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The Origin of Section 35

The Parliamentary Committee

The first time that the subject of aboriginal rights was raised was in late 1980, not in the context of federal-provincial negotiations but before a Parliamentary Committee. The timing is important. By mid-September 1980, the intensive federal-provincial round of meetings held throughout the summer to reach agreement on a Patriation package had failed. Prime Minister Pierre Trudeau announced that he would move ahead to patriate the Constitution, complete with a Charter of Rights and his own amending formula, notwithstanding opposition from eight provinces.

On October 2, 1980, Trudeau published the "Proposed Resolution ... respecting the Constitution of Canada," which he proposed be passed by Parliament and forwarded to London for passage by the Parliament of the United Kingdom. However, before taking these later steps the Resolution was referred to a Special Committee of the Senate and the House of Commons on the Constitution of Canada (established by the Senate on October 23, 1980 and the House on November 3, 1980) "to consider and report."

It is important to note that at this point the Trudeau Resolution had no Section 35, or its equivalent, nor did it have Section 25 of the Charter, which states that Charter rights would not derogate from aboriginal or treaty rights. At this point, the only reference to aboriginal rights in the Resolution was the section that preserved "rights" not contained in the Charter "including those that may pertain to native people."

The aboriginal leadership made numerous submissions and lobbied hard before the Parliamentary Committee. As a result, when the Committee reported on February 3, 1981, one of the amendments it recommended was the precursor of the present section 35. It read:

The aboriginal and treaty rights of the aboriginal people are hereby recognized and affirmed.

The federal government accepted the recommended amendment along with several others and these appeared in a revised proposed federal Resolution.

In the book, Canada ... Notwithstanding, Roy Romanow, John Whyte, and Howard Leeson describe these events:

The national Indian, Métis and Inuit organizations in Canada had energetically pressured the Joint Parliamentary Committee to amend the proposed resolution to entrench aboriginal and treaty rights. In a dramatic reversal of policy, the federal government agreed in late January to a number of important changes which, at least partially, met the requests of the native organizations. Section 25 of the proposed resolution, dealing with "un-declared rights," was amended to state that the provisions of the charter could not violate the rights of aboriginal peoples. Section 34 of the resolution was amended to entrench aboriginal and treaty rights. Finally, section 37 obligated the federal and provincial governments to future constitutional meetings with aboriginal leaders on all of the other outstanding issues. The Joint Parliamentary Committee unanimously approved the amendments on 30 January.

The dramatic turnabout by the federal government in accepting the changes was matched by the enthusiastic endorsement of the amendments by the native leadership. The National Indian Brotherhood had earlier advocated wide-sweeping and important amendments, such as Indian government. Denied a place at the CCMC negotiating table in 1980, the position of the brotherhood was that patriation should not occur at that time. The Métis supported this position .... The result was that the National Indian Brotherhood launched a campaign in Great Britain against the failure in the proposed federal resolution to meet its demands. (Romanow, Whyte, and Leeson 1984: 121-22)

The important point to stress is that this section did not have its origins in, or survive the rigours of, the detailed federal-provincial negotiation to which the rest of the Patriation package was exposed. Indeed to this point there was no direct provincial involvement whatsoever.

Federal-Provincial Negotiations

Because of the combined opposition mounted in London by eight of the Provinces, which was having the desired effect upon British Parliamentarians, and because, in September 1981, the Supreme Court of Canada decided that for Ottawa to seek these amendments without greater provincial support would be a breach of constitutional convention, Mr. Trudeau delayed proceeding with his unilateral constitutional package. One further attempt at reaching an agreement among the federal and provincial governments was attempted. Those meetings took place in Ottawa during the week of November 2, 1981 and on November 5, 1981 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 that week of November 2 were in no wise preoccupied with the subject of aboriginal rights. All of the discussion focused around the proposed Charter of Rights (and several of its components but not the aboriginal component); the amending formula, including a possible override provision; a possible referendum for constitutional amendments; minority language rights, and so on. In fact, it is my distinct recollection—and I attended all the meetings, including those of a plenary nature and those at which only one Premier, one Minister and one official from each province were in attendance—that the subject of aboriginal rights was not raised during the whole four days. This should not come as a surprise. As pointed out above, the subject of aboriginal rights had, during all the years I had been involved, never been on the table of federal-provincial constitutional negotiations. First Ministers' Conferences with the aboriginal leadership had never been held up to that date.

