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Foreword

The Constitution Act, 1982 has had a number of unintended — one hopes — consequences. One of those is the growing phenomenon of "judge-made law" arising from adventurous interpretations of the Charter. We can be thankful that most of this can, in principle, be dealt with by way of the "notwithstanding clause" if elected legislatures see fit.

A second consequence has been the enduring grievance handed to Quebec separatists to nurture and exploit, as a result of the adoption of the 1982 Act over the virtually unanimous objection of the Quebec National Assembly.

These problems are well known. What is less understood is that Section 35—the subject of this paper—confers upon the Supreme Court of Canada the de facto making of Indian law. No "notwithstanding clause" is available to deal with such astonishing and debilitating judgements as Delgamuukw, which has essentially destroyed the treaty-making process in British Columbia. Absent further constitutional amendment, the courts can tell Parliament what to do without let or hindrance.

The next great question to come before the Supreme Court will be whether Section 35 gives constitutional authority to a third order of government, "of the Indians, by the Indians, and for the Indians," as Abraham Lincoln would never have advocated. This is a fundamental question for the organization of Canadian society, which is already working its way through British Columbia's court system.

Mel Smith was there in 1982, at the centre of the negotiations. He leads us through the fascinating history of Section 35—the slight consideration given, the cosmetic and minimalist intent, the politics involved. This paper will surely be cited to the court in arguing for a restrained interpretation of Section 35 insofar as self-government is concerned, based on the carefully laid-out evidence as to the actual intent of the framers. 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.

Gordon Gibson
Senior Fellow in Canadian Studies
The Fraser Institute

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Last Modified: August 23, 2000.