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The Beckman compact: A bridge between the Secession Reference and reconciliation

In an earlier post, I linked the Supreme Court of Canada’s Reference re Secession of Quebec to the recently released Truth and Reconciliation Commission report, arguing that the Court will inevitably be called upon to reframe Canada’s constitutional structure in a way that better reconciles the rights and interests of Aboriginal Canadians with those of the Crown and other Canadian communities.

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When this happens, I suggested, the Court may find inspiration in the Reference. Since then, I have had the chance to revisit Beckman v Little Salmon/Carmacks First Nation, in which the minority judgment drew a similar line between the Reference and the proper constitutional place of Canada’s Aboriginal peoples.

The reasons of Justice Deschamps, writing for herself and Justice LeBel, may help in bridging the Reference to the TRC, in future negotiations and litigation.

Beckman is generally cited for Justice Binnie’s majority judgment view that the Crown’s duty to consult exists in addition to, and independent of, the provisions of the modern treaty. In his words: “Consultation can be shaped by agreement of the parties, but the Crown cannot contract out of its duty of honourable dealing with Aboriginal people.”

Although Deschamps agreed with Binnie that, on the facts, the Crown had not breached its duty to consult, she gave different reasons. Based on Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), she held “that the common law constitutional duty to consult Aboriginal peoples applies to the parties to a treaty only if they have said nothing about consultation” in the relevant context.

Three other elements of the minority judgment stand out as potentially having broader impact in a post-TRC landscape.

First is the willingness to re-examine the four organizing principles of the Constitution that the Court crafted in the Reference. To refresh, these were: “(1) constitutionalism and the rule of law; (2) democracy; (3) respect for minority rights; and (4) federalism.”

I argued previously that the Court’s view of Canada in the Reference was a binary one, as a federation with two levels of government – leaving little to no room for Aboriginal self-government or indigenous legal systems. But Deschamps went beyond the four principles to discuss three constitutional “compacts,” including a compact “between the non-Aboriginal population and Aboriginal peoples with respect to Aboriginal rights and treaties with Aboriginal peoples”:

[97] In Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 48‑82, this Court identified four principles that underlie the whole of our constitution and of its evolution:  (1) constitutionalism and the rule of law; (2) democracy; (3) respect for minority rights; and (4) federalism.  These four organizing principles are interwoven in three basic compacts:  (1) one between the Crown and individuals with respect to the individual’s fundamental rights and freedoms; (2) one between the non-Aboriginal population and Aboriginal peoples with respect to Aboriginal rights and treaties with Aboriginal peoples; and (3) a “federal compact” between the provinces.  The compact that is of particular interest in the instant case is the second one, which, as we will see, actually incorporates a fifth principle underlying our Constitution:  the honour of the Crown.

It is here that a constitutional bridge may be built between the Reference’s outdated conception of Canada, and the calls to action in the TRC report for a refreshed vision that “reaffirms the nation-to-nation relationship between Aboriginal peoples and the Crown.”

The second point is the minority’s acknowledgment of the potentially “paternalistic” assumptions embedded in much of our jurisprudence on “Aboriginal law” (which, as the SCC sees it, does not refer to laws adopted and enforced by indigenous communities, but to the constitutional and common law that applies to all Canadians).

As Deschamps pointed out, the constitutional principle of the honour of the Crown was meant to stand in for the fiduciary duty concept, with all its “paternalistic overtones.” But she went on to note that, “Before being raised to the status of a constitutional principle, the honour of the Crown was originally referred to as the ‘sanctity’ of the ‘word of the white man.’” That’s an uncomfortable foundation, to say the least.

This didn’t stop the minority from referring to and relying on the principle throughout its reasons, but it’s an important reminder to question the assumptions underlying an area of law that is very much in flux and ripe for reassessment.

Third, the minority also reiterated that treaty interpretation should not depend on when the treaty was concluded. This approach rejects, for example, the notion that a modern land claims agreement deserves more deference than a Peace and Friendship treaty. Of course, not all treaties are created equally, but they must all be given meaningful effect to best achieve the intentions of the negotiating partners. This analysis is expected to be valuable as attempts are made to “breathe life” into, and perhaps revisit or build on, some of Canada’s more historic treaties.

Beckman’s minority reasoning is but one example of the statement from the Secession Reference that the “Constitution is not a straitjacket.” Combined with more recent cases like Tsilhqot’in Nation v British Columbia, it shows that bridges can be built from the Court’s previous jurisprudence to a better way of confirming the equal place of Aboriginal peoples in the Canadian constitutional framework.