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Published online by Cambridge University Press: 01 January 2025
Canada's constitutional distribution of authority between the provinces and federal government leaves no room for Indigenous self-government, but there are increasingly vocal calls for change. Whether Indigenous peoples are acknowledged as one of Canada's founding nations alongside its English and French settlers, or are recognized as distinctive peoples within its multicultural society, these calls affirm Indigenous peoples as sovereign nations deserving of at least some of the powers that the provinces have. The Constitution Act 1982 provides a different mechanism of legal protection for Indigenous peoples, recognizing and affirming already existing Indigenous rights. Canada's Indigenous rights jurisprudence, however, pulls against the sovereignty that underlies federalism. The courts have understood Indigenous rights such that accessing their protections denies to Indigenous peoples the autonomy to define themselves as member nations of Canada's multicultural society. As a normative point, this paper argues that we should embrace constitutional Indigenous rights as a vehicle for Indigenous sovereignty, because it brings federalism and Indigenous rights together as a theoretically coherent foundation for Indigenous self-government in Canada. As a descriptive point, the paper argues that the jurisprudence itself already contains the resources to support a sovereignty-affirming reading of the Constitution's Indigenous rights provisions.
I am grateful to Douglas Sanderson, Wade Wright, the editors of this special issue and the Federal Law Review's two anonymous reviewers for comments, suggestions and feedback on previous versions of this paper.
1 Canada, House of Commons Debates, 42nd Parl, 1st Sess, No 264 (14 Feb 2018) at 1550 (Justin Trudeau, Prime Minister).
2 See, eg, Yukon First Nations Self-Government Act, SC 1994, c 35; Mackenzie Valley Resource Management Act, SC 1998, c 25; Nisga’a Final Agreement Act, SBC 1999, c 2; Métis Settlements Act, SA 1990, c M–14.3.
3 Indian Act, RSC 1985, c I-5, ss 81–6.
4 Macklem, Patrick, Indigenous Difference and the Constitution of Canada (University of Toronto Press, 2001)CrossRefGoogle Scholar 107.
5 Cf Borrows, John, ‘Constitutional Law from a First Nation Perspective: Self-government and the Royal Proclamation’ (1994) 28 UBC Law Review 1Google Scholar, 5 (arguing that self-government for Indigenous peoples is already ‘an integrated part of the current fabric of the Canadian constitution’ and requires no constitutional amendment); Patrick Macklem, ‘Indigenous Peoples and the Ethos of Legal Pluralism in Canada’ in Patrick Macklem and Douglas Sanderson (eds), From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (University of Toronto Press, 2016) 17 (arguing that the ethos of legal pluralism requires constitutional recognition of Indigenous governments sovereign within defined spheres of authority, with exclusive and concurrent legislative authority formally equivalent to federal and provincial legislatures).
6 On options for statutory reform in general, see John Borrows, ‘Legislation and Indigenous self-determination in Canada and the United States’ in Patrick Macklem and Douglas Sanderson (eds) From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (University of Toronto Press, 2016) 475, and Douglas Sanderson, ‘Overlapping Consensus, Legislative Reform and the Indian Act’, in Patrick Macklem and Douglas Sanderson (eds), From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (University of Toronto Press, 2016) 320 (arguing for the reform but not the repeal of the Indian Act). One question that has arisen is whether implementing the United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007) (‘UNDRIP’) in Canada requires the replacement or amendment of legislation inconsistent with the Declaration, including the Indian Act. Government officials have remarked that simply repealing this body of law would leave an unacceptable legal vacuum (Minister of Justice and Attorney-General of Canada, Jody Wilson-Raybould, (Speech delivered at Niagara Falls, 12 July 2016); Laura Kane, ‘Jody Wilson-Raybould Lays Out Vision for UN Indigenous Rights Declaration,’ CBC News, 7 September 2016. In May 2018, however, the House of Commons passed a private members bill that would require harmony between Canadian law and the provisions of UNDRIP (Bill C–262: An Act to Ensure that the Laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, 1st Sess, 42nd Parl, 2018). As of July 2018, the Bill is before the Senate.
