The year 2012 presented a milestone in Canadian history, marking three decades since the affirmation of existing Aboriginal and treaty rights in Section 35 of the Constitution Act.
In the May 2012 edition of CGE, Bob Watts and Vanessa Watts-Powless wrote of Section 35 that “(t)he recognition and respect for our rights and freedoms is far less evident today than what seemed possible then.”
When discussions concerning the repatriation of the Constitution began gaining momentum in the late 1970s, First Nation, Métis and Inuit representatives saw an opportunity to re-vitalize the relationship between Indigenous communities and the Canadian state. Since the adoption of this recognition into the Constitution Act, 1982 there has been significant effort to define the extent of Aboriginal rights and title through Supreme Court litigation and government policy developments.
Despite this recognition, questions still remained about the nature of Aboriginal rights. For example, what is the nature and content of those rights that are “recognized and affirmed”? What rights are said to be “existing”?
Much of the first cases heard by the Canadian courts on Section 35 rights dealt with establishing tests to determine the content and existence of these rights. These legal tests, in turn, have greatly influenced policymaking within the areas of Aboriginal rights and title. Contemporary Canadian jurisprudence has only more recently begun to address the issue of Aboriginal rights to self-government.
While many Indigenous groups have already, or are currently, engaged in strengthening their own governance structures and exercising greater control over traditional land and resources, few would dispute that the full potential for a changed relationship with Canada created by Section 35 has not yet been realized. The facilitation, negotiation and implementation of more robust forms of Indigenous governance have been very slow in coming. The contemporary dynamics of legal, political, economic and social power place non-Indigenous governments in an advantageous position relative to Indigenous governments. There have been several impediments to progress and nation building: negotiations have stalled and many important Indigenous organizations and institutions have closed doors or suffered significantly from loss of funding.
In November, the Institute on Governance (IOG) held a symposium called “Beyond Section 35” to recognize the need to commemorate this groundbreaking recognition of rights while at the same time to consider the substantial impact that recognition has had on altering both federal/provincial law and policy regarding Indigenous peoples and Indigenous governance in Canadian society. The symposium brought together key stakeholders from Indigenous communities and institutions, practitioners, public sector and academia to discuss and reflect upon the impact of the constitutional recognition of Section 35 on the lives and relations of Indigenous peoples in Canada.
Was Section 35 a “false promise” or a “broken covenant”? Was the box of rights full or empty? These were the fundamental questions that kicked off the symposium by academic Paul Chartrand and lawyer John Olthius. Those involved in Constitutional discussions posited that while Aboriginal participants in the process saw Section 35 as a box full of rights to be unpacked, government representatives perceived it as an empty box to be filled. Regardless, the ensuing 30 years have been spent attempting to define the contents and in the meantime, the legal changes inspired by Section 35 have not had a measureable impact on key socioeconomic indicators. The content of the Section 35 box has slowly come through legislation or negotiated agreements and the movement toward consultation and accommodation through impact benefits agreements does not do justice to the land and resource rights of Aboriginal people.
What is clear, according to participant Chief Justice Ian Binnie, is that the courts will not deliver self-government. Reconciliation is the framework within which we should be moving forward. Reconciliation based on the principles of “honour of the Crown,” “duty to consult” and negotiation.
A panel of prominent leaders discussed their experiences and the challenges and changes that have been faced by Indigenous governments, peoples and communities since S. 35. Former National Chief Phil Fontaine referred to the Kelowna talks as “an unprecedented demonstration of solidarity” between Aboriginal groups and as a significant “missed opportunity” on the part of the government that said “no” to the Kelowna proposals.
Former National Chief Matthew Coon Come noted that (chronically underfunded) self-government efforts have not resulted in simple things like clean water, adequate services, or benefits from industry exploitation. Former Métis Nation of Ontario President Tony Belcourt spoke of a main challenge of the Métis as being recognition: by government, by First Nations, by citizens and community councils; and the ongoing Métis struggle for legitimacy.
Sophie Pierre, the Chief Commissioner for the BC Treaty Commission, emphasized that reconciliation through a treaty is the best way to live up to the promise of Section 35. National Chief Shawn Atleo described self-determination, a fair share of economic benefits, exercising and implementing the inherent right to self government and mutual understanding based on respect and consultation as the way forward.
Many of those at the symposium have spent a lifetime trying to implement various aspects of Section 35 in the face of many obstacles. In all, one might think that disappointment stemming from the Charlottetown Accord, Meech Lake or Kelowna, coupled with the courts urging negotiations while governments are choosing courts in an apparently unending series of small and definitive victories, combined with the glacial pace of self-government negotiations, might have led to the disenchantment and fatigue of the crowd. Interestingly, this was not the case.
In fact, the overall tone of the symposium can be characterized by Paul Chartrand’s plea to audience members to “beat the drum of constitutional change.” Beating the drum became the mantra for participants with pleas for unity among Indigenous groups in areas such as treaty recognition, the acknowledgement of Section 35 (4) which speaks to women’s rights, and the government’s position on “certainty” (the ceding and surrender of Aboriginal rights and title in the context of comprehensive claims and self-government negotiations).
Suggestions for next steps and a way forward? There were many. They ranged from what new arrangements are required, to workable models of governance, to the fundamental building blocks of self-government moving forward. The success of the Ottawa Beyond Section 35 event generated much interest and momentum. The IOG will be partnering with the BC Treaty Commission to hold another Beyond Section 35 in Vancouver this coming February. These constructive dialogues will help shape an applied research agenda to address the key challenges in achieving more fully realized authorities and jurisdictional control.
Marcia Nickerson is the Head of the Institute on Governance’s Indigenous Governance Knowledge Area. Prior to joining IOG, she headed the Aboriginal Practice Group of a consulting and research organization and provided strategic policy advice to the Associate Deputy Minister of Aboriginal Affairs and Northern Development.
(1) The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “Aboriginal peoples of Canada” includes the Indian, Inuit, and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the Aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.