Hume Nathan E 201211 SJD Thesis

Constitutional Possibilities: An Inquiry Concerning Constitutionalism in British Columbia by Nathan Edward Hume A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Graduate Department of the Faculty of Law University of Toronto © Copyright by Nathan Edward Hume 2012 Constitutional Possibilities: An Inquiry Concerning Constitutionalism in British Columbia Doctor of Juridical Science 2012 Nathan Hume Faculty of Law University of Toronto Constitutional change is relentless. Today, states jockey with regional associations, international organizations, transnational networks and sub-state authorities to define the scope of legitimate political conduct and establish rival bases for political affiliation. Constitutional theorists must be resolute but they should not be rigid. Especially in such uncertain conditions, theories are best understood not as plans to be implemented but as hypotheses to be tested. Charles Sabel and David Dyzenhaus write separately but share this pragmatic orientation, in which doubt is indispensable and truth is the end of public inquiry. They also share a distinctive belief that constitutionalism serves a moral end: it is the project of cultivating citizens who conceive their political community in terms of the commitments revealed by its practices. Their position, which is well suited for contemporary challenges, warrants elaboration and examination. British Columbia offers an ideal constitutional laboratory for that test. During the 1970s and 1980s, doubts mounted about the legitimacy of the constitutional settlement imposed by the Crown in the westernmost province of Canada. Legal, political and constitutional decisions raised the possibility that aboriginal rights and title survived colonization and Confederation. Since 1990, their existence has been confirmed in a cascade of constitutional experiments. Those initiatives can be distilled into four procedures: litigation, negotiation, consultation and collaboration. Although they have delivered practical benefits to some indigenous peoples, these procedures have not transformed provincial politics into a moral endeavour. The constraints on constitutionalism in British Columbia are both conceptual and institutional. Despite marginal improvements, those constraints endure and constitutionalism remains for now the sporadic pursuit of a small elite. To conceive ii constitutionalism as a project is to set a sound but exacting standard. Although British Columbia falls short, its failure is informative: the theory is useful. iii For Angie iv Table of Contents Introduction .......................................................................................................................................... 1 Chapter 1: Constitutional Theory and Constitutional Possibilities ............................................. 11 Chapter 2: Twenty Years of Constitutional Experiments in British Columbia ........................ 89 Chapter 3: Land and History: Conceptual Constraints on Constitutionalism in British Columbia ............................................................................................................................................ 197 Chapter 4: Institutional Constraints on Constitutionalism in British Columbia .................... 231 Conclusion: The Possibilities of Constitutionalism .................................................................... 293 v “I promise nothing complete; because any human thing supposed to be complete, must for that very reason infallibly be faulty.” Herman Melville, Moby Dick vi Introduction This dissertation is an attempt to take constitutionalism seriously. It is a response to recent scholarship that treats constitutionalism either as an adjunct of politics or an extension of philosophy. It is a reaction to the glut of constitutionalisms, from European to theocratic to democratic and beyond, that have been conjured to defend or critique efforts to entrench particular political settlements against reform and that obscure constitutionalism itself. It is also a reply to theorists who treat constitutionalism as the institutional conclusion of a philosophical argument: of course we want to adopt the right institutional answer. It is an attempt to determine whether constitutionalism could be a distinct endeavour: a mode of conduct that requires a different orientation to constitutions, in which we ask not what we can do with them but what they require from us. This dissertation develops a theory of constitutionalism as a project: an undertaking for which those involved are responsible, rather than something that simply results from politics or logic. More precisely, it defines constitutionalism as the project of cultivating a principled political community: a community that, given its conduct, can be understood in terms of its commitments. The basic activity of this project consists of reviewing and revising political practices in light of the principles they express, and vice versa. This theory is based on the work of two theorists: Charles Sabel and David Dyzenhaus. They are contemporary, like the theorists to whom this dissertation responds. They are relevant, since they write about constitutionalism rather than one or more of its many variations. They are also intended to provoke debate, since they may appear to share little of substance, given their different research agendas and preoccupations. However, on closer look, their work reveals many mutual influences and promises a fertile common ground. Other theorists have complementary ideas about constitutionalism. Some of them are considered in the following chapters, while others may be canvassed in subsequent works. However, this dissertation is not concerned exclusively with theory. While it is important to know whether constitutionalism could be understood as a project, it is also important to know whether that understanding could be useful. For this reason, it is necessary to test this theory of constitutionalism in a case study. Multiple case studies would have been preferable. Comparison facilitates the identification of outliers and the refinement of observations. However, practical considerations necessitated a single study. This approach to constitutionalism requires significant attention to detail and therefore a substantial commitment of time. The case selected was British Columbia, in particular the constitutional developments involving indigenous peoples in that Canadian province from 1990 through 2010. To do those developments justice, it was necessary to postpone comparative analyses, 1 2 although this theory is meant for general application. British Columbia is an exemplary case study. The developments in question are abundant, prominent and transparent: there is a lot of data and it is easily accessible. As important, the participants are struggling with very basic questions about the nature, content and legitimacy of the constitutional settlement in the province. Charles Taylor once wrote that, “for all of the people east of the Rocky Mountains, British Columbia is a strange place, not quite believable.”1 He exaggerated, but he did so in service of an important truth: British Columbians are separated from other Canadians by more than just geography. For example, they have borne, with pride and guilt and since long before such dysfunction became fashionable, a penchant for partisan politics and eccentric leaders. Many of them adopt (and some, via action movies, hydroponic marijuana, organic juices and tailored yoga pants, export) an air of enlightened hedonism that offends the traditional values that purportedly animate other parts of the country. British Columbia is a rich province, blessed with natural resources and immigrant optimism. Yet it tolerates the highest rates of child poverty and some of the worst inequality in Canada. Railroads, highways and pipelines join with rivers to whisk the hinterland’s bounty to the coast and, from there, to mills and markets abroad. Investors scramble and tourists flock to shimmering Vancouver, where green glass condominium towers reflect the grime and despair of Canada’s poorest neighbourhood. Although the students and suburbs in British Columbia are cosmopolitan, so are the gangs. Foreign influences and international connections are nothing new to British Columbia: before it was a Canadian province it was a British colony. Crown rule was imposed upon the indigenous peoples who welcomed, fought, ignored and traded with the Europeans when the latter arrived in their traditional territories. Very few treaties were signed and those that were signed were perfunctory. Yet Canadian courts have confirmed that aboriginal rights to land and resources survived colonization and Confederation and continue to exist in the province. Section 35(1) of the Constitution Act, 1982 recognizes and affirms those rights. Meanwhile, the federal Parliament retains jurisdiction over “Indians” and lands reserved for them. The Canadian Constitution is both an expression of the Crown’s colonial legacy and an instrument to transform that legacy. Like any expression, it requires interpretation. Like any instrument, it has limitations. It is not a comprehensive program for good government. The Canadian Constitution does not, for example, tell indigenous, provincial and federal governments how to correct historical injustices. It does not specify how to transfer a forest licence or build a dam without unduly infringing aboriginal rights. It does not even stipulate how to

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