7 A particular version of this argument advocates for a form of ‘treaty federalism’, in terms of which the constitutional allocation of powers to the federal and provincial governments is read subject to the terms of the hundreds of treaties concluded between Indigenous peoples and settlers. See, eg, Robe, Andrew Bear, ‘Treaty Federalism’ (1992) 4 Constitutional Forum 6Google Scholar; James (sákéj) Henderson, Youngblood, ‘Empowering Treaty Federalism’ (1994) 58 Saskatchewan Law Review 241Google Scholar; Macklem, Patrick, ‘Normative Dimensions of an Aboriginal Right of Self-Government’ (1995) 21 Queen's Law Journal 173Google Scholar, 191–7; Russel Lawrence Barsh and James (sákéj) Henderson, Youngblood, The Road: Indian Tribes and Political Liberty (University of California Press, 1980)Google Scholar 270–87. Jean Leclair offers a slightly refined version of this idea called ‘federal constitutionalism’: see Leclair, Jean, ‘Federal Constitutionalism and Aboriginal Difference’ (2006) 31 Queen's Law Journal 521Google Scholar; ‘Socrates, Odysseus and Federalism’ (2013) 18 Review of Constitutional Studies 1. And although not directly concerned with treaty federalism, at least the British Columbia Supreme Court has taken the view that the distribution of powers in ss 91 and 92 of the Constitution Act 1867 is not necessarily exhaustive or complete: Campbell at al v Attorney General, British Columbia et al (2000) 189 DLR (4th) 333 (British Columbia Supreme Court), [71]–[82]. In Sga’nism Sim’augit (Chief Mountain) v Canada (Attorney General) (2013) BCCA, [53]–[60], the British Columbia Court of Appeal neither agreed nor disagreed with this conclusion.
8 See, eg, R v Pamajewon [1996] 2 SCR 821 (‘Pamajewon’).
9 See R v Sioui [1990] 1 SCR 1025, 1052–3.
10 The test for establishing Indigenous rights is set out in R v Van der Peet [1996] 2 SCR 507 (‘Van der Peet’).
11 R v Sappier; R v Gray [2006] 2 SCR 686, 712–14 [45]–[46] (‘R v Sappier’).
12 I rely here on the argument I make at greater length in Stacey, Richard, ‘Honour in Sovereignty: Can Crown Consultation with Indigenous peoples Erase Canada's Sovereignty Deficit?’ (2018) 68 University of Toronto Law Journal 405CrossRefGoogle Scholar.
13 On legal pluralism as an element of Canadian federalism, see Edward McWhinney, ‘The New, Pluralistic Federalism in Canada’ (1967) 2 La Revue juridique Thémis de l’Université de Montréal 139; Richard, John D, ‘Federalism in Canada’ (2005) 44 Duquesne Law Review 5Google Scholar; LaSelva, Samuel V, ‘Federalism, Pluralism, and Constitutional Faith: Canada in Question’ (2002) 7 Review of Constitutional Studies 204Google Scholar. On legal pluralism in general, see de Sousa Santos, Boaventura, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (Butterworths LexisNexis, 2nd ed, 2002)Google Scholar.
14 Sir John MacDonald, Canada's first Prime Minister and the face on the Canadian $10 banknote, firmly believed that the nation must transcend any group, class or subnational division that makes up the nation (Creighton, Donald, Towards the Discovery of Canada: Selected Essays (Macmillan of Canada, 1972)Google Scholar, 217). Right until the moment of confederation, he argued that a unitary state would preferable to a federal one (Canada, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Hunter Rose, 1865) 33). MacDonald in particular was concerned that a unitary Canada would provide the best deterrent to an expansionist United States while also deriding US federalism as a primary cause of the American Civil War (LaSelva, above n 13, 206). The Atlantic colonies of Prince Edward Island and Newfoundland for their part did not believe that federalism would allow them to preserve their cultural distinctiveness, and indeed did not join the confederation until 1873 and 1949, respectively (Richard, above n 13, 10).
15 Allan C Cairns describes confederation as a mechanism of managing conflict in a multi-ethnic society by separating French and English into the two provinces and minimizing ethnic competition between the two groups (Cairns, Alan, Charter versus Federalism: The Dilemmas of Constitutional Reform (McGill-Queen's University Press, 1992)CrossRefGoogle Scholar 35).