In that famous late-night session of November 5, convened in Premier Blakeney's suite, a representative from most of the provinces met to cobble together a proposal that might provide an acceptable compromise. I represented British Columbia at that meeting. As a framework for our effort, we took the revised federal resolution, which of course now contained the provisions on aboriginal rights that had been added as a result of the recommendation of the Parliamentary Committee previously described.

On this issue, Romanow, Whyte, and Leeson state:

In their meeting that late Wednesday afternoon, the three provincial ministers had discussed whether aboriginal rights should be included in the accord. The provision which had been added to the federal resolution by the joint parliamentary committee was now under heavy criticism from most of the aboriginal groups. At the meeting of officials Leeson, knowing Blakeney's views on this issue, urged that the officials should recommend to the premiers that aboriginal rights be maintained in the accord in the form set out in the federal resolution. [Mel] Smith said that his government had strong reservations because almost none of British Columbia had been ceded by the Indians to the province through treaties. There was an uncertainty about the legal effect of this historical fact; the other provinces reluctantly acquiesced to this argument. (Romanow, Whyte, and Leeson 1984: 209)

The statement attaches far too much importance to my powers of persuasion. The fact of the matter is that there were several provinces that had serious reservations about the aboriginal rights provisions. These same authors seem to admit as much.

In the last hours of the November meeting, the question of the scope and meaning of aboriginal rights, which had become more pressing because of the ongoing political and legal actions in London by native organizations, influenced many of the participants to exclude the provisions of section 35 from the embryonic accord. Entrenchment of those rights in the form of the proposed section appeared to be against the wishes of most aboriginal organizations.

This was not the only reason for the deletion of the section. The constitutional demands of native organizations were not fully understood by the participants since they had never had the careful consideration by ministers and officials that the other issues had received. Some of the provinces were particularly worried about the possible implications of such constitutional rights upon traditional provincial legislative jurisdiction. In addition to the uncertainty generated within the governments with respect to these objectives, the first ministers, ministers, and officials were mesmerized by the tantalizing prospect of achieving a constitutional accord, at long last. The nature of the last minute negotiations—complex, occasionally bitter and hurried—militated against any careful consideration of the entrenchment of aboriginal rights. (Romanow, Whyte, and Leeson 1984: 212-13)

Robert Sheppard and Michael Valpy, in their book The National Deal, recounted the events somewhat similarly:

The only "sticky part" of the meeting, one of the quartet recalls later, was the debate over native rights. The two native rights clauses in the resolution—the affirmation of rights and the promise to hold a conference with native leaders to define these further—are in both the Blakeney and Peckford proposals. But B.C. has historically never recognized aboriginal title to vast tracts of land in that province and insists that the clauses be deleted. ¹ They discuss this point for about fifteen minutes, during which time some of the officials speak by phone with their respective delegations. In the end, the two native rights sections fall to the floor. (Sheppard and Valpy 1982: 293-94)

These accounts of that event are substantially correct except that my main reason for opposing Section 35 at that time was that the provision had never been the subject of careful deliberation or, indeed, any deliberation in the federal-provincial context. It seemed to me that, since it was agreed that there would be a provision requiring a conference between first ministers and aboriginal leaders to deal with aboriginal issues, the prudent course was not to include the Section 35 clause at the time but rather to leave it to be discussed at the up-coming conference.

To sum up, when Prime Minister Trudeau unveiled, on November 18, 1981, the further revised proposed Resolution that had been the basis of the agreement of November 5 between the federal government and the nine provinces, it contained only the non-derogation clause (Section 25) and the requirement to convene an aboriginal conference within one year (Section 36). Section 35 was not included. On November 18, Trudeau introduced this Resolution into Parliament.

Second Thoughts

Following the unveiling of the "final" Resolution on November 18, fierce lobbying took place from two quarters. Women's groups were deeply upset by having the override provision apply to the sexual equality clause and aboriginal organizations, which had been ambivalent about the draft aboriginal clause, suddenly united in demanding it be included. Native groups swarmed into Ottawa and massive demonstrations took place in provincial capitals. The main-stream media added its voice in support of these causes as did the federal New Democratic Party (NDP). It was all too much for the provincial premiers who "folded like omelettes" as one commentator put it.

