A Hole in the Middle of the Canadian Constitution
Section 35 and the unresolved question
Did you know that there is a hole in the middle of the Constitution?
As we welcome a new Prime Minister of Canada (who knows how long he will remain in the role) and witness unprecedented chaos across the southern border, it might be time to make sure our own house is in order. And the question I would like to see us begin to address in Canada is the hole in the middle of the Constitution.
For those of you who have been following the Repair Cafe, you know that I write about land-based reparations, why we need them, how they can happen and why this should excite and energize us! I also write about the settler/colonial state and how has us in a bind around imagining a new way forward until we can find new ways of imagining the space we currently inhabit.
Imagine my surprise when, while researching alternatives to the Indian Act, I found a bold articulation of a way to respect treaties and Indigenous sovereignty without introducing new legislation or anything. This was so revolutionary that I couldn’t believe I had not heard about it before.
For the last year, I have been on a quest to see who knows about this provision, Section 35 of the Constitution. The way I phrase it is: Do you know what Section 35 of the Constitution is? The answer is usually no. I found two exceptions: two people who were familiar with Section 35. Both are lawyers who teach this concept to law students, so maybe I wasn’t the only person who missed the memo.
In 1982, as Canada sought to remove Great Britain's colonial influence on its constitution through constitutional repatriation, it added Section 35, which provides for Indigenous rights and title. Section 35 reads, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
However, according to Art Manuel in his book The Reconciliation Manifesto: Recovering the Land, Rebuilding the Economy, this new framework never got put into place and remains an outstanding issue yet to be resolved. Section 37 lays out the means by which this new relationship was to be worked out between Canada and Indigenous Peoples. It made provisions for a conference where these details could be worked out. There were, in fact, not one but four such conferences held between 1983 and 1987 with the mandate of describing self-governing rights and enshrining them in the Canadian Constitution[1].
Unfortunately, nothing came of these conferences. The differences between what First Nation, Inuit and Metis leaders were asking for and what the government of Canada was willing to agree to could not be reconciled. For Indigenous Peoples, recognition of the inherent right to self-govern was non-negotiable. The government was proposing that Indigenous rights should be comparable to the rights of municipalities. This became an irreconcilable difference, resulting in that hole right in the middle of the Constitution.
“The politicians said they would leave the courts to spell out the rights they themselves refused to spell out in the document that the court would use to determine our (Indigenous Peoples) rights. In fact, the fundamental change needed to decolonize Canada is beyond the domestic capacity of the Supreme Court of Canada to decide. But as we have seen in case after case, the Supreme Court has decided substantially in favour of Indigenous rights on virtually every issue and has at times even pleaded with the government to begin to act fairly and lawfully toward Indigenous peoples. That is where we remain today[2].”
In other words, there is, within the Constitution, a way for Indigenous rights and Canadian rights to coexist. If Section 37 were to result in an agreement that allows Indigenous sovereignty over their own territories, Canada could cease to be a settler colonial society. The central governing logic of Canada would no longer require the erasure or absorption of Indigenous Peoples in order to exist. As per the original agreements, Indigenous and non-Indigenous peoples could share this land and exist together. This will require political will, and more. If these systems have been invisible to most Canadians, it will take more than policy implementation for our ways of seeing the world to shift. Other countries have demonstrated that such a shift is possible[3].
In the meantime, let's start talking about Section 35 and the need to see it resolved. It should be about time after almost 45 years. How long do we think is long enough until we seek a resolution?
[1]. Arthur Manuel and Grand Chief Ronald Derrickson, The Reconciliation Manifesto: Recovering the Land, Rebuilding the Economy (Toronto: James Lorimer and Company Let. Publishers, 2017), 97.
[2]. Arthur Manuel and Grand Chief Ronald Derrickson, The Reconciliation Manifesto: Recovering the Land, Rebuilding the Economy (Toronto: James Lorimer and Company Let. Publishers, 2017), 98-99.
[3]. Bolivia under President Evo Morales rewrote their constitution in 2009 as an act of decolonization. Morales argued he was “refounding” Bolivia as a “plurinational state” where Indigenous and non-Indigenous peoples could thrive together.