The Supreme Court of Canada has said that Aboriginal rights were recognized and affirmed in the Canadian Constitution in 1982 in order to reconcile Aboriginal peoples' prior occupation of Canada with the Crown's assertion of sovereignty. However, sharp divisions appeared in the Court in the 1990s over how this reconciliation is to be achieved. Chief Justice Lamer, for the majority, understood reconciliation to involve the balancing of Aboriginal rights with the interests of other Canadians. In some situations, he thought this could justify the infringement of Aboriginal rights to achieve, for example, economic and regional fairness. Justice McLachlin, on the other hand, in strongly worded dissent, regarded infringement for such purposes as unconstitutional. In her opinion, reconciliation can best be achieved through negotiation and the time-honoured process of treaty making.

This article will critically examine the contrasting notions of reconciliation of former Chief Justice Lamer and current Chief Justice McLachlin. It will explain why Chief Justice McLachlin's understanding is preferable, and express the hope that the Court, under her leadership, will modify the Lamer Court's approach to justifiable infringement.