Third order of aboriginal government not intended by framers of the Constitution
Contact:
Gordon Gibson, Senior Fellow in Canadian Studies
The Fraser Institute
Telephone: (604) 737-7878
Email: gordong@fraserinstitute.caRelease Date: 14 September 2000
VANCOUVER, BC — The expansive meaning given by treaty proponents to Section 35 of the Constitution is not supported by either the circumstances of its passage or its plain meaning, said Mel Smith, respected commentator and former constitutional advisor, in his final published paper examining aboriginal treaty rights.
The paper, "Some Perspectives on the Origin and Meaning of Section 35 of the Constitution Act, 1982," was released today by The Fraser Institute.
As one of BC's key representatives during the negotiations in the early 1980s, Smith knew that its framers did not intend Section 35 to provide constitutional authority to a third order of aboriginal government.
Controversial at the start, Section 35 stated that the existing aboriginal and treaty rights of the aboriginal peoples of Canada would be recognized and affirmed under the new Constitution Act. However, Smith cautions that "The important point to stress is that this section did not have its origins in, nor survive the rigours of, the detailed federal-provincial negotiation to which the rest of the Patriation package was exposed."
Smith delved into the origin of Section 35 and discussed in detail the November 1981 meeting, where an agreement was reached between the federal government and nine of the ten provinces that led to the long sought patriation of the Constitution.
"The long and difficult discussions that occurred during the meeting were not preoccupied with the subject of aboriginal rights. This should not come as a surprise since during all the years that I had been involved, the subject of aboriginal rights had never been on the table of federal-provincial constitutional negotiations," said Smith.
The unveiling of the "final" resolution on November 18 was met with fierce lobbying. The pressure ultimately led the federal government and the provinces (except Quebec) to agree on adding the word "existing" to the original clause.
"From British Columbia's perspective, I considered the addition of the word "existing" to be an improvement but no serious analysis was done as to what the clause meant. If anyone has suggested (which they did not) that in the later years the words would be interpreted to include the constitutional recognition of a third order of government, he would have been laughed out of court," recalled Smith.
The First Minister's Conference with Aboriginal leaders mandated by Section 35 of the Constitution Act, 1982 was held in Ottawa on March 1983. "One cannot help but ask why, if it was seriously considered that the right to self-government was implicitly contained within Section 35 of the Constitution Act, 1982, there was such a pre-occupation to deal with the subject at the 1983 conference," says Smith.
Despite the fact that the force and scope of the aboriginal rights provision was unclear and the proposed aboriginal rights provision was open to interpretation—particularly that it would create new aboriginal rights that were not previously recognized in the law—an agreement was reached between the federal and nine provincial governments to amend the Constitution to provide for further aboriginal conferences; to shore up the equality provision; and to extend the scope of Section 35(1) to future land-claim agreements.
"Section 35 of the Constitution Act, 1982, as amended, has been interpreted in an expansive manner far beyond what was ever intended by its framers. Frankly, the Supreme Court of Canada has been unduly influenced by the views of certain academics in arriving at its expansive views," concluded Smith.
Colleague and fellow commentator Gordon Gibson, writes in the preface to the paper, "Mel Smith was there in 1982, at the centre of the negotiations. This paper leads us through the fascinating history of Section 35-the slight consideration it was given and the politics that were involved-this work will surely be cited to the court in arguing for a restrained interpretation of Section 35. It is an important document, written by the pre-eminent legal practitioner of the BC government involved in the drafting, and a great service to the underlying debate on the future of Canada."
This paper is Smith's last published work on aboriginal affairs, and is the
final legacy of his long and distinguished career.
Established in 1974, The Fraser Institute is an independent public policy organization based in Vancouver, with offices in Calgary and Toronto.
For further information or for a copy of Some Perspectives on the Origin and Meaning of Section 35 of the Constitution Act, 1982 contact:
Suzanne Walters, Director of Communications,
The Fraser Institute, (604) 714-4582,
Email suzannew@fraserinstitute.ca
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