• Sunday, January 20, 2019

The duty to honour: Gitxaala Nation v. Canada - Subscriber Access Only

By BCShippingNews 16 May 2017

“Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgements of this Court, that we will achieve […] a basic purpose of s. 35(1) – ‘the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.’ Let us face it, we are all here to stay.”

Supreme Court of Canada Chief Justice Antonio Lamer’s words in the 1997 case of Delgamuuk v. British Columbia elicit the principles central to Aboriginal rights law. Section 35(1) of our Constitution provides that “the existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed.” Our courts have held that the fundamental objective of aboriginal rights law is the reconciliation of aboriginal and non-aboriginal peoples and their respective claims, interests and ambitions.

Infrastructure projects and industrial activities often affect Aboriginal groups whose rights must be protected in accordance with the Constitution. When the Crown contemplates conduct that might adversely impact potential or established Aboriginal or Treaty rights, it has a duty to consult and, where appropriate, accommodate these rights. This duty stems from the Crown’s unique relationship with Aboriginal peoples and forms part of the process of reconciliation. How these principles translate to practice has been the subject of much debate and litigation.