Reconciliation and the Living Tree Metaphor

The ‘living tree’ metaphor has become a central way of understanding constitutional interpretation in Canada. It also serves as the foundation of Wil Waluchow’s important work on a ‘common law’ conception of constitutionalism. Yet despite the clear normative appeal of the metaphor, for a progressive and adaptive constitutional order, we believe it has some significant moral, political, and legal presumptions and limits. We argue that such limits and presumptions become apparent when examining Canada’s commitment to reconciliation between settler institutions and Indigenous peoples, which reveal the metaphor to be more of an obstacle than an aid to reconciliation. We suggest we are likely better off suspending use of the metaphor (and its associated constitutional constraints) and must instead look for alternative constitutional perspectives. In particular, Indigenous conceptions of nation-to-nation partnerships and Two Row Wampum diplomacy provide valuable sources for rethinking settler-Indigenous relations in Canada.