Article Volume 45:1

Assessing the Delgamuukw Principles: National Implications and Potential Effects in Quebec

Table of Contents

Assessing the Delgamuukw Principles:

National Implications and Potential

Effects in Quebec

Paul Joffe*

The judgment of the Supreme Court of Canada in
Delgamuukiv v. British Columbia should be viewed as a
“work in progress.” This is especially the case since the
fundamental status of Aboriginal peoples and their right to
self-determination still need to be fairly addressed. In de-
termining the collective rights of Aboriginal peoples, it is
also important that a human rights analysis, encompassing
international considerations, be undertaken by the courts.

In the subsequent decision of the Court in the Quebec
Secession Reference, a number of additional principles that
should prove to be of substantial benefit to Aboriginal peo-
ples have been highlighted. These include the constitu-
tional principles of “democracy” and “protection of Abo-
riginal and treaty rights.’ The Court’s pronouncements on
the right to self-detennination also serve to reinforce the
view that s. 35(l) of the Constitution Act, 1982 includes the
inherent right of Aboriginal peoples of self-govemment.

Through a consideration of the principles in Delga-
muukw within the Quebec context, it is concluded that the
Quebec government is not respecting the duty to enter into
and conduct negotiations in good faith. Any progress in
Aboriginal peoples’ issues still takes place within an over-
all unilateral framework that seriously undermines the
status and rights of Aboriginal peoples. What seems to be
for any future negotiations in Canada is the prior es-
crucial
tablishment of a principled framework. The establishment of
such a framework should be accomplished collaboratively by
the parties concerned or, as a last resort, by the courts.

Le jugement de la Cour suprnme du Canada dans
l’affaire Delgamuukiv c. Colombie-Britannique doit etre
consid~rb comme un ouvrage inachev6, particulirement en
raison du fait que le statut fondamental des peuples au-
tochtones et leur droit a l’autoddtermination n~cessitent
toujours d’Etre abord~s &tuitablement. En daterminant les
droits collectifs de ces peuples, il importe 6galement que
les tribunaux entreprennent une analyse basde sur les droits
de l’homme et tenant compte des aspects intemationaux de
]a question.

La d6cision post~rieure de la Cour dans le Renvoi
relatif a la skcession du Qudbec a soulign6 plusieurs prin-
cipes suppldmentaires qui devraient 8tre d’une utilit6 con-
sidrrable aux peuples autochtones, dont les principes cons-
titutionnels de < et de (last modified: 26 November 1996) at 15: “[L]eaders from First Nations across British Colum-
bia appointed three members to the task force. … Two members were appointed by the Government of
Canada, and two by the Government of British Columbia. … The task force … agreed to address the
terms of reference by a consensual process.”

“6 In the event that self-government litigation proves to be a necessity, it would be especially bene-
ficial for Aboriginal litigants to consider establishing certain fundamental principles as a first step. If
carefully crafted, these principles could greatly assist all concerned parties to resolve their respective
jurisdictions and interests through the negotiation process. In the absence of a principled framework,
judicial consideration of self-government jurisdiction could prove to be a most imprudent risk.

For example, relevant principles might include recognition that: i) the right to self-government is a
democratic entitlement of Aboriginal peoples; ii) Aboriginal peoples are “peoples” with the right to
self-determination; iii) the right to self-determination is a part of the internal law of Canada; iv) the
right to self-government is an important component of Aboriginal self-determination within Canada;
and v) the right to self-determination, including self-government, is incorporated in s. 35 of the Con-
stitution Act, 1982.

… Supra note 1 at pam. 171, Lamer C.LC.: “The degree of complexity involved can be gleaned
from the Report of the Royal Commission on Aboriginal Peoples, which devotes 277 pages to the is-
sue. That report describes different models of self-government.”

” See supra note 5, where the Court outlines a legal framework for secession negotiations that i)
“emphasizes constitutional responsibilities as much as it does constitutional rights” (paras. 104, 151);
ii) requires that such negotiations be “principled” (paras. 104, 149); iii) highlights the importance of
underlying constitutional principles that govern the negotiations (paras. 49ff., 88, 90, 93-95); iv) in-
cludes a constitutional duty to negotiate (paras. 69, 88ff.); and v) underlines that participants in such
negotiations must “reconcile the rights, obligations and legitimate aspirations of all Canadians” (para.
104).

“‘ See Corbire, supra note 34, where the Court elaborates upon the principles that the federal Par-
liament must respect in engaging in a consultative and legislative process to eliminate discrimination
against off-reserve members of Indian bands under s. 77(1) of the Indian Act. These principles in-
elude the following: i) the principle of democracy, as an underlying constitutional principle, means
more than majority rule (ibid at para. 116) and is “an important remedial consideration” (at para.
117); ii) the democratic principle “encourages remedies that allow the democratic process of consul-
tation and dialogue to occur” (at para. 116); and iii) in order to comply with s. 15(1) of the Canadian
Charter, any legislative amendments adopted by Parliament must recognize “non-residents’ right to
substantive equality in accordance with the principle of respect for human dignity” (which does not
mean in all instances that there would be identical voting rights for residents and non-residents) (at
par. 95). As a result, the Supreme Court suspended the effect of its declaration for a period of 18
months, in order to “enable Parliament to consult with the affected groups, and to redesign the voting

2000]

R JOFFE – ASSESSING THE DELGAMUUKW PRINCIPLES

while encouraging the interested parties to negotiate or discuss in good faith any fu-
ture arrangements.

