Reconciliatory Justice
Reconciliatory Justice
In two firsts, the SCC decided that the unwritten constitutional principle of the honour of the Crown applies to certain non-treaty contractual arrangements with Indigenous groups and referred to reconciliation a constitutional principle in Quebec v. Pekuakamiulnuatsh Takuhikan.
Canada, Quebec and the First Nation entered into a series of agreements to establish an Indigenous police force. The First Nation accumulated a large deficit. The First Nation said that Canada and Quebec owed it a duty to negotiate police funding in good faith and that the Crown had imposed an insufficient level of funding knowing it did not cover the deficit. Quebec said that it had completely carried out the strict terms of the agreement: that it need only fund the police force to a maximum amount and that the First Nation agreed to pick up any deficit. Canada paid its share, leaving the SCC to decide the scope of Quebec’s obligations and the manner of their performance.
Kasirer J for the majority found two separate sources of liability in private and public law that would apply both in civil law and common law jurisdictions.
The first source was the private law of contract. In civil law, art. 1375 of the Civil Code requires the parties to perform their contractual obligations in good faith considering the interests of the other parties. I wrote earlier about this implied duty of good faith performance in private law in civil and common law systems.
The novel second source is based in the honour of the Crown. In civil law, this principle applies when the Crown deals with Indigenous people based on art. 1376 of the Civil Code which binds the state to private obligations and “other applicable rules” including public common law. It arises from the special relationship of Crown and Indigenous peoples based on the need to reconcile Crown and prior Indigenous sovereignty. It is a source of public law obligation separate from private law obligations because it is not based on the intention of the parties, but the potential harm to the special Crown-Indigenous relationship.
Kasirer J developed a test for applying this principle to specific non-treaty contracts. The caselaw showed the Crown must act honourably where the contract relates to Indigenous difference in philosophy, traditions and cultural practices, and where the contract relates to a credible claim to an inherent right to self government, drawing on the Haida line of cases holding the Crown to act honourably proportionally to the strength of the claim. The honour of the Crown does not change an agreement’s terms nor create a cause of action; however, it does require a higher standard of performance than even the good faith performance of a contract. For example, the Crown may not be intransigent or take advantage of the relationship’s imbalance.
Kasirer J held the terms of the successive agreements created a long-term relationship where funding for the police force would be reassessed and renegotiated each renewal. He singled out a specific term of a typical renewal where the parties disagreed: the text provided that the contribution of the Crown was capped for a fiscal year and the First Nation had to absorb any deficit. But, he determined that the entire text contemplated successive renewable agreements to maintain the police force which created a specific obligation to renegotiate funding each time the parties renewed their contractual relationship, knowing it could be terminated at any time.
Kasirer J held Quebec breached its contractual duty to negotiate in good faith flowing from the specific textual obligation to negotiate: Quebec was intransigent in unreasonably refusing to genuinely negotiate at during successive renewals. The First Nation had a legitimate expectation to be able to negotiate funding supporting their police force and self-government goals in the face of deficits Quebec knew about. Kasirer J went further to find that Quebec’s insistence on the strict terms of the agreement to cap its contribution and unload the deficit on the First Nation was an abuse of its contractual rights because it had refused to negotiate a reduction of the deficit of the previous year. The additional amounts Quebec contributed to maintain the police outside the textually mandated renewal negotiations did not change the finding of bad faith.
Kasirer J held the facts establishing the contractual breach additionally violated the honour of the Crown. That principle applied because the agreements were made in the spirit of reconciliation, to provide culturally appropriate police services where the provincial police force was distrusted and to further the claim to self-government over internal security. Interestingly, Kasirer J relied on a draft self-government agreement-in-principle and debates surrounding the amendment to Quebec police legislation as evidence that Canada and Quebec considered the First Nation’s claim to a credible right of self-government for self-policing. Quebec failed to meet the heightened standard of conduct because of the damage its actions caused the Crown-Indigenous relationship in the long term that supports reconciliation.
The two sources of liability lead to two different harms to remedy, each with their own analysis.
Kasirer J held that the evidence did not allow him to determine damages for breach of contract. “Corrective justice” compensated full restitution for the immediate, direct and foreseeable consequence of the breach. Here, the evidence did not prove that negotiations would have cancelled the deficit nor assess the effect of Quebec’s supplemental financial assistance. Kasirer J wrote he would have had to remand the matter to the trial judge for a proper assessment.
But the remand was unnecessary because of the breach of the honour of the Crown.
The remedy for failing to act honourably required Kasirer J to develop the concept of “reconciliatory justice,” which was less about compensation for past wrongs than restoring the long-term relationship between Crown and Indigenous people on the path to reconciliation. The remedy looks to the long-term viability of the Indigenous community as a distinct culture by creatively move beyond formal claims resolution to negotiation. Kasirer J thought a private law contractual remedy would not be proportional to the distinct interests protected by the Crown’s duty of honourable dealing in its relationship with Indigenous peoples. Quebec’s refusal to engage in meaningful negotiations had damaged the Crown’s relationship with the First Nation, which felt “a knife to the throat” to accept under-funding, thereby risking its self-government goals, dignity, quality of policing, or disbandment of its police force and cause a return to the provincial policing. A remedy proportional to the damage to the relationship would take into account the possibility that negotiations might have given the First Nation the amount of the deficit: the amount of damages ordered.
The Court continues its path towards reconciling Indigenous prior sovereignty with that of the imposition of Crown sovereignty by developing the law of unwritten constitutional principles to better recognise Indigenous dignity in the Constitution under the new rubric of “reconciliatory justice.” It wisely kept the duty to perform private law contracts in good faith separate from agreements with Indigenous people where Indigenous difference needs greater scope to recognise the dignity issue embedded in the duty of the Crown to act honourably in a long-term relationship, not merely in a business-like way in private contract.
About the author
James Hendry
James Hendry was called to the Ontario Bar in 1981. He was in private practice until 1984 when he joined the Canadian Human Rights Commission as counsel providing legal advice and litigation services, appearing at all levels of court, including the Supreme Court of Canada. In 1989, he was recruited by the Department of Justice. He was General Counsel in the Human Rights Law Section until 2011, specializing in civil Charter social policy advice and equality rights, and interpreting and designing human rights legislation. He was Research Director with the Canadian Human Rights Act Review Panel and a Visiting Scholar at Harvard Law School on a Canada-U.S. Fulbright Scholarship. He publishes extensively on Canadian and comparative constitutional issues and has lectured in Canada, Spain, South Africa, the United States, and Hong Kong. He taught Constitutional Law and Charter at the University of Ottawa, Faculty of Law and currently co-teaches a course on “Writing for Social Justice.” He designed and presented lecture series on the Charter, International Human Rights and Aboriginal Rights at Carleton University. He was the Editor in Chief of the Federated Press Charter and Human Rights Litigation journal from 1993 to 2016. He was founding Editor in Chief of the PKI Global Justice Journal, now published by Queen’s Law (2017 to 2022).