V. The Need, and
Requirement for, Negotiations
[# 85] In Reference Re Secession of Quebec [1998] 2 S.C.R. 217, the Supreme Court of Canada identified "four fundamental and organizing principles of the constitution" -federalism, democracy, constitutionalism and the rule of law, and respect for minorities. At p. 248, the court stated:
These defining principles function in symbiosis. No single principle can be defined in isolation from the others, nor does one principle trump or exclude the operation of the other ... The principles assist in the interpretation of the text and the delineation of spheres of jurisdiction, the scope of rights and obligations, and the role of our political institutions. Equally important, observance of and respect for these principles is essential to the ongoing process of constitutional development and evolution of our constitution as a "living tree" ...[# 86] In describing two of these principles, namely constitutionalism and the rule of law, and protection of
minorities, the court stated at pp. 257, 258 and 262, as follows:
...As we noted in the Patriation Reference, supra, at pp. 805-6, "[t]he 'rule of law' is a highly textured expression ... conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority." At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action ... the rule of law provides that the law is supreme over the acts of both government and private persons ...... the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order"
Consistent with this long tradition of respect for minorities, which is at least as old as Canada itself, the framers of the Constitution Act, 1982 included in s. 35 explicit protection for existing aboriginal and treaty rights ... The protection of these rights, so recently and arduously achieved, whether looked at in their own right or as part of the larger concern with minorities, reflects an important underlying constitutional value.[# 87] In examining the value of the democracy principle in the constitutional law and political culture of Canada, the court at p. 256 stated:
Finally, we highlight that a functioning democracy requires a continuous process of discussion ... At both the federal and provincial levels, by its very nature, the need to build majorities necessitates compromise, negotiation and deliberation. No one has a monopoly on truth, and our system is predicated on the faith that in the marketplace of ideas, the best solutions to public problems will rise to the top ...[# 88] In dealing with the operation of these constitutional principles in the secession context, the court
at pp. 266, 268 and 269 stated:
The conduct of the parties in such negotiations would be governed by these same constitutional principles which give rise to the duty to negotiate: federalism, democracy, constitutionalism and the rule of law, and the protection of minorities ... Refusal of a party to conduct negotiations in a manner consistent with constitutional principles and values would seriously put at risk the legitimacy of that party's assertion of its rights, and perhaps the negotiation process as a whole. Those who quite legitimately insist upon the importance of upholding the rule of law cannot at the same time be oblivious to the need to act in conformity with constitutional principles and values, and so do their part to contribute to the maintenance and promotion of an environment in which the rule of law may flourish.[# 89] In Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010 ("Delgamuukw") Chief Justice Lamer (as he then was), at pp. 1123, 1124, drew the important connection between negotiations, and the achieving of a basic purpose of s. 35(l):
"Finally, this litigation has been both long and expensive, not only in economic but in human terms as well. By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts. As was said in Sparrow, at p. 1105, s. 35(1) "provides a solid constitutional base upon which subsequent negotiations can take place". Those negotiations should also include other aboriginal nations which have a stake in the territory claimed. Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet, supra, at para. 31, to be 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."[# 90] Twenty-seven days following the release of Delgamuukw, the Minister of Indian Affairs, in an address on the occasion of the unveiling of Gathering Strength - Canada's Aboriginal Action Plan, January 7, 1998, outlined the Government of Canada's Statement of Reconciliation. Following the signing of this Statement, the Minister, on behalf of the Government of Canada, also drew and recognized the connection
between negotiations, and the constructing of a relationship between aboriginal and non-aboriginal people, characterized by mutual respect and recognition, responsibility and sharing. Recognition of the need, and requirement for, negotiations, was outlined in the following commitment:
"In this context, and particularly with respect to the working relationship, our commitment to partnership is:* to work out solutions together beforehand, instead of picking up the pieces after the
fact;
* a commitment to negotiate rather than litigate;
* a commitment to communication;
* a commitment to meaningful consultation; and
*
a commitment to prompt action to address concerns before positions get
too polarized to
move."
[# 91] Given that:
i) "s. 35(1) is a solemn commitment that must be given meaningful content,": Sparrow, supra, at 1108,
ii) "The relationship between the Government and aboriginals is trust-like, rather than adversarial and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship": Sparrow, supra, at 1108,
iii) "... a functioning democracy requires a continuous process of discussion ...": Reference Re Secession of Quebec, supra, at 256,
iv) "... observance of and respect for these [constitutional] principles is essential to the ongoing process of constitutional development and evolution of our constitution as a 'living tree'"...: Reference Re Secession of Quebec, supra, at 248,
v) "... the rule of law requires the creation and maintenance of an actual order of positive laws...": Reference Re Secession of Quebec, supra, at258,
vi) "No one has a monopoly on truth...": Reference Re Secession of Quebec, supra, at 256,
vii) "... the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith. Ultimately it is through negotiated settlements, with the good faith and give and take on all sides ... that we will achieve ... a basic purpose of s. 35(1) ..." Delgamuukw, supra, at pp. 1123, 1124,
viii) "There is a need "to contribute to the maintenance and promotion of an environment in which the rule of law may flourish": Reference Re Secession of Quebec, supra, at 269,
ix) "Those who ... insist upon the importance of upholding the rule of law ... [must] do their part to contribute to the maintenance and promotion of an environment in which the rule of law may flourish."Reference Re: Secession of Quebec, supra at pp. 268, 269 and
x) "Section 35 calls for a just settlement for aboriginal peoples": Sparrow, supra, at 1106, in my view, negotiation or mediation, processes, protocols and parameters must be established without any further delay, in order to identify, for the purpose of affirming and protecting, the s. 35(1) rights, inthis case, of Ontario's Métis people.[# 92] In Perry v. Ontario (1997), 33 O.R. (3d) 705 (C.A.) ("Perry"), the court concluded that "while practicality may dictate that the parties negotiate, the constitution does not," and later that "the scope of this fiduciary obligation, as it has so far been developed, does not include a legal duty to negotiate with aboriginal communities." It is important, however, to note that Perry was decided before Delgamuukw or Reference Re Seccession of Quebec were handed down. The conclusions reached therein with respect to any requirement
for negotiations and steps to be taken to secure a just settlement of s. 35 rights, must now be reconsidered in light of these Supreme Court decisions.
[# 93] Furthermore, I consider that meaningful content cannot be given to s. 35(1), nor can the rule of law flourish, in an environment where, given the trust-like relationship between aboriginal peoples and the government, and given the many other complex and competing interests at stake, both public and private, the aboriginal peoples are required, absent a failure of negotiations or mediations entered into and conducted in good faith, to defend themselves against the blunt instrument of the criminal or quasi-criminal process, or to litigate against the Crown through every level of court, in a multitude of cases involving a multitude of issues. If the search for justice and settlements in Ontario has led us to court-connected mediation, surely by the same measure, and for the additional reasons herein given, the search for a just settlement of the s. 35 rights of the aboriginal peoples of this province, must lead us to a process of good faith negotiations, and in applicable circumstances, mediation.
[# 94] In this respect, I adopt fully the learned tria judge's exhortation, stated rhetorically at para. 134 of his reasons:
"Is it not time to find answers regarding
the issues affecting the Métis?"