16 Sections 92(8), (13) and (16) confer exclusive legislative jurisdiction on the provinces in respect of ‘municipal institutions’, ‘property and civil rights’, and ‘generally all matters of a merely local or private nature in the province’. Section 93 provides that each provincial legislature ‘may exclusively make Laws in relation to Education’ subject to a handful of restrictions set out in s 93(1)–(4). Section 93A, however, provides that paras (1)–(4) of s 93A do not apply to Quebec.
17 Statistics Canada, 2016 Census of Population, <https://www12.statcan.gc.ca/census-recensement/index-eng.cfm?MM=1>. In New Brunswick, Canada's only officially bilingual province, 65.4 per cent identify as mother-tongue English speakers, 32.4 per cent as mother-tongue French speakers.
18 Reference Re Secession of Quebec [1998] 2 SCR 217, 244–5 [43].
19 Jean Leclair, ‘Forging a True Federal Spirit: Refuting the Myth of Quebec's “Radical Difference”’, in André Pratte, Reconquering Canada: Quebec Federalists Speak up for Change (Douglas & Macintyre, 2008) 29, 33.
20 In 2018 Ontarians elected the centre-right Progressive Conservative party after 14 years of Liberal Party control, while in British Columbia the left-leaning New Democratic Party replaced the Liberals in 2017. The centre-left Liberal Party of Canada has held a majority in the Parliament of Canada since 2015.
21 Reference Re Secession of Quebec [1998] 2 SCR 217, 255–6 [66]. As Leclair puts it, federalism is the product of groups of distinct peoples choosing to unite in the pursuit of certain common objectives while choosing to remain autonomous in the achievement of other more particular objectives: Leclair, ‘Forging a True Federal Spirit’, above n 19, 32.
22 Section 27 of the Canadian Charter of Rights and Freedoms provides that the Charter ‘shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canada’.
23 Reference Re Secession of Quebec [1998] 2 SCR 217, 261–2.
24 Macklem, above n 4, 4.
25 Tsilhqot’in Nation v British Columbia [2014] 2 SCR 257, 270 [3] (‘Tsilhqot’in’): ‘For centuries, people of the Tsilhqot’in Nation … have lived in a remote valley bounded by rivers and mountains in central British Columbia. They lived in villages, managed lands for the foraging of roots and herbs, hunted and trapped. They repelled invaders and set terms for the European traders who came onto their land. From the Tsilhqot’in perspective, the land has always been theirs’.
26 See, eg, R v Sioui [1990] 1 SCR 1025 (‘we can conclude from the historical documents that both Great Britain and France felt that the Indian nations had sufficient independence and played a large enough role in North America for it to be good policy to maintain relations with them very close to those maintained between sovereign nations’): at 1052–3; Haida Nation v British Columbia (Minister of Forests) [2004] 3 SCR 511 (‘Haida Nation’) (‘Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty’): at 524 [20].
27 Arguments that Canada's constitutional mythology must recognise Indigenous peoples as a founding nation alongside the English and French have been percolating for at least 25 years. See, eg, Radha Jhappan, ‘Inherency, Three Nations and Collective Rights: The Evolution of Aboriginal Constitutional Discourse from 1982 to the Charlottetown Accord’ (1993) 7–8 International Journal of Canadian Studies 225, 231; Peach, Ian, ‘The Power of a Single Feather: Meech Lake, Indigenous Resistance and the Evolution of Indigenous Politics in Canada’ (2011) 16 Review of Constitutional Studies 1Google Scholar; Chartrand, Paul, ‘Indigenous Peoples: Negotiating Constitutional Reconciliation and Legitimacy in Canada’ (2011) 19 Waikato law Review 14Google Scholar; Slattery, Brian, ‘The Aboriginal Constitution’ (2014) 67 Supreme Court Law Review 319Google Scholar, 329–33; Kathleen Mahoney, ‘The Roadblock to Reconciliation: Canada's Origin Story’ (2016) Canadian Issues 29; and Grammond, Sébastien, ‘Compact is Back: The Supreme Court of Canada's Revival of the Compact Theory of Confederation’ (2016) 53 Osgoode Hall Law Journal 799CrossRefGoogle Scholar, 805–6. See also Phil Fontaine, Recognition2Action <https://www.recognition2action.ca/> (the movement spearheaded by former National Chief of the Assembly of First Nations, Phil Fontaine, which declares: ‘The idea that Canada was founded by the British and French, is incomplete. Indigenous peoples were here long before both and should be recognized as at least equal founders of this nation’).
