From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights

From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights

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Edited by Patrick Macklem and Douglas Sanderson
University of Toronto Press, Scholarly Publishing Division © 2016
World Rights
536 Pages
ISBN 9781442628854
Published Feb 2016
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ISBN 9781442637290
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More than thirty years ago, section 35 of the Constitution Act recognized and affirmed “the existing aboriginal and treaty rights of the aboriginal peoples of Canada.” Hailed at the time as a watershed moment in the legal and political relationship between Indigenous peoples and settler societies in Canada, the constitutional entrenchment of Aboriginal and treaty rights has proven to be only the beginning of the long and complicated process of giving meaning to that constitutional recognition.

In From Recognition to Reconciliation, twenty leading scholars reflect on the continuing transformation of the constitutional relationship between Indigenous peoples and the Canadian state. The book features essays on themes such as the role of sovereignty in constitutional jurisprudence, the diversity of methodologies at play in these legal and political questions, and connections between the Canadian constitutional experience and developments elsewhere in the world.

Patrick Macklem is the William C. Graham Professor of Law in the Faculty of Law at the University of Toronto.

Douglas Sanderson is an associate professor in the Faculty of Law at the University of Toronto.


Patrick Macklem and Douglas Sanderson, Recognition and Reconciliation in Indigenous-Settler Societies


Part I: Reconciling Sovereignties

1. Patrick Macklem, Indigenous Peoples and the Ethos of Legal Pluralism in Canada

2. Mark D. Walters, “Looking for a knot in the bulrush”: Reflections on Law, Sovereignty and Aboriginal Rights

3. Jeremy Webber, We Are Still in the Age of Encounter: Section 35 and a Canada beyond Sovereignty

4. Brian Slattery, The Generative Structure of Aboriginal Rights


Part II: Contesting Methodologies

5. P.G. McHugh, A Common Law Biography of Section 35

6. Dale Turner, Indigenous Knowledge and the Reconciliation of Section 35(1)

7. Jean Leclair, Military Historiography, Warriors and Soldiers: The Normative Impact of Epistemological Choices


Part III: Constitutional Consultations

8. Dwight Newman, Consultation and Economic Reconciliation

9. Michael J. Bryant, The State of the Crown-Aboriginal Fiduciary Relationship: The Case for an Aboriginal Veto

10. Sari Graben & Abbey Sinclair, Administering Consultation at the National Energy Board: Evaluating Tribunal Authority


Part IV: Recognition and Reconciliation in Action

11. Sébastien Grammond, Isabelle Lantagne, & Natacha Gagné, Non-Status Indigenous Groups in Canadian Courts: Practical and Legal Difficulties in Seeking Recognition

12. Kirsty Gover, Liberal and Tribal Membership Boundaries: Descent, Consent and Section 35

13. Douglas Sanderson, Overlapping Consensus, Legislative Reform and the Indian Act

14. Courtney Jung, Canada and the Legacy of the Indian Residential Schools: Transitional Justice for Indigenous People in a Non-transitional Society

15. Natalia Loukacheva, Nunavut and Self-Reliance: A Quest of an Arctic Entity in Transition


Part V: Comparative Reflections

16. Jacinta Ruru, Constitutional Indigenous Treaty Jurisprudence in Aotearoa New Zealand

17. Megan Davis and Marcia Langton, Constitutional reform in Australia: Recognition of Indigenous Australians and Reconciliation

18. John Borrows, Legislation and Indigenous Self-Determination in Canada and the United States



Michael Ignatieff, A Jurisprudence of Jurisdictions

“Finding a way to live together is not about tinkering with this or that Aboriginal policy or about expanding this or that feature of constitutional law. It’s an opportunity to reimagine our common future as a people ... The issues at stake in section 35 therefore go beyond any purely intellectual exercise. They challenge our definition of what it is to be Canadian; they are absolutely central to the economic and political future of our country.”

Michael Ignatieff, former leader of the Liberal Party of Canada and Edward R. Murrow Professor of the Practice of Politics, the Press, and Public Policy, John F. Kennedy School of Government, Harvard University

“Professors Macklem and Sanderson present a timely collection of essays that greatly illuminate thinking about the place of Aboriginal peoples in Canada’s social and legal architecture. This book is an important reference for anyone interested in how a modern democracy might come to terms with the present-day legacies of its colonial past.”

S. James Anaya, Regents’ Professor and James J. Lenoir Professor of Human Rights Law and Policy, James E. Rogers College of Law, University of Arizona

‘This book provides the essential underpinnings for future attempts to convey to Canadians the complexities of their evolving relationship with the first nations.’

Neil Vallance, BC Studies winter 2016/17