Tsilhqot'in, Aboriginal Title, Aboriginal and Treaty Rights, British Columbia, Reconciliation, Critique, Honour of the Crown
In the text that follows, I start by explaining how Canada's behaviour in the Tsilhqot'in litigation undercuts, rather than fosters, the potential for a relationship of trust, which is foundational for reconciliation. In particular, I argue that Canada's behaviour suggests federal disregard for the state roles and responsibilities that the Supreme Court of Canada has found are mandated by the recognition and affirmation of Aboriginal and treaty rights in section 35 of the Constitution Act, 1982. I then focus on the judgment of the Court of Appeal. As discussed below, the Court of Appeal upheld the trial judge's decision, but offered different reasons in support of its conclusions. After identifying how some aspects of the decision of the British Columbia Court of Appeal align with the Supreme Court of Canada jurisprudence on section 35 and reconciliation, I then consider other aspects that illustrate an increasingly impoverished judicial interpretation of how reconciliation may articulate with Aboriginal title, where it appears that reconciliation is being cast as requiring a pre-emptive diminution of Aboriginal-title rights. The Court of Appeal also suggests a role for the courts that may be overreaching. Through this analysis, I show why the Court of Appeal's proposed jurisprudential shifts have the potential to undermine any faith that Indigenous peoples may have in the judiciary enabling an honourable reconciliation between the Crown's de facto sovereignty and their rights. These conclusions, coupled with Canada's behaviour, paint a stark picture.
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Constance MacIntosh, "Tsilhqot'in Nation v. BC: Reconfiguring Aboriginal Title in the Name of Reconciliation" (2014) 47:1 UBC L Rev 1.