divided 7–2 majority, the Supreme Court of Canada ruled that the duty to consult Indigenous peoples does not apply to the law-making process…Mikisew Cree Nation had sought judicial review on the issue of whether Parliament was required by the honour of the Crown to consult with Indigenous peoples on legislation that may affect section 35 Aboriginal and Treaty rights. [121]

The rationale for this decision was the constitutional principles of the separation of powers and parliamentary sovereignty. Nevertheless despite not requiring such a duty, the court encouraged such consultations.

The Court was nevertheless unanimous in encouraging the Crown to consult Indigenous groups, as a matter of policy, when developing legislation that may adversely affect their rights.[122]

In effect, this decision is in keeping with Manuel’s remarks about Tsilhcot’in (2014) where he argued that the courts are not the final tool of decolonization and thus economic uncertainty was a necessary lever to force colonial governments to the political and constitutional negotiation tables. What Best describes as Danegeld, chokeholds, etc. The court in Mikisew (2008) simply claimed the legislatures were, in effect, ultra vires the courts.

Imposing the duty to consult would trespass into the legislatures’ domain, would constrain the legislatures’ activities and undermine their ability to act as a voice for the electorate, and would be an inappropriate constraint on the legislatures’ ability to control their own process. The fracturing of the Court, one commentator notes, makes a clear assessment of this decision challenging.[123]

Manual does not mention Miksew (2018). Best is aware of the case, launched in 2012, but not of the final decision, as such he simply warily anticipates its outcome.

This case has been appealed to the Supreme Court of Canada, and if the trial decision is restored it will be binding in all legislatures, federal and provincial, thus delaying and making more expensive and uncertain the law-making process….Stay tuned.[124]

Mikisew (2018) by challenging the legislatures in Canada to consult Indigenous Peoples as part of the legislative process is in essence drawing the colonial legislative process back to the treaty table. Thus, Mikisew (2018) challenges 91.24 and the unilateral legislative authority it presumed in creating the Indian Act, the reserve system, and the entire edifice of colonialism without properly engaging Indigenous Peoples through their negotiators. Thus, I would argue, the relevant precedents Mikisew (2018) is drawing us back to are the Great Peace of Montreal 1701 and the Treaty of Niagara 1764.

This, of course, is not the history and law Mr. Best’s elimination model prescribes. It is some variation of the exclusion and intersection models we have been considering for this essay. The recognition of the autonomy and self-determination Manuel has argued for.

Conclusion

In conclusion, I will simply try to draw together some of the threads outlined thus far.

Regarding the three models of reconciliation where reconciliation is understood in general terms to refer to restoring friendly relations and making beliefs compatible, it seems clear that the elimination model favoured by Best is simply untenable given Canadian history and current conditions. It flies in the face of the historical relationships founded in treaties, the confederated nature of the plural Crowns, and the current legal position that title is also plural in Canada based upon the need to reconcile prior occupancy with the Crown assertion of sovereignty.

Thus we are left with the historical models of exclusion and intersection, the principles of non-interference and co-operation of the Two Row Wampum and the Covenant Chain which served Canadian autonomy through the most dramatic external threats to its existence, the American revolutionary wars and the War of 1812.

The various court cases we have considered, after Calder (1973) to Mikisew (2018), serve as attempts to fill the void left by the S37 1982 constitutional conferences based upon S35. How can the plural Crowns accommodate Indigenous Peoples. It appears that reconciliation remains an ongoing legal, political, economic and social process working itself out as some combination of exclusion and intersection, autonomy and partnership. This complex web continues to unfold across various institutions and jurisdictions like wilderness partnerships forged out of co-existence in the fur trade era.

The pluralism and confederated nature of Canadian governance is not likely to dissolve, any time soon, into a unitary state of affairs. Indigenous Peoples and Quebecers are not sufficiently swamped with contrarian immigrant settler populations to likely let go of the political and legal, economic and cultural levers history has provided.

I would argue that Mikisew (2018) is an indication of why we need treaty courts and not colonial courts to oversee colonial legislatures in their constitutional relationships with Indigenous Peoples. The treaty is the political expression of the foundational political relationship between colonial governments and Indigenous Peoples. Treaties are the very expression of the effort to reconcile prior occupancy with Crown sovereignty. This is what the Great Peace of Montreal 1701 with the French and the Treaty of Niagara with the British were all about. What Manuel would refer to as the nation to nation relationship.

