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The Rights of the Aboriginal Peoples of Canada

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The Rights of the Aboriginal Peoples of Canada THE RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA DOUGLAS SANDERS* Vancouver The provisions on aboriginal peoples in the Constitution Act, 1982, reflect the development ofpolitical and legal concerns in theperiod since the second World War. Canadian concern with aboriginal peoples has been in line with or aheadof similar developments in international law . Section 25 recognizes that the distinct group rights ofaboriginalpeoples cannot be subject to the egalitarian provisions ofthe Charter ofRights andFreedoms . Section 35 recognizes and affirms existing aboriginal and treaty rights, but does not substantively enhance those rights . It does prevent their nonconsensual limitation or extinguishment by other than a constitutional amendment. Section 37providesfor a specialfirstministers confer- ence, recognizing that aboriginal questions were incompletely considered in the constitutional review process. A consent clause to amendments was omitted though there is some tradition of seeking aboriginal consent to changes which affect them. Any provision on aboriginal self-government was also omitted, though it has become a basic concern of aboriginal leaders in recent years. Les dispositions contenues dans laLoi constitutionnelle de 1982 se rapportant aux peuples autochtones reflètent l'évolution despréoccupations de naturepolitique et juridique depuis la deuxième guerre mondiale. Le Canada s'estpenché sur le sort des peuples autochtones en même temps ou avant que le droit international ne le fasse. L'article 25 reconnaît que les droits ancestraux des peuples autochtones rie peuvent être assujettis aux dispositions égalitaristes de la Charte des droits et libertés . L'article 35 reconnaît et confirme les droits existants-ancestraux ou issus de traités-despeuples autochtones mais ne les accroît pas en substance . En l'absence de consentement mutuel, cet article empêche que ces droits soient restreints ou abolis autrement que par un amendement constitutionnel . L'article 37prévoyant la tenue d'aune conférence des premiers ministres, on reconnaît ainsi que les questions se rapportant auxpeuples autochtones n'ontpas été entièrement examinées au cours du processus de la révision constitutionnelle . On a omis d'inclure une clauseprévoyant le consentement de cespeuples à tout amendement bien qu'une certaine coutume exige que l'on obtienne ce consentementpour tout changement susceptible de les toucher. On a également omis d'inclure une disposition se rapportant au gouvernement autonome des peuples autochtones alors que c'était une despréoccupations essentielles des dirigeants de cespeuples aux cours des dernières années. * Douglas Sanders, of the Faculty of Law, University of British Columbia, Van- couver. 19831 Aboriginal Rights 31 5 Introduction The rights of the aboriginal peoples proved to be one of the most complex issues in the events which led to the patriation of the Canadian Constitu- tion. In retrospect the political process employed was crucial to any agreement on substantive provisions about aboriginal peoples . If a special constituent assembly had been created to draw up new constitutional provisions, as was occasionally proposed, it seems clear that it would have favoured provisions on the rights of the aboriginal peoples. The special reports which were produced in the period, notably those of the Task Force on National Unity, the Canadian Ear Association and the Quebec Liberal Party, all proposed substantive provisions .' But the constituent assembly model was rejected in favour of traditional Canadian executive federalism, in which responsibility lay with the Prime Minister and the provincial premiers. When the provincial premiers were excluded by the federal unilateralism of October, 1980, responsibility lay with the federal execu- tive . The results of executive decision-making were the delay or rejection of provisions relating to aboriginal peoples . In June, 1980, the Prime Minister and the provincial premiers agreed to put off aboriginal questions for a future stage of constitutional reform. That continued to be the federal government's position after the unilateral strategy was announced in Octo- ber, 1980. After provisions on aboriginal peoples had been included in the reform package, it was afirst Ministers meeting in November, 1981, which removed them. The executive can work behind closed doors . The negative decisions of June, 1980, October, 1980, and November, 1981, were made in closed meetings. The negative decisions were not explicitly acknowl- edged in the public statements issued after the meetings, reflecting the moral and political problems involved in Canada in opposing aboriginal claims . Throughout the reform