Principle 2: Reconciliation and the Constitution

(This article is part of a series analyzing the Canada Federal Government’s “10 Principles respecting the relationship with Indigenous peoples”. Click here to start over at the beginning.)

Principle #2 Reads:

2. The Government of Canada recognizes that reconciliation is a fundamental purpose of section 35 of the Constitution Act, 1982.

Breaking it down

Reconciliation is a fundamental purpose of section 35 of the Canadian Constitution.

“The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982.” – Chief Justice Lamer, Delgamuukw

Section 35 – which is not part of the Charter – exists to recognize and affirm existing Aboriginal rights and Canada’s historic treaties. It does not clearly define what those rights are, merely acknowledging that they exist. Court cases have gone some way to defining rights such as hunting and fishing and Aboriginal title.

Of course, there was no concept of reconciliation in 1982 when the Trudeau government was embarrassed into including section 35 in the Constitution at the last minute. Do the subsequent court decisions or the conduct of the Crown indicate that there has ever been any true commitment to the idea that “reconciliation is a fundamental purpose of section 35”?

Have governments in practice ever treated any relationship with Indigenous peoples as nation-to-nation, rather than as a parent dealing with wayward and demanding children? While stating this concept in theory, have the courts acted on it, or are they trapped in a system that means Aboriginal rights are only defined in the context of the laws, norms and practices of the dominant colonial culture?

This looks not like reconciliation, but a very Canadian form of continued colonization.

It has been argued that section 35 itself reinforces colonialism by recognizing Aboriginal and treaty rights only in the context of settler law and norms. Can it be used to reconcile the two? Or do we need to go beyond the Constitution to create the actual nation-to-nation relationships that are necessary for true reconciliation? What would that mean here in British Columbia where most of the land is not subject to treaty?

The fact is that section 35, so reluctantly ‘granted’ and subsequently besieged by the Crown in the courts, could be used as a legal basis for reconciliation. But for it to do so is going to require radical changes to the way settler institutions and people view and relate to Indigenous institutions and people. Is this possible?

Can those changes be made in the context of colonial laws and institutions like the Constitution and the courts? Or must we determine to do things very differently: breaking out of our entrenched colonial mind-sets; tearing down and rebuilding institutional structures built over 150 years of colonial rule; defining new nation-to-nation relationships built on respect, co-operation and a view to the common good; a vision for a new economy that respects Aboriginal and treaty rights?

Tell us what you think

Is this kind of radical change possible? Where would it start? Are we ready for it? Would it have negative impacts on our economy? Would it ultimately lead us to a post-colonial Canada? What would that look like?

Let us know what you think about the role of section 35 in moving us all into a post-colonial Canada. Leave a comment below and add your voice to the dialogue.

Next: Principle #3 – The honour of the Crown

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