Premier Lougheed proposed to his fellow premiers, in a series of long-distance telephone calls, that the word "existing" be added to the clause "aboriginal and treaty rights are hereby recognized and affirmed" and that the Resolution be amended accordingly. The provinces (except Quebec) and the federal government agreed. A fresh Resolution containing this clause (and an amended over-ride clause to make it inapplicable to equality rights) was then introduced. It was passed by the Commons on December 2 and by the Senate on December 8, 1981. The Resolution was then transmitted to the Parliament of the United Kingdom for passage and the amendments came into effect on April 16, 1982.

Concerning these last-minute changes and constitution-making by long-distance telephone, Romanow, Whyte and Leeson make these interesting observations:

On 12 November the Saskatchewan premier promised leaders of the Saskatchewan Indian organizations that, if the accord were re-opened, he would resurrect the original section on aboriginal rights. The commitment was made, however, without any expectation that the accord would, in fact, be reopened so quickly. In agreeing to the proposed new wording for section 28, Saskatchewan insisted that constitutional recognition of aboriginal rights be also included. Some of the other provinces, particularly British Columbia and Alberta, were neither prepared for nor desired this position. But now the political pressure was mounting for them to incorporate this measure. Lougheed, after several days of silence, acquiesced to the change if the word "existing" were added to the constitutional provision that aboriginal and treaty rights "are hereby recognized and affirmed." On 23 November [Minister of Justice Jean] Chrétien announced to the House of Commons that all of the signature provinces had agreed to changes to women's and aboriginal rights. Thus, the unsettling period of bilateral negotiations over long-distance telephone ended. It was a strange way by which to settle important and complex legal and social questions, and consider their long-term ramifications but, perhaps, no less perplexing than many of the other decisions and events which transpired during this momentous period of Canada's history. (Romanow, Whyte and Leeson 1984: 214)

It is important to stress that this long-distance constitution-making was essentially an exercise involving only the Premiers and not having the usual deliberation of ministers and their senior officials. I remember being consulted (as Deputy Minister, Constitutional Affairs) on the new wording very briefly and under extreme time pressure. 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. I have no doubt this was also the case within other provincial jurisdictions. Virtually nothing has been written that suggests there was any serious analysis as to what the words meant. If anyone had suggested (which they did not) that in 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.

The fact is that the premiers and the Prime Minister had a political problem and including the amended clause, whatever it meant, was deemed to be the way to solve it. I have already emphasized that this and other aboriginal issues had not to this time been the subject of federal-provincial negotiations. They had been raised in an entirely separate process, that is, in the Joint Parliamentary Committee.

Bryan Schwartz, who was a Manitoba delegate to these conferences and very much an insider, makes this telling comment in his book, First Principles, Second Thoughts: Aboriginal Peoples, Constitutional Reform and Canadian Statecraft:

Ordinary citizens, politicians, and jurists were not better informed about the meaning of s.35(1) than they were when the process began; it was as unclear what interests were encompassed by "aboriginal and treaty rights," and how much protection they were offered by s.35(1). Better preparation by the participants and more forthrightness in stating their positions might have led to greater progress. (Schwartz 1986: 102)

In my book, Our Home or Native Land?, I write this about the origin of Section 35, both the 1981 version and the amended version of 1983:

Sad to say, the full import of what they were agreeing to was not even understood much less discussed. I know, I was there. Others support that view. Looking back after the passage of several years, one astute observer who interviewed Premiers, Ministers and officials engaged in these Conferences said this:

Many respondents felt that those sections of the amendment package relating to aboriginal peoples were not well understood by governments, nor perhaps by aboriginal peoples. (The package was agreed to at the last minute by First Ministers after a very short discussion of its merits.) Elements of the package were not thoroughly discussed, there were few preliminary meetings, and there was little agreement on what the terms of the amendment meant. Many governments considered the commitment to be narrow in scope, while others interpreted it more widely. Interviewees from both governments and aboriginal peoples' organizations spoke of governments being "backed into" this commitment, with the result that the commitment was not strong, and the understanding not deep. (Smith 1995: 146-47; citing Hawkes 1989: 9-10)

The 1983 Aboriginal Conference

The First Minister's Conference with Aboriginal leaders mandated by Section 35 of the Constitution Act, 1982 was held in Ottawa on March 15 and 16, 1983. Preparatory meetings with officials identified a list of subject-matters that the aboriginal leadership placed on the agenda. These included "every issue of possible constitutional concern to aboriginal peoples" (Schwartz 1986). "Aboriginal Self-government" was item 3 on the agenda but so broad were the subjects stated that self-government could have been discussed under at least four other items as well. 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 preoccupation to deal with the subject at the 1983 Conference.

