47. AMENDING THE CONSTITUTION AND OVERIDING HAIDA NATION JURISPRUDENCE

The basis of our political system is the right of the people to make and to alter their constitutions of government- George Washington1

A State without the means of some change is without the means of its conservation. Without such means it might even risk the loss of that part of the constitution which it wished the most religiously to conserve. – Edmund Burke, Reflections

Wrong turns teach us the right way. – David Mitchell 2

We are a country of laws and law-abiding people. This is a fundamental part of our British heritage. Peace, order and good government, not the American “pursuit of happiness” (which, if there was a Canadian version of that, would be the “pursuit of niceness”), was the focus of our constitutional beginnings.

Throughout our history, the strength of our collective respect for legislative and judicial authority has been so great and constant that even when these authorities, through laws, policies and decisions, undermine that very sovereign authority, and by so doing jeopardize the continued existence of it, Canadians mainly passively and deferentially accept it. Consistent with this civil and honourable almost-to-a-fault reality, change, if it is ever to come, must and will only be brought about by lawful means.

The present legal position of Indian elites and other members of the Indian industry, who all want more of the status quo, is rock solid. Advocates for the abolition of the reserve system and the restoration of absolute and paramount Crown sovereignty presently don’t have a legal leg to stand on. And advocates of lesser ameliorative solutions – granting greater private property rights to reserve Indians, making governments payments to Indians individually rather than to bands, or granting and supporting mobility rights to young Indians to encourage them to move off the reserves- while well-intentioned- and while these suggestions, if ever implemented, would represent excellent progress- are being naive.

Section 35 of the Canadian Charter of Rights and Freedoms, presently a virtually immovable part of the constitution of Canada, renders all such lesser solutions unconstitutional. Theoretically they could be implemented, but only with the consent of the bands who chose to opt in to them. And as quickly and easily as they opted in, so could they opt out. And those private property rights would really not be private at all. They would at best be leasehold rights granted by a band over a particular property, subject, as is the case today, to cancellation or non-renewal in accordance with the vagaries and uncertainties of prevailing band political winds.

In any event those lesser solutions would be the exception to the rule. And the rule, as laid down by the band chiefs and councillors and all the other insiders in the Indian industry, is that because fundamental change is harmful to their economic and power interests, it’s simply not going to be allowed to happen.

Section 35 of the Charter, passed in 1982, recognized and confirmed aboriginal and treaty rights of aboriginal peoples in Canada. It is this constitutional law, which is higher than any law passed by any legislature, and which no legislature can violate, which provides the primary legal foundation for Haida Nation and the successive, de-stabilizing, devolutionary and otherwise socially, economically and politically harmful higher court decisions which have built on it.

Any steps taken by Ottawa or any of the provinces to fundamentally change the status quo, short of amending the constitution by repealing section 35,  would be unconstitutional, plain and simple.

But constitutions are not intended to stay the same forever. They can and should be amended when circumstances warrant.

The American constitution, usually to improve some negative state of affairs,  has been amended twenty-seven times! One of its amendments was to abolish slavery. Another was to give women the right to vote. There’s no doubt now that it desperately needs amending again- even a complete overhaul- if America is to be freed from the venal grip of its treasonous (to its best traditions, instincts and values) plutocratic, robber baron elites.

Many countries in Europe have had several different constitutions over the one hundred and fifty year era of European constitutional democracy, demonstrating well the old adage that nothing is writ in stone.

The makers of the Constitution Act, 1982, of which the Canadian Charter of Rights and Freedoms is a part, knowing that future generations might feel the need to amend it, built in an amending provision. So to amend our constitution in the way I am proposing would not be doing something undemocratic, as will most certainly be loudly decried. Rather it will be doing something totally consistent with the wording of the constitution, something which the makers of it expressly contemplated would and should happen in appropriate future circumstances.

The status quo we now have in this area of Canadian life was originally premised on a view of Canada as an almost endless wilderness interspersed by rural, agricultural areas, which Indians would become an assimilated and productive part of.

The unforeseen modern reality we now have is that tragically, the vast majority of Indians, with the constant exception of their extremely well-to-do, powerful, well-travelled and well-fed elites, have become a permanently segregated, largely urban or urban-oriented, almost invisible underclass of Canadian society. It clearly hasn’t worked out as the signers of the treaties envisaged.

As with the Crown honour principle, when facts change, minds and conduct  should change accordingly.

As a starting point for change therefore, section 35 of the Canadian Charter of Rights and Freedoms would have to be repealed. In order to do this a great public debate would have to be started. Provincial referenda and a federal referendum would have to be held and the referenda question  receive substantial approval. The Senate and the House of Commons and two-thirds of the provinces representing at least fifty per cent of the population of Canada would all have to pass appropriate resolutions. In addition, constitutional conferences would have to be held, involving the Prime Minister, the premiers of the provinces and representatives of the Indian peoples of Canada.

At the same time as section 35 is repealed, section 25 of the Constitution Act, which exempts Indians from the Charter of Rights and Freedoms (as stated above, they are presently quite free, because of this most illiberal provision, to discriminate against each other and against their fellow citizens on the basis of race, creed, religion, ancestry etc.) would also have to be repealed.

Just simply stating all this- as if it were all that simple- in almost child-like fashion as I do-( One can imagine any member of the Indian or non-Indian establishments, if he or she ever read this, incredulously saying: “Is he crazy or stupid or what?”- Perhaps-perhaps not.)- highlights clearly how, as stated above, this whole effort would have to be elevated to the political and moral status of a national undertaking- a national mission-with attendant risks and disturbances to be stoically and resolutely endured-  akin to other similar, risk-bearing nation-building and nation-defining undertakings Canada has courageously engaged in, ultimately successfully, in the past.

The accomplishment of these constitutional changes would then set the legal stage to surely, effectively and predictably, as much as humanly possible, begin the long process of bringing Indians into the Canadian family as true equals.

  1. Farewell Address, 17 September 1796.
  2. The Bone Clocks, above

By: Peter Best