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| Stephen O'Neill |
Marcel, a member of the Rainy River First Nation, pointed out to me and my paddling partner the safe channel through the rapids, which we would negotiate at 8 the next morning. He explained his peoples’ long connection to Manidobawitigong, and their harvesting of the Nah May (sturgeon) for many hundreds of years at this very special place. We were quick to tell him that we had seen many white sturgeon jumping from the waters throughout our first paddling day. Hundreds of feet overhead, we had also seen several bald eagles, as our tried and tested canoe coursed down the river to this place.
When we left Manidobawitigong, Marcel was overjoyed to provide us with a tour of his community. He introduced us to his wife and children and showed us around the family home that he had finished building only a few years earlier. But he also showed us something else. Reaching into the front area of his truck, he took out an eagle feather, which he presented to me with dignity. He had carried it with him for a year, waiting for the right time and place to gift it. He explained the meaning and the purpose of the gift.
I thought often of the eagle feather as we paddled down the Rainy River to and through the Lake of the Woods, a great lake containing “everything” from crystal clear waters, to more than 14,500 islands, multiple species of fish, high winds and white pelicans. A powerful lake also surrounded by distinct and varied Indigenous and non-Indigenous communities.
As we paddled through strong northwest winds, I thought about barriers to reconciliation caused by distrust and misunderstanding. I recalled that in the summer of 2000, then Globe and Mail columnist, John Stackhouse, had hitchhiked from the east coast to the west coast, across Canada. He had written a series of articles about his trip, describing the people he met and the places he visited along the way. On Sept. 13, 2000, when he was halfway across the country he wrote:
“I was just beginning to discover how much resentment and distrust they (natives) also face. As the nightly news showed more scenes from Burnt Church, N.B., I found that among non-natives there was a disgust that cannot be underestimated. My first taste of Canada’s hidden anger had come in Saint John, the day I started the trip.”
Having reached the west coast, he wrote in his summary or focus article as follows:
“… and everywhere I heard anger about native Canadians.”
I reflected that what Stackhouse had heard and observed a mere 14 years earlier mirrored, to some extent, what I had heard and experienced, paddling westward between Montreal and Kenora during each of the past six summers. Along the rivers, lakes and waterways, and through numerous communities, I listened as Canadians from all walks of life, lawyers and judiciary included, explained their views in relation to Indigenous peoples and Indigenous legal issues.
Justice Ian Binnie best described the reconciliation of Indigenous peoples and non-Indigenous peoples, when in the Mikisew Cree case in 2005, he wrote:
“The fundamental objective of the modern law of Aboriginal and treaty rights is the reconciliation of Aboriginal peoples and non-Aboriginal peoples and their respective claims, interests and ambitions. The management of these relationships takes place in the shadow of a long history of grievances and misunderstanding.”
Later, in the same decision he wrote:
“Treaty making is an important stage in the long process of reconciliation, but it is only a stage. What occurred at Fort Chipewyan in 1899 was not the complete discharge of the duty arising from the honour of the Crown, but a rededication of it. … the honour of the Crown infuses every treaty and the performance of every treaty obligation ” (Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) 2005 SCC 69).
For some people, the constitutional legal rights of Canada’s Indigenous peoples, rights that are to be construed in a liberal and purposive manner, could best be categorized or described by the following questions or assertions, under a heading that might read: Reckon? — Silly Nation:
- This is all in the past.
- Why should we have to pay for it now?
- Treaty rights are so vague as to be meaningless. Why should Indigenous peoples have such rights anyway?
- Wasn’t this all settled in the Indian wars, and as a result of the Seven Years’ War?
- Why should there be two sets of laws? One for us and one for them?
- What’s so special about the Royal Proclamation of 1763 and the Treaty of Niagara, 1764? Why honour the treaties anyway?
- Why can’t they just learn to adapt and assimilate, as all newcomers to Canada must do?
There can be no doubt what “reckon” ciliation camp the former chief justice of Canada belongs to. In Tsilhqot'in Nation v. British Columbia 2014 SCC 44, released on June 26, 2014, a unanimous Supreme Court of Canada granted a declaration of Indigenous title over a defined area, marking the first such declaration in the court’s history. In penning her decision, Chief Justice Beverley McLachlin repeated the phrase “reconciliation” 13 times. And at paragraph 142 of the decision, she wrote:
“The guarantee of Aboriginal rights in s. 35 of the Constitution Act, 1982, like the Canadian Charter of Rights and Freedoms, operates as a limit on federal and provincial legislative powers. The Charter forms Part I of the Constitution Act, 1982, and the guarantee of Aboriginal rights forms Part II. … Part II Aboriginal rights, like Part I Charter Rights, are held against government — they operate to prohibit certain types of regulations which governments could otherwise impose.”
As our canoe drew further and further towards the lake’s north end, I reflected that if the legal mandate is reconciliation, as it is, and if we are to move past misunderstandings and distrust, we must then come to know one another. And so to that list of earlier questions and statements set out above, I thought that perhaps there could be added the following, under the heading: Reconciliation:
- Have we visited Indigenous communities, other than for court purposes?
- Can we count as among our friends, some Indigenous peoples?
- Have we tried to understand their laws, their beliefs and their deep connection to their traditional lands and waters?
- Have we educated ourselves about their treaty history, and the solemnity of their relationship with the Crown?
- Do we respect them?
- Do we trust them?
- Can we do more?
Ruth Ann Onley, in a Globe and Mail article dated Sept. 22, 2014, titled How we build a new relationship with Ontario’s First Nations, described the work of reconciliation as follows:
“A word that came up many times, before, during and after our stay in KI, was Reconciliation. In the context of our visit, rather than a transaction or a process, reconciliation meant dissolving a relationship that no longer works and building a new one, by watching, listening and learning.”
As my partner and I hauled our faded red 17-foot Nova Craft canoe onto the waterfront landing beside the beautiful Kenora Courthouse, I reached into my day sack and took out the gift of the eagle feather. Looking at both the courthouse and the feather, I couldn’t help but conclude that reconciliation is work that belongs to all.
Stephen O’Neill was appointed a judge of the Ontario Superior Court of Justice in 1999, retiring in 2015. Before his appointment as a judge, he practised law out of Sudbury, focusing on Indigenous legal and justice issues. He has travelled extensively throughout northeastern Ontario and he has written and spoken extensively on Indigenous and Crown /Aboriginal issues. He recommenced the practice of law in 2016 with the firm Nahwegahbow, Corbiere and his practice is devoted solely to First Nations issues. In 2009, Justice O’Neill determined to paddle across Canada, following the historic Route of the Voyageurs. He has reached Yellowknife and will undertake the final phase to Tuktoyaktuk and the Arctic Ocean in 2022.
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