28 Macklem, above n 4, 63.
29 Michael Asch, for example, has considered consociationalism as an alternative model for greater Indigenous self-government in Canada, in terms of which Indigenous groups would be guaranteed bloc representation in existing structures of parliamentary democracy. See ‘Aboriginal Self-Government and the Construction of Canadian Constitutional Identity’ (1992) 30 Alberta Law Review 465, and ‘Consociation and the Resolution of Aboriginal Political Rights: The Example of the Northwest Territories, Canada’ (1990) X(2) Culture 93. On consociationalism in political theory generally, see Lijphart, Arend, Democracy in Plural Societies: A Comparative Exploration (Yale University Press, 1977)Google Scholar.
30 See, eg, LaSelva, Samuel, The Moral Foundations of Canadian Federalism: Paradoxes, Achievements, and Tragedies of Nationhood (McGill-Queen's University Press, 1996)CrossRefGoogle Scholar; Tully, James, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, 1995)CrossRefGoogle Scholar; and Kymlicka, Will, Liberalism, Community and Culture (Clarendon press, 1989)Google Scholar. Macklem also points out that federal systems are consistent with the accommodation of cultural minorities as a fundamental principle of the Canadian constitutional order (Macklem, above n 4, 63, quoting Reference Re Secession of Quebec [1998] 2 SCR 217, 261–2).
31 Leclair, ‘Forging a True Federal Spirit’, above n 19, 34.
32 LaSelva, above n 30, 68.
33 Leclair, ‘Forging a True Federal Spirit’, above n 19, 34. See also Tully, above n 30, 54 (‘Citizens are in cultural relations that overlap, interact, and are negotiated and reimagined’), and Macklem, above n 4, 53 (‘I am sceptical of the possibility of belonging to a single culture that offers a relatively fixed set of practices and ways of life’).
34 Leclair, ‘Federal Constitutionalism and Aboriginal Difference’, above n 7, 532 (footnotes omitted).
35 Patrick Macklem, Indigenous Difference and the Constitution of Canada, (University of Toronto Press, 2001), 107.
36 The full text of s 35 reads as follows:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subs (1) ‘treaty rights’ includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subs (1) are guaranteed equally to male and female persons.
37 R v Sparrow [1990] 1 SCR 1075 (‘Sparrow’). S 35 does not form part of the Charter of Rights and Freedoms and is thus not subject to limitation in terms of s 1 of the Constitution Act 1982. Nevertheless, the Sparrow test for justifiable limitations of Indigenous rights shares many of elements with the test the Court set out in R v Oakes [1986] 1 SCR 103 for testing the justifiability of Charter rights limitations under s 1.
38 R v Badger [1996] 1 SCR 771.
39 Delgamuukw v British Columbia [1997] 3 SCR 1010 (‘Delgamuukw’).
40 Haida Nation [2004] 3 SCR 511, 526–9 [27]–[34].
41 Van der Peet [1996] 2 SCR 507. Establishing Indigenous title is a longer and more arduous process, and so far the Supreme Court has only upheld once such claim for Indigenous title in Tsilhqot’in [2014] 2 SCR 257.
