Rene Dussault


On 11 June 2008, ten years after the Statement of Reconciliation1 was issued, paving the way to a series of measures intended to right the wrongs of the past in relation to Aboriginal peoples in Canada under the residential school policy, a policy clearly aimed at assimilation, the Government of Canada finally presented an official apology.2 In the formal setting of the House of Commons in the presence of representatives of all Aboriginal peoples of Canada and with the support of the opposition political parties, the apology and accompanying request for pardon can constitute, depending on the related follow-up action, a true turning point in Canada’s relationship with Aboriginal peoples. Two factors seem to support this hope. First, the apology crowns a series of concrete steps already undertaken to reduce the repercussions of this erroneous policy, a policy aimed at alienating children from their families and separating them from their traditional culture, which leads us to believe that the apology is sincere. Second, to the extent that the apology can be seen as an undeniable expression of a profound change that will enable trust to be rebuilt, it can become a fundamental element, key to the potential success of the work undertaken by the Truth and Reconciliation Commission established in its wake. In order to succeed and thereby mark a turning point in the relationship, reconciliation first requires that trust be rebuilt.

There is no magical formula for resurrecting this trust. It nonetheless seems that the sought-after healing, especially in this case when it has a profound intercultural significance, starts with sincere apologies that recognize past injustices, signalling an authentic desire to right them and showing that a long-lasting commitment has been made. As worthy as they are, such apologies are not sufficient. They must be accompanied by a solid action plan that cannot otherwise limit itself to the single issue of residential schools. Regarding this, I recall that the report of the Royal Commission on Aboriginal Peoples (RCAP) proposed a detailed 20-year strategy to restore the social, economic, and political health of Aboriginal peoples and redefine their relationship with the rest of Canada. Still to this day a source of inspiration for change, this strategy included a dual pathway, namely an immediate, sustained effort aimed at restoring the health and capacity to act of individuals, families, groups, and nations and the gradual establishment of a new balance of political powers and economic resources.

According to the RCAP Commissioners, Canada had to commit itself to reducing by half the gap in social and economic conditions between Aboriginal and non-Aboriginal peoples within 20 years of the publication of the report.3 They emphasized that Canada could no longer permit itself to maintain the current regime of dependency, of lost productivity and ever-increasing social expenses. Estimated at just over $13 billion in 1996, the amount spent by governments on Aboriginal peoples had to increase to over $17 billion annually by 2016, based solely on demographic growth.4 In view of such a perspective, rooted in the unstable foundations of the relationship established between Aboriginal and non-Aboriginal people, a result of the uprooting and assimilation actions of our common history, the RCAP Commissioners pointed out that Canada could “no longer afford merely to ‘manage’ the continuing crisis in the relationship by mediating potential areas of conflict while leaving unaltered the foundation on which that conflict inevitably arises.”5

Where does it stand today? Twelve years after the publication of the RCAP report, it remains just as urgent that Canada re-examine the very foundations of its relationship with Aboriginal peoples. The existence of conflicts created by this deficient relationship is undoubtedly not conducive to establishing the climate of trust needed to accomplish such an endeavour. Yet, this climate of trust is necessary to reviving a desire to build bridges among the partners that would enable them to move beyond prejudices to a common vision and to achieve a genuine reconciliation. To the extent that reconciliation appears to be the only reasonable way forward, every effort must be made, further to the official apology presented by the Government of Canada, to find grounds for agreement upon which a shared future can be built.

The success of this endeavour relies on our reciprocal capacity to give meaning to the fundamental, long-lasting relationship established by formal agreements between Canada and Aboriginal peoples, a meaning that respects not only the spirit of the agreements, but also provides for consideration of today’s realities. In other words, in order to succeed, the partners have to envision the desired reconciliation, not only in terms of interdependence, but also of convergence and open-mindedness. This requires that they attach a lot of significance on a daily basis to everything that can foster constructive management of the relationship. For example, governments should assure themselves that there is a good degree of coherence between the positions they adopt in the statements of principle and arguments they present before the courts. Governments should also ensure that the changes they propose to make to social and economic policies represent the beginning of an authentic development of Aboriginal and regional reforms that can be seen and understood by all parties as being beneficial to all. For their part, Aboriginal leaders should clearly state, in the likelihood of an agreement, how they would like to implement the change and the extent of the effort they are prepared to devote to this task.