period, politicians never publicly stated any opposition to substantive provisions on aboriginal and treaty rights . But the opposition existed . Executive decision-making allowed that opposition to prevail . Provisions on aboriginal peoples were inserted in the reform package in a period in which federal executive decision-making had been partially abandoned. The federal government's unilateral strategy had proven high ly unpopular and the government attempted to build support through the hearings of the Special Joint Committee on the Constitution in late 1980 and early 1981 . The Special Joint Committee became a species of constit- uent assembly. The opposition parties and the various witnesses who appeared before the committee publicly favoured substantive provisions on the rights of aboriginal peoples . The federal government was able to appropriate that sentiment as support for its package by abandoning its 1 The various reports are described in Sanders, Prior Claims: Aboriginal People in the Constitution of Canada, in Peck (ed.), Canada and the New Constitution, The Unfinished Agenda, Institute for Research in Public Policy, Montreal (1983), Vol. 1, p. 225. 316 THE CANADIAN BAR REVIEW [Vol. 61 objections to an aboriginal and treaty rights clause . A deal was struck on January 31 st, 1981, publicly endorsed by the three federal political parties and the three national aboriginal organizations . As already noted, the provision which emerged was dropped at the first ministers conference in November, 1981 . It was restored in a modified form in response to public objections and Indian demonstrations . Executive decision-making had been closed. In contrast the processes which led to agreements on a rights provision in January, 1981, and to restoration of a modified provision in November, 1981, were open. Non governmental groups were participants. Politicians were called upon to publicly state their positions. Any such public process favoured provisions on the rights of aboriginal people. The legislative history for section 35 of the Constitution Act,'- 1982, gives little guidance as to what the provision means or was intended to mean . The section was the result ofpolitical bargaining . It reflects a broad consensus in Canadian thinking that the aboriginal people have been denied their rights and have legitimate claims against the Canadian state. It confirms that the aboriginal people are not now viewed simply as economi- cally deprived or as victims of discrimination . Section 35 accepts aborig- inal claims to special rights based, directly or indirectly, on their traditional control of the lands we now know as Canada. The provisions on the rights of aboriginal people in the Constitution Act, 1982, are a re-emergence of issues which were featured in constitu- tional documents from 1763 to 1930 . Constitutional provisions on aborig inal peoples are found in the Royal Proclamation of 1763,3 the Constitution Act, 1867,` the Manitoba Act, 1870,5 the Rupert's Land and North- Western Territory Order, 1870,6 the British Columbia Terms of Union, 1871, the Ontario and Quebec boundaries extension Acts of 1912 $ and the Constitution Act, 1930.9 The provisions vary. Iu The Royal Proclamation, the Manitoba Act, the Rupert's Land and North-Western Territory Order and the Ontario and Quebec boundaries extension acts have provisions recognizing aboriginal territorial rights, usually by requiring compensation for their extinguishment . Provisions on the establishment of reserves are found in the British Columbia Terms of Union and in the Constitution Act, `C. lI (U.K.). 3 R.S .C. 1970, Appendix 1 . 4 30-31 Viet., c. 3 (U .K.). 5 R.S .C. 1970, Appendix 8. ' Ibid., Appendix 9. 7 Ibid., Appendix 10. 8 2 Geo. V, cc. 40 and 45 (U .K.). 9 R.S .C. 1970, Appendix 26. '° These constitutional provisions are described in Lysyk, The Unique Constitutional Position ofthe Canadian Indian (1967), 45 Can . Bar Rev. 513; Sanders, op. cit., footnote 1 . 19831 Aboriginal Rights 31 7 1930 . But this history has little to do with the provisions ofthe Constitution Act, 1982, other than the role it played in aboriginal claims .litigation in the 1960s and 1970s. Aboriginal questions re-emerged in Canadian life, in the years after the second World War forreasons distinctive to that period . The provisions of the Constitution Act, 1982, should be seen against the political and legal history of the post-war period. Reforms were necessary in Canadian Indian policy after the second World War . Indians were clearly second-class citizens . They were denied the vote." They had separate and unequal schools. They had no legal access to liquor. They were excluded from family allowances . The Indian Act12 maintained old prohibitions against the potlatch and the sun dance, as well as a bar on collecting money to advance land claims . A Special Joint
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