42 Van der Peet [1996] 2 SCR 507, 549 [46].
43 Ibid 554–5 [60].
44 The majority judgment does admit that pre-contact activities and practices can have evolved since pre-contact times, in response to contact with Europeans, but must retain a close connection to the pre-contact nature of the activities or practices: Van der Peet [1996] 2 SCR 507, 578 [113]. Two dissenting judgments would have preferred a ‘dynamic’ over a ‘frozen’ approach to determining which practices and activities have always been important to Indigenous peoples. Justice L’Heureux-Dubé argued that ‘the notion of aboriginal rights must be open to fluctuation, change and evolution, not only from one native group to another, but also over time’: at 578 [113]. And that instead of requiring proof of pre-contact practices, ‘the determining factor should only be that the aboriginal activity has formed an integral part of a distinctive aboriginal culture … for a substantial continuous period of time’: at 601 [175]. Justice McLachlin drew a distinction between an Indigenous right to harvest fish, for example, and the manner in which that right is exercised, arguing that ‘the modern practice by which the more fundamental right is exercised may not find a counterpart in the aboriginal culture of two or three centuries ago. So if we ask whether there is an aboriginal right to a particular kind of trade in fish, ie, large-scale commercial trade, the answer in most cases will be negative. On the other hand, if we ask whether there is an aboriginal right to use the fishery resource for the purpose of providing food, clothing or other needs, the answer may be quite different. Having defined the basic underlying right in general terms, the question then becomes whether the modern practice at issue may be characterized as an exercise of the right: at 631–2 [239].
45 Leclair, ‘Federal Constitutionalism and Aboriginal Difference’, above n 7, 522–4.
46 In Pamajewon [1996] 2 SCR 821, the Supreme Court rejected an argument that Ojibway band councils had a right to regulate economic affairs including gambling activities, holding that any such claims to a right of self-government would have to be established on the Van der Peet test just as any other right: at 824 [24] citing Van der Peet [1996] 2 SCR 507, 548–9 [44]–[47].
47 Leclair, ‘Forging a True Federal Spirit’, above n 19, 32–6, quoting Brouillet, Eugénie, La négation de la nation: L’identité Culturelle québécoise et le fédéralisme canadien (Septentrion, 2005)Google Scholar 384 (Leclair's translation). Other scholars to whom he ascribes similar views include François Rocher, ‘La dynamique Québec-Canada ou le refus de l’idéal fédéral’ in Alain G Gagnon (ed), La fédéralisme contemporain: Fondements, traditions, institutions (les Presses de l’Université de Montréal, 2006) 93; Michel Seymour, ‘La Proie pour l’Ombre: Les Illusions d’une Réforme de la Fédération Canadienne’ in Gagnon, 211; and Joseph Facal ‘Mondialisation, Identités Nationales et Fédéralisme: À Propos de la Mutation en cours du Système Politique Canadien’ in Gagnon, 237.
48 Leclair, Jean, ‘Envisaging Canada in a Disenchanted World: Reflections on Federalism, Nationalism and Distinctive Indigenous Identity’ (2016) 25 Constitutional Forum 15CrossRefGoogle Scholar, 17.
49 Ibid 18.
50 Ibid. It goes without saying that this reasoning is extremely attractive to the members of Quebec's secessionist Bloc Québécois, whose professed affiliation to a broader Canadian identity is so minimal that they no longer want to be part of it at all. Some Indigenous people and scholars also reject the mantle of Canadian in varying degrees, arguing instead for Indigenous governments unaffiliated with Canada. See, eg, Taiaiake Alfred, ‘Restitution Is the Real Pathway to Justice for Indigenous Peoples’ in Gregory Younging, Jonathan Dewar and Mike DeGagné (eds), Response, Responsibility and Renewal: Canada's Truth and Reconciliation Journey (Aboriginal Healing Foundation, 2009) 179; Alfred, Taiaiake, Peace, Power Righteousness: An Indigenous Manifesto (Toronto: Oxford University Press, 1999)Google Scholar; Corntassel, Jeff, ‘Toward Sustainable Self-Determination: Rethinking the Contemporary Indigenous Rights Discourse’ (2008) 33 Alternatives 105CrossRefGoogle Scholar.
51 Leclair notes that this prevailing approach to s 35 means that ‘it is antiquity and not native political autonomy that forms the basis of Aboriginal rights in Canada’: Leclair, ‘Federal Constitutionalism and Aboriginal Difference’, above n 7, 522.
