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Jan Advocate 2017

34 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE conclusion is important and valuable in the rest of Canadian law. But how can it be reconciled with the honour of the Crown in its dealings with Canada’s Indigenous peoples? How can the Crown, in keeping with the assumption that it intends to fulfill its promises and the principle that no sharp dealing will be sanctioned, be heard to say in court or elsewhere that Canada’s endorsement of the Declaration is an act without domestic legal significance? The discordant nature of the Crown saying one thing to the world and another to its subjects in domestic courts has troubled judges in other contexts. In Minister for Immigration and Ethnic Affairs v. Teoh, the High Court of Australia held that ratification by Australia of the Convention on the Rights of the Child 198923 created a legitimate expectation that a minister of the Crown exercising a statutory discretion would do so according to the treaty—despite its lack of implementation in Australian law. Gummow C.J. and Deane J. held that “ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act … rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.”24 Other courts took up the Teoh approach,25 although the apparent inconsistency between Teoh and the principle that the Crown is not a source of law troubled some courts and commentators, and its correctness came to be questioned.26 The Supreme Court of Canada in Baker pointedly avoided direct consideration of Teoh, finding it “unnecessary to decide whether an international instrument ratified by Canada could, in other circumstances, give rise to a legitimate expectation.27 But whether the state’s accession to an international agreement creates a generalized legitimate expectation of conforming conduct domestically is a broader question than that which we are currently considering. The narrower focus of this inquiry is whether, given the particular character of the Crown’s relationship with Canada’s Aboriginal peoples, its endorsement of the Declaration must be more than “window-dressing”.28 Does the honour of the Crown demand that courts hold the Crown to the Declaration’s promises, whether through the mechanism of s. 35(1), or an interpretive presumption of conformity with the Declaration, or some other means? Time will tell. There is no doubt that Indigenous litigants will seek to use the Declaration to advance their claims.29 The heavy reliance on the Declaration in the Final Report and Calls to Action of the Truth and Reconciliation Commission is proof, if any is needed, of the impact the Declaration has made on Canada’s Aboriginal leaders and advocates.30 Canadian courts will be asked to balance and, if possible, reconcile the competing constitutional


Jan Advocate 2017
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