November 2000 Fraser Forum: A Constitutional Expert’s Last Word
Melvin Smith died a few weeks ago. He spent over three decades in the civil service of British Columbia, many of them as the chief constitutional advisor to the government of that province. In 1981 he was involved in the negotiations with the Trudeau government over patriation of the constitution. More recently he has become one of the few voices raised in this country to question the wisdom and the legality of native land claims.
Recently, The Fraser Institute published what will be, unfortunately, his final reflections on constitutional issues. The title of this Public Policy Source, "Some Perspectives on the Origin and Meaning of Section 35 of the Constitution," is dry and legalistic. But because section 35 states that existing aboriginal and treaty rights would be recognized and affirmed, his paper actually concerns the hottest political potato Canada will have to deal with during the next few years.
In Smith’s view, one of the most unfortunate consequences of the 1982 Constitution is that it handed to the judges of this country the power to make law, for which they are regrettably ill equipped, rather than to interpret it, which is their proper purpose. Generally speaking, judges have embraced their new task with relish. As part of the constitutional balance, in many instances legislatures can deal with egregiously ill-advised judicial decisions by applying section 33 of the constitution, the famous "notwithstanding clause." No such remedy is available to change the effects of judicial lawmaking under section 35, which means that the Supreme Court has the effective power to make Indian law however it sees fit, and no one can undo the damage short of a constitutional amendment.
The next major issue to come before the Supreme Court will raise the question of whether section 35 can justify a "third order" of government distinct from the federal government and the provinces. Up to now, the most basic principle of Canadian government holds that all legislative power belongs either to the provinces or to the central government. Neither Ottawa nor the provinces can voluntarily "give up" their responsibilities to the other without a formal amendment to the constitution, and even less to a fictitious "third order" of government.
This would be a great non-issue but for the fact that some lawyers and many Indians are of the opinion that a claim to an "inherent right of self-government," if shouted loudly enough, actually has constitutional force. Before the Supreme Court of Canada starts fabricating constitutional amendments on the basis of section 35, Smith thought it might be useful to recall how it came into being and the intention of those who drafted it.
Unlike every other provision in the constitutional package hammered out during the decade prior to 1982, there was no discussion between the federal government and the provinces over the scope and significance of aboriginal rights. There were discussions between Ottawa and the native leaders, but no rigorous analysis and no detailed scrutiny by the provinces. There was also a good deal of lobbying in the guise of parliamentary hearings but no negotiation over aboriginal self-government during the hectic first week of November 1981 when so many of the constitutional provisions achieved their final shape. Instead, when Prime Minister Trudeau presented the "final" version later that month, natives redoubled their lobbying. The premiers responded with a series of long-distance telephone calls to arrive at the final wording of section 35. No one knew what the language dealing with aboriginal rights actually meant—though whatever it meant, it was now to be the law of the land.
If you actually read the fewer than 100 words of section 35, it is clear as can be that this part of the constitution is an empty box, an entirely abstract acknowledgement of undefined native rights, and a gesture in the direction of the desirability of future negotiations. In any event, it was certainly true that aboriginal rights clearly did not mean a third order of government. In 1983, for example, Prime Minister Trudeau said at the constitutionally-mandated conference with native leaders that they still had "to define the place of our aboriginal peoples in Canadian society." It is self-evident that if the place of natives had not yet been defined, it could not have been defined as self-government.
The great danger with such gestures and empty constitutional boxes is that they invite the courts to fill them without political deliberations and with whatever content courts think appropriate. Unfortunately courts can only adjudicate, not negotiate, and without negotiation the results are bound to be politically questionable.
Mel Smith is no longer available to assist Canadians in dealing with this problem, but his last publication makes very clear what that problem is.
Barry Cooper is Professor of Political Science at the University of Calgary and Senior Fellow of the Fraser Institute.
David Bercuson is Professor of History, University of Calgary and Director of the Calgary Institute for Strategic and Military Studies.
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