The problem which Mikisew (2018) brilliantly exposes is the conflict, in need of reconciliation, between the duty to consult as ultimately an expression of the treaty relationship between the Crown(s) and Indigenous Peoples and the presumed unilateral authority of colonial legislatures over Indigenous Peoples. In other words, the conflict between S91.24 1867 and S35 1982. A colonial court which sees itself as a creature of the Constitution Act 1867 can only adjudicate products of the unilateral colonial legislature, not the legislative process itself. The legislature is its own authority rooted in the electorate. To adjudicate such legislative unilateralism, we need a court which is not a creature of such colonial unilateralism, but a court which is a creature of treaty law itself.

However, as Mikisew (2018) provocatively demonstrates, colonial legislative unilateralism, I.e., S91.24, should be arguable as in violation of the constitutional relationship between the Crown(s) and Indigenous Peoples, the nation to nation, treaty relationship. A treaty court which sees its existence rooted in the bi-lateral treaty relationship itself could adjudicate any unilateral act by a treaty partner which presumes to act outside the authority which the treaty has created. Such a treaty court would be similar to the conflict or dispute resolution mechanisms associated with international trade agreements. As creatures of the agreement itself, such tribunals could evaluate actions which violate those agreements. The colonial court does not see itself as a creature of treaty agreements but as a creature of a unilateral colonial creation, the Constitution Act 1867.

In other words, the ultimate foundation for law in Canada is not the exclusive British-Canadian Crown sovereignty of Peter Best’s British ancestors. Rather the ultimate foundation for law in Canada is the treaty relationship. Not univocal acts of a solitary Crown, but agreements that flow from the parties to such agreements. The judicial creations that so horrify Mr. Best, the honour of the Crown, the fiduciary duty, the duty to consult, all flow from the interpretation of the treaty relationship whereby the Crown assumes responsibilities on behalf of Indigenous Peoples through the political signatories of Indigenous Peoples.

With the legal history from 1888 to 2018, it is as if the colonial court is trying to recreate a founding event prior to its own birth from an act of memory it does not have, from a precedent which is ultra vires its own experience. This, I see, is the problem of the story of the unilateralism of the solipsistic Crown. What I would call the ‘masturbating monarch’ that gives birth to legal realities. How else to interpret the notion that all legal realities ultimately flow from ‘the pleasure of the Crown’ who arousing itself to a level of clarity realizes a ‘clear and plain intent’ and thus gives birth to legal realities and extinguishes the legal realities of others, as the JCPC, Mr. Best and his British ancestors envisioned it. This is the idea and the oath of allegiance which the settler society and their colonial courts brought with them from the other side of an ocean. This is the fabled conquest which gives birth to their idea of society. This is their source of colonial law. God almighty, through proclamation and declaration, creates. It is this idea which appears to underwrite the idea that, with papal blessing, Cartier and Cabot can arrive, plant their crosses and flags, and claim the lands where other people live and have lived for hundreds if not thousands of years, belong to their monarch. Not through conquest, not through negotiation, but simply by a unilateral act, as Manuel has described it, a magical act of asserting sovereignty.

By contrast, Indigenous law, I would argue, flows from the forest itself, the ecosystem of creation, the habitat of differences and relations, and from the agreements of its creatures, the treaties they form amongst themselves. It is this notion of law that the JCPC, Mr. Best and his British ancestors seem to simply not fathom. The ‘wilderness partnerships’ which give birth to laws forged in agreements based upon principles of non-interference and co-operation in the thriving ecosystem of difference and exchange. It is the creatures of the forest in council who give birth to laws through mutual acts of agreement in the storied land of Nanabozho.

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Bibliography

Best, Peter. There Is No Difference: An Argument for the Abolition of the Indian Reserve System and Special Race-Based Laws and Entitlements for Canada’s Indians. Tellwell Talent, 2018.

Elliott, David W. Law and Aboriginal Peoples in Canada. 5th ed. Canadian Legal Studies Series. North York, ON: Captus Press, 2005.

Manuel, Arthur, and Ronald M. Derrickson. The Reconciliation Manifesto: Recovering the Land, Rebuilding the Economy. Toronto: James Lorimer and Company Ltd., Publishers, 2017.