Not surprisingly the two-day 1983 Conference hardly scratched the surface of the agenda. I have reread the verbatim transcript of the 1983 Conference and the subject of self-government was scarcely touched upon.

In his opening statement, Prime Minister Trudeau made the following observation:

Our meeting marks a fresh start in the pursuit of the joint purposes we set in motion last year. We are finally dealing for the first time with a constitution which is our own, close now to all Canadians, to the many peoples and ethnic groups who make their home in this broad land. We are dealing with a constitution which still needs to define the place of our aboriginal peoples in Canadian society.

This is hardly the kind of statement which the Prime Minister would have made if there was any thought on the federal government's part that Section 35 of the Constitution Act, 1982, had already entrenched aboriginal self-government.

The opening statement of the Métis National Council put it this way:

The purpose of our participation in this conference is to entrench in the constitution the right of the Métis people to a land base and self-government ... We believe we must have these rights entrenched in the Canadian constitution to fulfil our Métis destiny.

In the same vein, the spokesman for the Native Council of Canada near the conclusion of the Conference had no doubt that the conference had not reached any agreement to entrench any rights for their people. He stated:

We are certainly not completely satisfied with what has come out of this conference over the past two days because it does not entrench any rights for our Métis and non-status Indian people in terms of what we came here for and what this conference was called for but we will sign the accord on the basis that at some future date we are going to get an opportunity to put our rights in the constitution as they should be.

Grand Chief Ahenekew, head of the Assembly of First Nations (AFN) stated at the beginning of the conference that their priority was to secure the constitutional entrenchment of aboriginal governments. He stated:

We hold as our first priority the commitment to continue to assert and secure constitutional entrenchment of the rightful place of Indian governments within the Canadian federation.

I have already indicated above that the First Ministers' agreement of late November 1981 to add Section 35 with the word "existing" was done by long-distance telephone and without the usual serious federal and provincial deliberation. In his opening statement at the Conference, Premier Lougheed gave an illuminating review of those events and the meaning to be given to the word "existing." He stated:

I would like to start out to outline some of the background events which led up to this conference, which I think has been appropriately viewed as historic. Like most other provinces, Alberta had its first direct real involvement with the aboriginal constitutional issue in November, 1981. The federal government had previously held discussions with aboriginal leaders which led to an aboriginal rights provision in Section 34 of the federally proposed constitutional text.

That provision recognized and affirmed treaty and aboriginal rights. As a party to the consensus on the constitution in the fall of 1981, Alberta had to determine where it stood on the proposed rights provision.

Our difficulty, Mr. Chairman, was that the force and the scope of the aboriginal rights provision was unclear. The government of Alberta supported, and still does fully support, existing aboriginal and treaty rights. The proposed aboriginal rights provision was open to the interpretation, however, that it would create new aboriginal rights that were not previously recognized in law. Not having been part of the earlier discussion between the federal government and Indian leaders, the Premiers on November 5, 1981, were not prepared to include any additional provisions without understanding fully what was being requested and the consequences of such requests.

Mr. Chairman, Alberta recognizes the importance of this issue to the aboriginal peoples of Canada. In November of 1981, we worked closely with the Alberta Métis leaders and others to develop an alternative wording which would satisfy our respective concerns. The present recognition and affirmation of existing aboriginal and treaty rights in Section 35 of the Constitutional Act, 1982, is the result of that cooperation.

I wanted to outline this recent history today, Mr. Chairman, because I understand that the inclusion of the word "existing" in Section 35 has been a subject of considerable concern among aboriginal representatives at the preparatory meetings which have preceded this conference. In response to the concern, I want to emphasize that the intent of the Alberta government in agreeing to the present wording of section 35 was neither to freeze the legal status quo of aboriginal and treaty rights for all time, nor to deny any modern treaty or agreements between governments and aboriginal peoples the protection of Section 35. In effect, it was a commitment by governments to protect those aboriginal rights which exist now and to recognize those which may come into existence as a result of this conference.

Considering the background and without wishing to debate specific agenda items at this time, Alberta is unwilling to remove the word "existing" from Section 35. Any consideration of the removal of the word "existing" can only come about after an agreement has been reached not only on the definition of these rights, but also on a full understanding of their implications and their consequences. (My emphasis)

Near the conclusion of the Conference, Georges Erasmus of the AFN responded to Premier Lougheed as follows:

Just before we leave item 1, there were a few items that were not covered yesterday and we do want to register our feelings on them for the record.

