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Reconciliation through litigation

In British Columbia v Okanagan Indian Band, LeBel J stated that negotiation “remains the ultimate route to achieving reconciliation between aboriginal societies and the Crown.” Yet while negotiation is critical to achieving reconciliation, it need not and should not be the exclusive domain of reconciliation. Rather, as this paper suggests, litigation has played and will continue to play an essential role in achieving reconciliation by more clearly defining rights in difficult areas and advancing negotiations on important issues that might otherwise be irreconcilable. In fact, litigation and negotiation can intersect very comfortably with one another and lay groundwork for achieving reconciliation. This point is developed in this paper with reference to the BC Supreme Court’s decision in Ahousaht Band and Nation et al v. Canada. That case demonstrates that the resolution of contentious issues that cannot be resolved through treaty negotiation can be advanced through focused litigation while still maintaining negotiations as the “ultimate route” to reconciliation.

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