It's been seven years since the Truth and Reconciliation Commission released its Final Report and 94 Calls to Action. Several of them, namely Calls 25-52, directly deal with Canadian law and the legal system. Although Canada has reported on its progress, any meaningful headway will remain restricted until the Supreme Court of Canada aligns its jurisprudence on Indigenous peoples and Aboriginal rights under s. 35 of the Constitution Act, 1982, with the United Nations Declaration on the Rights of Indigenous Peoples and the philosophy underlying the TRC's Calls: Indigenous self-determination. The federal government also has work to do.
Let's begin with the latter, which has yet to enact a Royal Proclamation on Reconciliation or a Covenant of Reconciliation, as per calls to action 45 and 46, that would reaffirm the nation-to-nation relationship between Indigenous peoples and the Crown, adopt and implement the UNDRIP, and repudiate the doctrines of discovery and terra nullius.
Though government representatives have affirmed a nation-to-nation relationship in speeches, the language is notably absent from the federal Act implementing UNDRIP and similar legislation in British Columbia. Also, while the UNDRIP Act repudiates the doctrines of discovery and terra nullius in its preamble, it is only an interpretive aid. It is not binding on the courts' interpretation of the Act or in its broader significance to the jurisprudence on s. 35 of the Constitution Act, 1982. Meanwhile, courts have been reluctant to address the implications of repudiating the doctrines on the legitimacy of the Crown's assertion of sovereignty over Indigenous peoples and their territories. If the Crown does not have any underlying title to Indigenous territories, it must justify its title and exercise of legislative jurisdiction through treaty. This would reverse the onus of proof from Aboriginal peoples to the Crown to establish the legal basis for its interest in Indigenous territories.
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