Tansi Nîtôtemtik,
At last week’s Reconciliation: Wahkohtowin Conference, hosted by the University’s Centre for Constitutional Studies, one major discussion was how current Indigenous issues can or cannot be addressed by Constitutional changes or reinterpretations. In the last panel, entitled “Rethinking the Constitution”, speakers Ryan Beaton from the University of Victoria, Ron Stevenson from the Department of Justice, and Naiomi Metallic from Dalhousie University presented their ideas on this topic.
Indigenous people are formally governed by the Crown in a number of ways and via a number of Constitutional provisions. These are section 91(24) of the Constitution Act, 1867, and section 35 of the Constitution Act, 1982. [1]
When faced with an Indigenous claim, the Crown can act in the face of disagreement.[2] This means that even if an indigenous group thinks that the Crown did not consult with them sufficiently, or did not uphold their fiduciary duty in some way, their only option is to file a claim. This claim could take years to make it through the court system, and all the while, the Crown can act on their plans that the indigenous group disagrees with. [3] In Ryan Beaton’s opinion, this is a weak check on the Crown’s sovereignty. He presented the idea that there should be a system or mechanism to review grievances or infringements before they happen, within the context of Indigenous section 35 rights.[4]
Ron Stevenson proposed a modern interpretation of section 35 of the Constitution, 1982. He argued that a shift from a rights-based interpretation (i.e. section 35 allows Aboriginal people their rights) to an obligations-based interpretation (i.e. section 35 means obligations need to be fulfilled by the Crown) would allow for benefits such as deeper understanding, and stronger incentive to reconcile. [5] When asked about what changes could be made, Stevenson presented two ideas: first, that the idea of “claims” should be scrapped entirely, with the implementation of reconciliation-based councils to work out disputes, and second, that there should be a massive investment in the revitalization of Indigenous cultures and languages.[6]
Naiomi Metallic brought forward the idea that section 91(24) can be used in a way to support Indigenous self-determination, stopping the section’s connection to government inaction, denial, neglect, and diminishment of both Indigenous peoples and their rights. [7] Ms. Metallic argued that broad-scope legislation may not be the best way to achieve minimal impairment of rights and that there is a glaring oversight regarding the “singling-out” law.[8] This law is that provincial legislatures cannot make laws to “single-out” or affect one group specifically, yet Indigenous peoples could best be served by specific, focused laws to achieve proper accommodation. [9] When asked, she said one change to be made could be allowing for Indigenous governance, and giving them space, or “breathing room”, to manage their own jurisdictions. [10]
These ideas speak to the fact that we might not need Constitutional change to work towards reconciliation between Indigenous people and the Crown, but perhaps with some new perspective, we can work with what we’ve got.
Until next time,
Team ReconciliAction YEG
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[1] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5, s 91(24); Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35.
[2] Ryan Beaton, “The Crown Fiduciary Duty and Procedural Legitimation of Crown Sovereignty Under Section 35” (Reconciliation: Wahkohtowin Conference delivered at the River Cree Resort, Enoch/Edmonton, 23 September 2017) [unpublished].
[3] Ibid.
[4] Ibid.
[5] Ron Stevenson, “Towards a Modern Theory of Section 35” (Reconciliation: Wahkohtowin Conference delivered at the River Cree Resort, Enoch/Edmonton, 23 September 2017) [unpublished].
[6] Ibid.
[7] Naiomi Metallic, “Please Give Us Some (Constitutional) Breathing Space” (Reconciliation: Wahkohtowin Conference delivered at the River Cree Resort, Enoch/Edmonton, 23 September 2017) [unpublished].
[8] Ibid.
[9] Ibid.
[10] Ibid.
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