Aboriginal territories, lands, resources and self-determination are all issues that
must be addressed on an urgent basis. Yet, there are still those who put budgetary con-
siderations ahead of human rights and long-standing concerns for equality and justice.
In this regard, serious reflection should be given to the words of Madame Justice
Rosalie Silberman Abella of the Ontario Court of Appeal: “We have no business fig-
uring out the cost of justice until we can figure out the cost of injustice. ‘

With this in mind, we must demonstrate the collective will to realize the critical
precept underlined by Chief Justice Lamer in Van der Peet and reiterated in Delga-
muukw: that “the only fair and just reconciliation is … one which takes into account
the aboriginal perspective while at the same time taking into account the perspective
of the common law. True reconciliation will, equally,’. place weight on each. 2”
It is

provisions of the Indian Act in a nuanced way that respects equality rights … should it so choos&’
(ibid. at para. 121).

2′ Cited in J. Keene, “Claiming the Protection of the Court: Charter Litigation Arising from Gov-
(1998) 9 N.J.C.L. 97 at 115. These words of M Justice Abella have been en-
ernment ‘Restraint’
dorsed by Supreme Court of Canada Judge Claire L’Heureux-Dub6: see “Making Equality Work”
(Notes for an Address to the Department of Justice, 10 December 1996).

‘6’ In regard to Aboriginal peoples, it is important to highlight here the concepts of “equality” that
recently have been affirmed by the Supreme Court of Canada: i) True reconciliation, in accordance
with s. 35(1) of the Constitution Act, 1982, requires that equal weight be accorded to Aboriginal and
common law perspectives (see text accompanying this note); and ii) the principle of “protection of
Aboriginal and treaty rights:’ either in its own right or as part of the principle of “protection of mi-
norities:’ has equal weight with other underlying constitutional principles (see text accompanying
note 46).

These constitutional precepts of “equality” have yet to be adequately incorporated in judicial
analyses pertaining to Aboriginal peoples and their basic status and rights. For example, Aboriginal
peoples are firmly opposed to the surrender or extinguishment of their Aboriginal title and rights. Yet
courts continue to ignore this central Aboriginal perspective. Also, aside from considerations relating
to fiduciary duties and human rights, such surrender or extinguishment is wholly inconsistent with the
constitutional principle of “protection of Aboriginal and treaty rights” No other people in Canada has
its fundamental rights purportedly destroyed, in order to safeguard the people or rights concerned.

In regard to the equality guarantees under s. 15(1) of the Canadian Charter of Rights and Free-
doms, see Corbire, supra note 34 at para. 54, L’Heureux-Dub6 J.: “Mhe contextual approach to s.
15 requires that the equality analysis of provisions relating to Aboriginal people must always proceed
with consideration of and respect for Aboriginal heritage and distinctiveness, recognition of Aborigi-
nal and treaty rights, and with emphasis on the importance for Aboriginal Canadians of their values
and history:’

262 Van der Peet, supra note 19 at para. 50. This view is reiterated by Lamer CJ.C. in Delgamuukw,
supra note 1 at para. 81 and in the majority opinion by Binnie J. in Marshall, supra note 225 at para.
19. To date, however, it would be difficult to conclude that the “Aboriginal perspective” has received
equal consideration by Canadian courts when determining the nature and scope of Aboriginal rights.
See e.g. A. Zalewski, ‘From Sparrow to Van der Peet. The Evolution of a Definition of Aboriginal
Rights” (1997) 55 U.T. Fac. L. Rev. 435; and’Aboriginal Rights in Canada”, supra note 21 at 292-93.

MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL

[Vol. 45

imperative that this perspective of intersocietal law include full respect for the collec-
tive and individual human rights of Aboriginal peoples. The inclusion of such a hu-
man rights dynamic may well prove to be a most positive catalyst-an essential step
towards completing the “work in progress” found in Delgamuukw.

In Marshall, ibid. at para. 56, the majority opinion accorded the Aboriginal perspective fair consid-
eration in deciding that the Mi’kmaq people had constitutionally protected treaty rights “to continue
to obtain necessaries through hunting and fishing by trading the products of those traditional activities
subject to restrictions that can be justified.” Regrettably, this has led to violent reactions from non-
Aboriginal fishers in New Brunswick: see M. Tenszen, “Lobster Pot Boils Over” The [Montreal] Ga-
zette (4 October 1999) A8; and T. Ha, “Mi’kmaqs Brace for Further Clashes” The Globe and Mail (5
October 1999) at A4.