Threatening Reconciliation: The Supreme Court of Canada’s Foundational Jurisprudence on Aboriginal Rights and Title, 1990-1997

In this article, I enthreaten the Supreme Court of Canada’s foundational jurisprudence on Aboriginal rights and title under s. 35 of the Constitution Act, 1982 by reading it through a lens of threat. I argue that the majority’s reasons in Van der Peet, Nikal, Lewis, Gladstone, NTC Smokehouse, Pamajewon and Delgamuukw are a juridical response to the threat that Indigenous peoples’ inherent rights poses to the preferential allocation of resources to settlers and the settler state. When viewed through the lens of threat, “reconciliation” takes on an additional – and, I argue, a more accurate – meaning: “reconciliation” as a response to a perceived or actual threat to settler supremacy. Through “reconciliation”, the Court resolves the threat of Indigenous peoples’ inherent rights, in particular rights to self-government, in favour of the future of the settler state. At the same time, this vision of “reconciliation” threatens Indigenous futures by constraining the terms under which Indigenous peoples’ political difference is recognized and respected. In its jurisprudence, the Court must also deny or obfuscate reconciliation as a response to this threat. The settler state cannot cleanly admit either its prioritization of its claims over Indigenous resources nor its fear of Indigenous peoples and their corresponding inherent rights. “Reconciliation” must project balance, a return to equilibrium and stability, an assured and healthy ethic for the settler state, one in which we are “all here to stay” – and preferably for settlers in much the same way. Enthreatening this jurisprudence also menaces it. By making settler supremacy and futurity visible in this jurisprudence, it challenges courts and legal actors to imagine a different vision of reconciliation, one in which settlers are here to stay in a different way.