Legislation must not erode aboriginal rights

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As published in the Ottawa Citizen, January 20, 2013

For almost 15 years, the federal Department of Justice has conducted a campaign to erode the constitutional and legal status of aboriginal and treaty rights in Canada. In doing so, it has also campaigned to reduce the role of Parliament in its oversight of such rights.

How has this happened?

Aboriginal peoples have a central place in Canadian history and in contemporary Canadian life. The relations between aboriginal peoples and the Crown have figured prominently in Canada’s constitutional and political evolution.

Those relations have not always been constructive or just. Treaties have often been one-sided and continue to be violated. Laws, such as the Indian Act, have often been oppressive. We all live with that legacy.

The patriation package of constitutional reforms in 1982 offered some new thinking. Section 35 of the Constitution Act, 1982 recognized and affirmed the existing aboriginal and treaty rights of aboriginal peoples, and guaranteed these rights elevated constitutional status.

Many aboriginal peoples hoped that section 35 would guarantee aboriginal and treaty rights as strongly as federal and provincial powers are guaranteed under the Constitution. As treaties with aboriginal peoples are themselves the products of many compromises, it seemed counterintuitive that the courts would permit one party to those treaties — the Crown — to be able to unilaterally re-work those compromises in its favour. This was reflected in the inclusion of section 35 in a separate part of the Act than the Canadian Charter of Rights and Freedoms, which placed it outside the reach of the limitations contemplated by Section 1 of the Charter.

Subsequent court decisions, notably the 1990 Supreme Court of Canada in R. v. Sparrow, determined that constitutional protection for aboriginal and treaty rights is not absolute, that, in limited circumstances they could be “infringed” by new laws. But the court did try to set the bar high. Only laws that have a valid legislative objective, and that could be justified against a series of tests involving such things as consultation and accommodation, consistent with the honour and good faith of the Crown, could validly infringe. The court later added that the Crown’s duty to consult would require the full consent of the aboriginal nation “on very serious issues.”

Up until 1995, new federal laws routinely included a “non-derogation” provision, which provided comfort to aboriginal peoples that new legislative projects were not designed to have unintended side-effects that would be hostile to aboriginal and treaty rights.

But in laws drafted since 1995, the Department of Justice has experimented with replacing the clear non-derogation language with many weaker variations, which have trended towards a blurring of, and eventual overturning of Parliament’s previously clear presumptive intention not to diminish aboriginal and treaty rights in new legislative projects.

For quite some time, this campaign went undetected. When it was spotted by aboriginal representatives, and brought to the attention of parliamentarians, the Senate Standing Committee on Legislative and Constitutional Affairs investigated and produced a thoughtful report in December 2007, supported across party lines, titled “Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights.”

The Senate committee urged that the federal Interpretation Act be amended to include a general presumptive rule that new laws be interpreted to uphold rather than erode aboriginal and treaty rights. This presumption could be rebutted; Parliament would, consistent with the Constitution and court rulings, maintain the power to infringe aboriginal and treaty rights, but would reserve the discretion carefully to itself. This Interpretation Act approach has already been employed in Manitoba and Saskatchewan at the provincial level, with no practical problems.

The Department of Justice ignored the Senate recommendations.

With the wording of a proposed new law, the Safe Drinking Water for First Nations Act, the campaign to erode the constitutional and legal status of aboriginal and treaty rights has come full circle.

For the first time, a new law would include an active “derogation” provision; that is, the proposed law explicitly states that aboriginal and treaty rights deemed to be in conflict with the law’s stated objective will not be respected. And for the first time, a new law would contradict promises made to aboriginal peoples in treaties as to the interpretive primacy of those treaties.

Many aboriginal peoples are desperate for improved water supply after decades of federal underfunding. In a cruel feature of the new law, eligibility for future federal funding support for improved water services would be tied to willingness to live under the new derogation regime created by the proposed law.

The new law has been developed without the required consultation with those affected. There has been no respect for the “free, prior and informed consent” test that has been embedded in the 2007 United Nations Declaration on the Rights of Indigenous Peoples, a universally accepted human rights declaration that the federal government now claims to endorse.

All of this, of course, is bad news for aboriginal peoples. But perhaps equally disturbing for all Canadians is the technique adopted in the new law that allows future erosion of aboriginal and treaty rights to be carried out through the executive branch of government by way of regulations.

Regulation writing is, of course, the special province of Department of Justice officials. Unlike the case with new statutory proposals, which must go through three readings and committee review at House of Commons and Senate stages, Parliament has virtually no say with respect to new regulations.

Canada’s highest court has affirmed that the respect and protection of existing aboriginal and treaty rights is an underlying constitutional principle and value. Given Canada’s colonial history toward aboriginal peoples, the responsibility of Parliament is particularly important in safeguarding the rights and interests and dignity of aboriginal peoples, and the reliability and durability of their fundamental rights. Parliament must not surrender its responsibility to Department of Justice officials, who would prefer that any debate as to how much respect be given to aboriginal and treaty rights be conducted behind bureaucratic closed doors.


