Honouring the Truth Reconciling for the Future

270 • Truth & Reconciliation Commissionthe federal Department of Justice has two important, and potentially conflicting, roleswhen it comes to Aboriginal peoples:1) The Department of Justice Canada provides legal opinions to the Departmentof Aboriginal Affairs and Northern Development Canada (aandc) to guide thedepartment in its policy development, legislative initiatives, and actions. Thoseopinions, and the actions based on them, invariably affect Aboriginal governmentsand the lives of Aboriginal people significantly. Often, those opinionsare about the scope and extent of Aboriginal and Treaty rights, and often theyform the basis upon which federal Aboriginal policy is developed and enacted.2) Justice Canada also acts as the legal advocate for aandc and the governmentin legal disputes between the government and Aboriginal people. In thatcapacity, it takes instruction from senior officials within the Department ofAboriginal Affairs when the department is implicated in legal actions concerningits responsibilities. It gives advice about the conduct of litigation, the legalposition to be advanced, the implementation of legal strategy, and the decisionwhether to appeal a particular court ruling.Upholding the honour of the Crown, and disputing a legal challenge to an official’sor department’s action or decision, can sometimes give rise to conflictinglegal obligations.In the Commission’s view, those legal opinions should be available, as of right andupon request, to Aboriginal peoples, for whom the Crown is a fiduciary. Canadiangovernments and their law departments have a responsibility to discontinue actingas though they are in an adversarial relationship with Aboriginal peoples and to startacting as true fiduciaries. Canada’s Department of Justice must be more transparentand accountable to Aboriginal peoples; this includes sharing their legal opinions onAboriginal rights. As noted above, there is precedent for making this change. Not onlyhas the United States Department of the Interior’s Office of the Solicitor made publicits legal opinions on a range of issues affecting Native Americans, but also these arenow widely available online. 63Call to Action51) We call upon the Government of Canada, as an obligation of its fiduciary responsibility,to develop a policy of transparency by publishing legal opinions it developsand upon which it acts or intends to act, in regard to the scope and extent ofAboriginal and Treaty rights.One of the aspects of the Doctrine of Discovery that continues to assert itself tothis day is the fact that court cases involving Aboriginal territorial claims have placeda heavy onus on Aboriginal claimants to prove that they were in occupation of land