Much is being said these days to mark 30 years since the Constitution Act, 1982 was passed as law in this country. The Constitution Act 1982 contains the Charter of Rights and Freedom and much of the focus of discussions is based on the Charter.
The Constitution Act, 1982 contains two main provisions regarding “aboriginal” peoples of Canada. S. 35 Recognizes and affirms the rights and title of aboriginal peoples and defines who aboriginal people are. S. 25 is to shield aboriginal and treaty rights and freedoms from the provisions of the Charter so as not to abrogate or derogate those rights.
I wanted to reflect on the years preceding the passage of the Constitution Act, 1982 and the First Nations efforts to try and enshrine effectively and appropriately the rights and title of First Nations.
First Nations were aware of Pierre Elliot Trudeau’s intentions to bring the constitution home to Canada and sever all ties with England. Across Canada, Chiefs and other First Nations leaders met on many occasions to devise a strategy on how best to enshrine the rights and title of First Nation in the constitution in a way that was satisfactory to them. Talks included what those provisions could look like.
I had just graduated from law school and started working with the Indian Association of Alberta in the summer of 1981. The Indian Association of Alberta was working on several things. One was a lawsuit against the Queen Of England asking for a Declaration that treaty and other obligations were still owed to the Indian peoples of Canada by the Crown in right of England. First Nations wanted the Crown in England to ensure that rights were enshrined properly before the constitution was given back to Canada. The lawsuit did not do that as Lord Denning said that the obligations of the Crown of England had already transferred to the government of Canada. He studied the proposed sections 25 and 35 and said that these guarantees should be good for as long as the sun rises and the river flows. It should be noted that s. 35 that was examined by the Court of Appeal in England did not include the term “existing” as this was added after this case.
The Indian Association of Alberta also put together a petition to table in the House of Lords and I spent a month running around the country getting chiefs to sign on the petition.
As a young person I watched the Chiefs come together in strength and unity. I have not ever witnessed this kind of preparation, planning and purposefulness of the Chiefs since then. I remember many meetings where the Chiefs talked of governance, sacredness of the treaties and the need to protect our rights. It was a powerful time in the history of this country. I particularly remember the Iroquois and how they all stood up together and talked of their constitution and the two row wampum belt and how their communities were interconnected. Their message was clear, they had their own constitution and did not want to be part of the Canadian one. I also remember meeting with constitutional experts that helped craft the arguments for the English Courts and how they explained their strategy to the Chiefs for their approval. It was amazing times.
As First Nations we held protests across the country against the proposed provisions of the Constitution. On a cold October night in 1981, 10,000 plus First Nations people rallied outside the Legislature of Alberta. The Premier and some of the other premiers were meeting inside about the constitution. The media tried to downplay the numbers but we knew how many people were there as we had a count on the number of buses communities used. I organized the security for the rally and knew as well the numbers. Similar rallies took place across the country. We raised our voices as First Nations to no avail as the provisions of the constitution as proposed with the addition of the term “existing “ added to treaty and aboriginal rights and title” was adopted despite the protests and voices.
So, 30 years later, were the fears about proper and appropriate entrenchment of rights well founded? I believe they were and still are. There have been many cases tried based on s. 25 and 35 of the Constitution, some that have helped First Nations assert rights and title and others that did not.
One thing the constitution has done is to place the onus of proof on First Nations to prove their rights and title. Often the tests for determining rights and title are unknown until a case comes before the court and then the tests are defined. The onus should be on the Crown to prove they have a right to be here and take possession of First Nations lands and limit or regulate First Nations rights.
The courts have said the government can infringe or abrogate our rights within limits and balancing our rights with the public interest. Why have constitutional rights if they are not fully protected? As we watch the weakened environmental processes and law being approved by the Federal Government, we will see a lot more cases challenging the Federal Government’s ability to do this in light of s. 35 and the right to be consulted and accommodated.
The insertion of the term “existing” narrowed down what was existing at the time of the coming into force of the constitution. A further encroachment of our rights.
Modern day treaties have insisted that First Nations be subject to carrying out the terms of the Charter like the Federal and Provincial governments even though s. 32 of the Constitution stated who the Charter applies to and it is not First Nations. This is a heavy burden for First Nations to carry.
Many key decisions have been made since the Constitution Act 1982. Sparrow, Delgamuukw, Haida, Taku, Marshall I and II, Gladstone, Van der Peet, Mitchell, etc. Doing a case analysis of these cases would be a lengthy paper, but each of these cases has impacted policy and law and how First Nations do business.
We have never had a First Nations person on the Supreme Court of Canada. If you look at the 30 years of cases under the Constitution, and other cases determined before them, it would not seem to leave a lot of room for one Justice to change the direction of the courts. Would love to see the opportunity opened up for First Nations person on the bench as you just never know what could happen.
First Nations over the years have worked hard to have our rights recognized, protected and ensured for future generations. First Nations have used the courts and the constitution, protests or blockades, political pressure and lobbying within Canada and internationally, education, and asserting our rights to maintain who we are and continue to exercise our rights. We had had many warriors through the years who have taken our struggles to a higher level. When the Constitution Act 1982 was enacted, there were very few law firms who dealt with First Nations rights and title. Today, it is a huge industry and there are many law firms who specialize in First Nations and the law. It is through many years of efforts by First Nations to create awareness of our issues. Our issues are not yet election issues and when they become that, much more could happen in our favour.
This work and struggle will continue and there will continue to be more court cases as development and rights clash, as First Nations are not properly consulted, as other elements of our rights are affirmed. Trudeau tried to use the White Paper in 1969 to assimilate us and failed. His Constitution Act 1982 is a tool we can use to further our rights and everything that is important to us even though it is not the specific provisions we wanted. Perhaps we can use something Trudeau put in place in 1982 in ways he never imagined. I look forward to the next 30 years and hope that good faith negotiations can occur so the very expensive and lengthy court process does not have to determine our rights further.