The opinions expressed here are supported by the following organizations:

And the following individuals:

  • Jim Aldridge, Q.C., Aldridge & Rosling Barristers and Solicitors
  • Dr. Rachel Ariss, University of Ontario Institute of Technology
  • Constance Backhouse, C.M., O.Ont., F.R.S.C., University Research Chair, Faculty of Law, University of Ottawa
  • Marie Belleau, Student-at-Law, Nelligan O'Brien Payne LLP
  • Andrée Boisselle, Assistant Professor, Osgoode Hall Law School, York University
  • Karen Busby, Professor of Law, Director, Centre for Human Rights Research, University of Manitoba
  • Larry Chartrand, Associate Professor, Faculty of Law, University of Ottawa
  • Gail Davidson, Lawyer
  • Susan Drummond, Associate Professor, Osgoode Hall Law School, York University
  • Bryce Edwards, Olthuis, Kleer, Townshend LLP
  • Harvey A. Feit,Professor Emeritus, McMaster University
  • L. M. Findlay, M.A. D.Phil. D.Litt. F.R.S.C., Professor of English and Distinguished Chair, University of Saskatchewan, President, Academy One (Arts and Humanities), The Royal Society of Canada
  • Shelley A.M. Gavigan, Professor, Osgoode Hall Law School,York University
  • Kimberley Gilson, Barrister & Solicitor
  • Veryan Haysom, Barrister & Solicitor
  • Sakej Henderson, IPC
  • D. Ann Herring, PhD, Professor, Department of Anthropology, McMaster University
  • Beverley Jacobs, Mohawk Nation, Barrister & Solicitor, Ohsweken, ON
  • Sébastien Jodoin, Trudeau Scholar & SSHRC Doctoral Fellow, Yale School of Forestry & Environmental Studies
  • Paul Joffe, Barrister and Solicitor
  • Roger Jones, LL.B. IPC
  • Kate Kempton, Olthuis Kleer Townshend LLP
  • Annie Khatchadourian, Marianopolis College
  • Nancy J. Kleer, Olthuis, Kleer, Townshend LLP, Aboriginal rights lawyer
  • Lorraine Y Land, Olthuis Kleer Townshend LLP
  • Lois Leslie, Barrister and Solicitor
  • Peter Leuprecht,, Professor of Public International Law, Former Dean Law Faculty, McGill University
  • Wilton Littlechild IPC, International Chief of Treaty 6, 7 and 8
  • Katherine Lofts, Associate Fellow, Centre for International Sustainable Development Law
  • John S. Long, Professor, Nipissing University
  • A. Wayne MacKay, Yogis and Keddy Chair in Human Rights, Professor of Law, Schulich School of Law, Dalhousie University
  • Kent McNeil, Professor, Osgoode Hall Law School, York University
  • Matthew McPherson, Lawyer, Olthuis Kleer Townshend LLP
  • Professor Errol P. Mendes, Editor-in-Chief, National Journal of Constitutional Law, Faculty of Law, University of Ottawa
  • John Merritt, Barrister and Solicitor, Ottawa
  • Professor John S. Milloy DPhil  [Oxon], Department of Canadian Studies, Trent University
  • Catherine Morris, Adjunct Professor, Faculty of Law, University of Victoria
  • John A. Olthuis, Olthuis Kleer Townshend LLP, Aboriginal Rights Lawyer
  • Laurie Pelly, Legal Counsel, Nunavut Tunngavik Inc.
  • Richard Preston, Professor Emeritus, Department of Anthropology, McMaster University
  • Brock A.F. Roe, Director, Indigenous Bar Association
  • Dr. Lorna Roth, Professor, Department of Communication Studies, Concordia University
  • Elizabeth J. Sacca, Ph.D., Professor Emeritus, Former Dean, School of Graduate Studies, Concordia University, Montreal
  • Colin Scott, Associate Professor, Department of Anthropology, Director, Centre for Society, Technology and Development (STANDD), McGill University
  • Jaela Shockey, Janes Freedman Kyle Law Corporation
  • Sam Silverstone, Legal counsel for Makivik Corporation
  • Adrian Tanner, PhD, Retired Professor, and Honorary Research Professor, Anthropology Department, Memorial University
  • Professor Norman Zlotkin, College of Law, University of Saskatchewan
  • Joyce A. Green, Professor, Department of Political Science, University of Regina
  • Stephanie Irlbacher-Fox, PhD, Adjunct Professor, Canadian Circumpolar Institute,
University of Alberta
  • Peter Kulchyski, Professor, Native Studies, University of Manitoba
  • Deborah Simpson, Assistant Professor, University of Regina, International Studies Program
  • John D. Whyte, Policy Fellow
  • Johnson-Shoyama Graduate School of Public Policy, University of Regina, Professor Emeritus, Faculty of Law, Queen's University