52 R v Sappier [2006] 2 SCR 686, 699–701 [21]–[22].
53 See Haida Nation [2004] 3 SCR 511, 529–31 [35]–[39] for the Court's description of when the obligations arise and what influences the extent of consultation or accommodation required.
54 R v Sappier [2006] 2 SCR 686, 701 [23].
55 Clayton Cunningham, on the other hand, argues that the application of the Van der Peet test to claims for Indigenous self-government is just incorrect as a matter of law: see Clayton Cunningham ‘Aboriginal Powers, Privileges, and Immunities of Self-Government’ (2013) 76 Saskatchewan Law Review 315, 324–7.
56 Sparrow [1990] 1 SCR 1075, 1108 [d], referring to Guerin v The Queen [1984] 2 SCR 335, 385 [d]–[e]. See also Badger [1996] 1 SCR 771, 781–2 [9] (prohibiting unjustifiable limitations of treaty rights) and Delgamuukw [1997] 3 SCR 1010, 1108–9 [162] (prohibiting unjustifiable limitations of Indigenous title).
57 [1994] 1 SCR 159, 184–5.
58 Wewaykum Indian Band v Canada [2002] 4 SCR 245, 286 [81].
59 [2004] 3 SCR 511, 523 [18]. See also Taku River Tlingit First Nation v British Columbia (Project Assessment Director) [2004] 3 SCR 550, 563–4 [23]–[24] (‘Taku River Tlingit’); Mikisew Cree First Nation v Canada (Minister of Canadian Heritage) [2005] 3 SCR 388 (‘Mikisew Cree’).
60 Beckman v Little Salmon/Carmacks First Nation [2010] 3 SCR 103, 154 [105] (‘Little Salmon/Carmacks First Nation’). See also Dickson, Jamie D, The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in Canada (Purich, 2015)Google Scholar 42–7.
61 Taku River Tlingit [2004] 3 SCR 550, 564 [24].
62 Mitchell v M N R [2001] 1 SCR 911, 977 [130] quoting the Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, vol 2: Restructuring the Relationship (Supply and Services Canada, 1996) 240–1.
63 In Little Salmon/Carmacks First Nation [2010] 3 SCR 103 Deschamps J was of the view that through consultation and negotiation leading to an agreement between the Yukon First Nations, the Government of Yukon and the Government of Canada about the use of land and resources subject to Indigenous rights and title claims, the affected First Nations had ‘taken control of their destiny’: at 148 [91].
64 Stacey, ‘Honour in Sovereignty’, above n 12, part IV.
65 [2014] 2 SCR 257. In Hamlet of Baker Lake v Canada (Indian Affairs and Northern Development) [1980] 1 FC 518, the Federal Court upheld a title claim based entirely on the common law: at [78].
66 Tsilhqot’in [2014] 2 SCR 257, 293 [72] citing Delgamuukw [1997] 3 SCR 1010, 1125–6 [190].
67 Ibid 280–1 [38], 293–4 [73]–[75].
68 For similar arguments, see Slattery, Brian, ‘The Constitutional Dimensions of Aboriginal Title’ (2015) 71 The Supreme Court Law Review 45Google Scholar; McNeil, Kent, ‘Aboriginal Rights in Canada: From Title to Land to Territorial Sovereignty’ (1998) 5 Tulsa Journal of Comparative & International Law 253Google Scholar.
69 Mikisew Cree [2005] 3 SCR 388, 393 [1].
70 Little Salmon/Carmacks First Nation [2010] 3 SCR 103, 119 [10].
71 Manitoba Métis Federation Inc v Canada (Attorney General) [2013] 1 SCR 623, 659 [66].
72 Delgamuukw [1997] 3 SCR 1010, 1111 [165]. See also Tsilhqot’in [2014] 2 SCR 257 [82]: (‘the broader public goal asserted by the government’ in seeking to justify limitations of existing rights and title ‘must further the goal of reconciliation.’).
73 Mark D Walters, ‘“Looking for a Knot in the Bulrush”: Reflections on Law, Sovereignty, and Aboriginal Rights’ in Patrick Macklem and Douglas Sanderson (eds), From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights (University of Toronto Press, 2016) 60; Macklem, Indigenous Difference and the Constitution of Canada, above n 4, 125.