Whose law is it anyway? Part 5: ‘We’re facing an assault on the basic framework of Canada’

In an exclusive interview, a judicial official talks to TVO.org about secessionism and whether Indigenous peoples should really be considered “conquered”
By Matt Gurney - Published on Feb 25, 2020
A train travels through Tyendinaga, near Belleville, on February 24, after police removed the rail blockade. (Lars Hagberg/CP)

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This is the final instalment in a five-part series looking at Wetʼsuwetʼen and the law. You can read Part 4 here.

A journalist never knows who’s reading their work. Since last week, TVO.org has been publishing a series that explores the complexities of the ongoing legal crisis between Canadian governments and Indigenous peoples. A few days ago, I received an email from a familiar name. Not a household name, but a familiar one — I had come across it in my research.

This individual is a currently serving judicial official with direct input into some of the more sensitive stories surrounding Indigenous affairs in Canada. They reached out to offer some comments on this series of articles. Specifically, they felt it urgent to address some common misconceptions. “Canadians need to know these things,” they told me. 

What followed was a protracted discussion of how I could get this individual to comment on the record. They wouldn’t. But they were willing to grant me an interview, with a strict guarantee of anonymity, so that they could offer some views from inside the ongoing crisis that they would otherwise not be permitted to express. This individual has no partisan affiliation or agenda. But they have decades of experience with the law, and they are very concerned about some of what they are seeing.

Specifically, they are concerned about the view that Indigenous law can be widely applied in the Canadian context. As we explored in Part 1 and Part 2, there are two related but distinct concepts: Aboriginal law is the cumulative caselaw and procedures regarding relations between Canadian governments and First Nations groups and individuals. Indigenous law is an older notion relating to concepts of law and justice among Indigenous peoples, concepts that may be thousands of years old. Many First Nations groups today continue to seek some form of expression for these concepts. But, as my source warned me, while the concepts may be discussed in an academic framework, they have almost no applicability in a legal framework or, more important, in the daily grind of a Canadian courtroom. They wanted Canadians to know that — and to know why that is the case.

“There’s only one source of recognized legislation in our country,” the source told me. “The Constitution. Section 91 grants the federal Parliament the exclusive right to make laws. Section 92 grants the provincial governments the same exclusive powers. That’s essentially it. There are a few narrow exceptions — the provinces can, under Section 92, set up municipal institutions. Those have strictly limited bylaw-making powers, which are granted by the provincial legislature. There are also ways that parliaments can delegate some regulation-making powers — to agencies, for instance — but those, too, are limited by legislation. It’s very strictly limited and controlled. So, right off the bat, that means that, in our current constitutional arrangements, the notion of a broadly applicable Indigenous law is a non-starter, unless it’s given recognition by legislatures via delegation. In some other narrow exceptions, Indigenous laws — or traditional Indigenous knowledge — can be given legal standing through legislation. That’s perfectly permissible: a legislature incorporates the insights and views into Canadian law. But it’s still Canadian law under the Canadian system.”

The source continued: “Another way that Indigenous laws can be given standing is through private arrangements during contractual arrangements. Parties can agree to be governed by what they choose, and some are tailored to local Indigenous populations. But the mechanisms to incorporate Indigenous law, or treat it as law, are themselves functions of the Canadian state — and very limited in their application.”

To be clear, my interviewee was not hostile to the notion of Indigenous law or to Indigenous self-governance more broadly. But they were adamant that these discussions must take place in a context that is rooted in what is actually achievable under Canadian law or else it’s just setting up more false promises and future disappointments, of which they have seen too many examples.

I asked them whether it would be possible to do this through treaties, and the source agreed that some think it could be. Section 35 of the Constitution Act, 1982 requires that treaties be recognized. But there are both legal and practical obstacles. The legal: it’s established in our law that one part of the Constitution cannot be used to trump another part of it. It cannot add to it, subtract from it, or whittle it down. An example: the religious-equality provisions of the Constitution can’t override the guarantee of Catholic schools in Ontario. That’s been tried several times. In a similar way, even if Section 35 were to include some right of Indigenous law-making, it could not override the Constitution’s allocation of law-making power, which says that only the legislatures and Parliament can make laws.