After some 500 years of a relationship that has moved from mutual respect and cooperation to one of paternalism and assimilation, it is in the interest of all Canadians for the federal and provincial governments and Aboriginal peoples finally to agree on the foundations of a fair and enduring coexistence. One of the most sensitive aspects of this endeavour, currently underway, concerns the conciliation of Aboriginal and treaty rights and Canadian sovereignty shared by the federal and provincial governments. It is, therefore, not surprising that in its 15 May 2000 issue, Time Canada, in “Getting Angry over Native Rights,” described this endeavour as “the most sweeping social adjustment in Canada’s history.”6 This conciliation, supported simultaneously by agreements between the parties and judicial decisions, raises a number of new and untested legal questions in terms of government function as well as land and resources. I would like to mention a few that I think the justice community should examine.

Government Function

  • As part of the current sharing of legislative jurisdictions, how can we make room for Aboriginal norms? Can the federal and provincial governments give up exercising their power in favour of Aboriginal governments as well as free up some of their current areas of jurisdiction?
  • In the context of Aboriginal self-government, how and to what extent do we acknowledge their ability to implement community justice systems?
  • How do we allow for non-Aboriginal people’s participation in the decision-making process of Aboriginal governments vested with territorial jurisdiction?
  • On the very real assumption that a constitutional right to self-governmental exists, does this right, like the right to self-determination, belong to the Aboriginal nations or to each of their respective bands?



    Land and Resources

  • How do we conciliate Aboriginal title and the interests of all Canadians?
  • Does Aboriginal title belong to the Aboriginal nations or to each of their respective bands?
  • What happens when several Aboriginal nations lay historical claim to the same territory?
  • In resolving territorial claims, how can we achieve goals of clarity and certainty without resorting to an extinguishment of rights clause?

    In view of the real difficulties posed by these questions, some could be tempted to give up and conclude that conciliating rights is an impossible mission. It is therefore very important for the legal community and all Aboriginal and non-Aboriginal partners to address this endeavour in the spirit of seeking solutions, rather than submitting to failure. In my opinion, what is at stake is Canada’s image as a respected member of the global community.

     


    Biography

    Rene Dussault has led a distinguished legal career for some 45?years as a public administrator and lawyer. He obtained his doctorate from the London School of Economics and Political Science at the University of London in the United Kingdom. His areas of expertise in law include Aboriginal, administration and constitutional, regulatory and public, appellate litigation and judicial review, and human rights. René served as counsel to the Research Committee on Health Insurance, to the Federal-Provincial Affairs Department, and to the Québec Commission of Inquiry on Health and Social Welfare. He held several senior positions in the Québec provincial public service, including founding president of the Professions Board and Deputy Minister of Justice. In 1989, René was appointed to the bench and has served for nearly 20 years as Justice of the Court of Appeal of Québec. He was also co-chair of the Royal Commission on Aboriginal Peoples in Canada. René has also been actively involved in legal education. He was past director of the Graduate Studies Program and lectured at the Université Laval Faculty of Law. He was a professor at the École nationale d’administration publique and the first incumbent of the Bora Laskin Chair in Public Law at Osgoode Hall Law School. René now serves as counsel at Heenan Blaikie Aubut, a law firm in Québec.

    René served as Associate Editor of the Canadian Public Administration journal and wrote and co-authored numerous articles and books, including the seminal Traité de droit administratif, subsequently translated into Administrative Law: A Treatise, which received the Walter Owen Award from the Canadian Bar Association’s Foundation for Legal Research and the prix du Concours juridique from the Québec Bar Foundation in 1988.

    René has been recognized throughout Canada for his achievements in the area of public administration and for his outstanding contributions to the advancement of law, the legal profession, and the promotion of equality. Among others, he was awarded the Québec Bar Medal, the Vanier Medal of the Institute of Public Administration of Canada, and the Touchstone Award of the Canadian Bar Association; was appointed Fellow of the Royal Society of Canada; and granted honorary Doctor of Laws degrees from York University and Dalhousie University.


    Notes
    1. Indian and Northern Affairs Canada (1998). Statement of Reconciliation (see Appendix 1). Retrieved 23 January 2008 from: http://www.ainc-inac.ca/gs/rec_e.html
    2. See Appendix 2.
    3. Royal Commission on Aboriginal Peoples (1996). Report of the Royal Commission on Aboriginal Peoples. Volume 5: Renewal: A Twenty-Year Commitment. Ottawa, ON: Minister of Supply and Services Canada.
    4. RCAP (1996) Volume 5.
    5. Royal Commission on Aboriginal Peoples (1996:603). Report of the Royal Commission on Aboriginal Peoples. Volume 1: Looking Forward, Looking Back. Ottawa, ON: Minister of Supply and Services Canada.
    6. Time Canada (2000:16). Getting Angry Over Native Rights. Time Canada 155(20):16–24.