One of the items that was not discussed at all was the question of the removal of the word "existing." We understand Alberta's feelings and in private meetings with the provinces, et cetera, and including the federal government, it was our understanding that by and large "existing" is something that governments want to maintain at this time, but we want to make it very clear to yourselves and to this country that we want that term removed and we are going to continue to work to have that removed. (my emphasis)

To this general overview of the 1983 Conference must be added a more careful and detailed examination. This is vital to understanding the origin and meaning of Section 35(3).

The most thorough account of the proceedings of the four Aboriginal conferences held in the 1980s is that produced by Bryan Schwartz of the Faculty of Law at the University of Manitoba. Professor Schwartz was a Manitoba delegate to these conferences and, therefore, very much an insider. His book, First Principles, Second Thoughts, is a classic account of those events (see Schwartz 1986).

The federal government circulated a federal proposal on the first afternoon of the 1983 Conference that did not bear the support of a number of the provinces so that the essential work of refining the federal proposal took place that evening in a closed ministerial level meeting. Drafters worked through the night to prepare a legal draft but all decisions were to be subject to the approval of First Ministers. At that meeting, there was agreement that there should be further constitutional conferences to deal with aboriginal issues. (You will recall that the Constitution Act, 1982 had only required one such meeting). There was general agreement that there should be a clause guaranteeing sexual equality with respect to the rights of the aboriginal peoples.

The late-night drafting in federal hands saw the introduction of a clause to amend Section 35 to have it extend to future land-claim agreements. Although one aboriginal group had lobbied for such a clause for some months on a Canada-wide tour, the provision was not contained in the federal draft of the previous day nor had it been discussed at either the first day of the conference or the evening meeting of ministers. In short, the provincial delegations had no opportunity to discuss it before it was added to the federal proposal.

When the revised federal draft was unveiled on the second morning of the 1983 Conference, as Schwartz points out, the Attorney General of British Columbia, Mr. Williams, complained that on the previous evening, only the amendments on sexual equality and ongoing process had been agreed to: "other than that nothing was agreed and I don't know where these words come from" (1986: 99). Further discussion at the plenary session on the second day indicated there was some debate whether the federal draft had properly reflected the previous evening's discussion. On the suggestion of Premier Bennett, the matter was referred to another back room session to attempt to iron out the difficulties.

Further amendments were made to the modern land-claims agreement provisions that Schwartz states were "as a result of last minute discussions which hardly anyone could have fully followed, understood and evaluated" (1986: 100).

At the conclusion of the two-day 1983 Conference, 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.

Subsequently, nine provincial legislatures and parliament passed the resolutions and the Constitution was amended accordingly in 1984.

Section 35, as amended now reads:

35

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in sub-section (1) are guaranteed equally to male and female persons (SI/84-102.)

About the outcome of the 1983 Conference, I say this in Our Home or Native Land?:

At the first such Conference in March 1983, agreement was reached to amend the meaning of "treaty rights" in section 35 to include rights contained in existing or future negotiated land claim agreements. This was an amendment which, in the context of current land claim settlements, is of enormous importance. The amendment nullified half of the meaning of the word "existing" for the clause would now relate to all future treaties and land claim agreements as well as those existing in 1982. It is not certain that the Premiers of the day fully understood what the implications of the amendment might be. They may well have considered it highly technical and had their attention diverted to the more politically catchy agreement made at the same Conference guaranteeing aboriginal and treaty rights equally to male and female persons. (Smith 1995: 144)

The Ongoing Quest to Entrench Self-Government

The centrepiece of preparatory meetings leading up to the second conference in 1984 and the 1984 Conference itself focused on the attempt to entrench self-government into the Constitution. The effort was unsuccessful. As Schwartz sums up, all four of the conferences "failed almost entirely to better define, or even discuss in any length, the legal implications of section 35 of the Constitution Act, 1982" (1986: 353).

One must ask again why the preoccupation of the second and subsequent aboriginal conferences would be to entrench self-government in the Constitution if, in fact, it had already been entrenched by virtue of the 1983 amendment to Section 35(3).

Notes

¹ Bill Bennett said in an interview later that he might not have signed the accord if the native-rights sections had been left in with the original wording.

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