They then moved on to the practical obstacles: “Laws in this country are territorial in scope. Federal laws, provincial laws — you know where they apply. What are Indigenous territories? Sometimes those issues are settled. Sometimes not. Is it based on race? Who would qualify? How much Indigenous blood would one need, and who would be the decider? The problem of all these challenges is that there’s only one way we could settle the matter — Canadian legislation, Canadian law, and Canadian courts.”

My source was not unsympathetic to Indigenous communities’ frustrations. Far from it. They have had decades of experience dealing with many of these concerns. But they are deeply worried that much of the political rhetoric surrounding these issues is raising expectations to a point that simply cannot be met under our constitutional framework. The source noted that, in Part 2 of this series, I had asked law professor Dwight Newman specifically about whether there could be a realistic risk of a dispute over the basic issue of Canadian sovereignty and its territory, and my source sighed heavily. “That’s a hot potato,” they said. “The Supreme Court has said, twice now in the last decade or so, with almost identical language, that Indigenous peoples were never ‘conquered.’ And that’s curious — in both cases, the comment sort of comes from nowhere. It was not necessary or entirely relevant to the legal question before it. It was a conscious decision on behalf of the court to make that statement.”

The source trailed off and sighed again. “This is a loaded issue because it touches on issues of self-worth and self-identity for Indigenous peoples. But let’s just ask ourselves what it legally means to be conquered. To conquer means asserting your law-making powers over a new territory. To be conquered means to be subject to new laws imposed by the government that now controls that territory. That fact describes all Indigenous peoples living in Canada today, regardless of the details of their specific experience with colonialism. And for the Supreme Court to have suggested otherwise encourages talk of Indigenous peoples being sovereign, and it adds fuel to talk of outright secessionism.”

The source stresses that this could do massive harm to meaningful reconciliation — which they feel is well underway, if obviously incomplete. “Canadian society is becoming more welcoming to diversity every day. We are appreciating the unique struggles and culture of Indigenous Canadians. We are learning to honour and respect the values of our Indigenous fellow-citizens. But just as this is happening, we’re facing an assault on the basic framework of Canada. Blockades are a predictable outcome of this assault. And it impedes the process all Canadians need to make on reconciliation. It makes both sides intolerant, and it’s tragic. It’s tragic.”

I asked them what the solution might be. “Down the road, governments could delegate more powers and more responsibilities and, through adoption of laws or valid delegation, recognize some historical law-making by Indigenous peoples, but that would first require settled land claims. Law attaches to territory. And it would require improvements in First Nations governance so the law could be effectively administered and enforced. But make no mistake. That just means it becomes Canadian law, passed by Canadian legislators and enforced by Canadian courts. Anything more sweeping would require reopening the Constitution, and our current political reality makes that essentially impossible.”

“There needs to be a defence of the Canadian state, not against Indigenous people, but for them,” they said. “There are mechanisms that will work to address their grievances. It won’t be instant, but it can be real. And a lot of the talk about sovereignty and nation-to-nation relations, it moves us further away. And you hear it most from people who have the least actual contact with Indigenous communities and their unique challenges. In rulings back in the 1990s, the Supreme Court was more responsible. It gave Section 35 meaning but tied it down with careful legal tests in practical ways — tangible fishing rights, tangible hunting rights, and so on, and avoided unnecessary and, I think, ill-informed loose historical observations. They drafted their reasons very carefully, and look at what they didn’t draft. There was nothing starry-eyed touching upon sovereignty and throwing around words like ‘conquered.’ It’s a responsible way to define the legal scope of Indigenous rights in this country.

“Talking about people never being ‘conquered’ and prompting thoughts of sovereignty against the Canadian nation-state undercuts the basic framework of this country. And it will undercut the progress I’ve seen in my career. And I find that very frustrating. The people who said these things should have known better.”

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