The Constitution…cont’d

1. The Constitution…cont’d the living tree doctrine: a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times. must be read within the context of society to ensure that it adapts and reflects changes

2. A house built on a foundation of sand is unstable, no matter how beautiful it may look and how many people rely on it. It would be better to lift the house and place it on a firmer foundation, even if this would create some real challenges for people in the house. Ultimately, this would benefit all within the house, by prolonging the life of the structure and creating benefits for its inhabitants for generations beyond what would be possible if it collapsed because of its unsupported weight.1 John Borrows, “Questioning Canada’s Title to Land: The Rule of Law, Aboriginal Peoples and Colonialism” in Law Commission of Canada & British Columbia Treaty Commission, eds., Speaking Truth to Power: A Treaty Forum (Ottawa: Law Commission of Canada, 2001) [hereinafter Speaking Truth] 35. as quoted in Treaties vs. Terra Nullius: “Reconciliation,” Treaty-Making and Indigenous Sovereignty in Australia and Canada (as citation 1), Angela Pratt, Indigenous Law Journal, Vol.3, Fall2004, p.44 https://tspace.library.utoronto.ca/bitstream/1807/17116/1/ILJ-3-Pratt.pdf

3. Royal Commission on Aboriginal Peoples (RCAP) • The Royal Commission on Aboriginal Peoples (RCAP), in its preamble to its summary of recommendations, urges that a "renewed relationship between Aboriginal and non-Aboriginal people in Canada be established on the basis of justice and fairness."1

4. Terra NulliusDoctrine of Discovery • RCAP recommends that Canadian governments acknowledge that the "concepts ... of terra nullius and the doctrine of discovery are factually, legally, and morally wrong.“ • Urges Canadian governments to declare "that such concepts no longer form part of law making or policy developments by Canadian governments.4

5. Natural and Roman law5 and included in European common law traditions, "continuous use and possession of the land from time immemorial"6 legitimated land title. • The doctrine of discovery, consequently, gave the discovering power, or party, the first right of occupation if there were no previous inhabitants. Secondly, if there were inhabitants, the discovering power had the first right to trade with, and to negotiate with, the newly discovered people(s) issues of allegiance, sovereignty, and land sharing.

6. Canadian Journal of Law and Society • Volume 17 No. 2, 2002Contents • Michael AschFrom Terra Nullius to Affirrmation : Reconciling Aboriginal Rights with the Canadian Constitution http://www.utpjournals.com/cjls/CJLS-172.html • AbstractThe Canadian state presents itself as tolerant, anti-colonial and self-critical. Yet, the legal justification for the Crown's acquisition of sovereignty and jurisdiction concerning Indigenous peoples and their lands, relies on the colonial era doctrine of terra nullius which is based on the proposition that Indigenous peoples were sufficiently inferior to enable the Crown to presume that their territories were unoccupied.This paper discusses how the doctrine of terra nullius becomes applied in Canadian law and its limitations as an acceptable proposition at this time in history. It then discusses and evaluates alternatives to that doctrine which have been proposed in various quarters in order to determine the possibilities for the conceptualization and establishment of a political and legal relationship between First Nations and Canada that is post-colonial in its approach and practice.

7. Age of ‘Discovery’ • Because most of the new found lands had inhabitants, and the traditional legal doctrine hindered expansion, the term "terra nullius" changed to mean lands that were uncultivated according to European standards i.e., where the inhabitants had no fixed residences but roamed the territory like "wild beasts in a forest” • Spanish colonizers drew upon Aristotle's teaching on 'natural servitude.‘ • some settlers denied the very humanity of the Indigenous populations • Australian film, online, Terra Nullius • http://www.nfsa.gov.au/digitallearning/mabo/mabo_03.shtml

8. Laws have to………. • Meet legal challenges and approval of citizens. • They must be enforceable. • Should present a balance between competing interests. • Should do what they are intended to do. • Be within the jurisdiction of the authority making the law. • Must be constitutional!

9. Canada: Written and Unwritten Components • Written components include the Constitution Acts, 1867 & 1982, including the Charter of Rights and Freedoms • Two parallel acts: Canada Act, 1982 (UK) and the Constitution Act, 1982 (Canada) • Canada could now amend without UK approval • full political and constitutional independence • Unwritten conventions are also important, and influence some of the most vital aspects of governance in Canada

10. Canada’s Constitution • The British North America Act was passed by the British parliament in 1867 and was proclaimed into law on July 1st • It established Canada as a country with John A. Macdonald as its first Prime Minister. • While the BNA act recognized Canada as a separate political entity, it still couldn’t make changes without Britain’s approval.

11. CHARACTERISTICS OF CANADIAN CONSTITUTIONAL SYSTEM • Unwritten traditions + • Written text • Fundamental Organizing Principles 1) Federalism 2) Democracy 3) Rule of Law 4) Protection of Minorities Source: Dr. John Borrows

12. the four principles, up close • Federalism • Division of powers • federalism as a response to political & social realities (indeed, we wouldn’t have Canada without it) • Democracy • associated with majority rule • evidence: popular franchise as the basis for selecting governments • problems: executive dominance, PM’s undelivered “democratic reform” proposals • Constitutionalism/Rule of Law • all public power must find its source in a legal rule • Protection of minorities • limited protections in 1867 (religion, language) • Charter, 1982 (aboriginal rights, s. 15) • limits: reasonable limits (s. 1), “notwithstanding (s.33) • big role for courts

13. Federal System • While deciding what system to use in Canada, the Federal system seemed the best choice. • Sir George Etienne Cartier • Under a Federal System, the responsibilities for governing were divided between two levels of government, the central government and the provincial government. • Each government had their own jurisdictions but the Feds could override a provincial law if it was seen as not in the best interest of all Canadians. • Because it came from the BNA Act, it includes the monarch as the head of state and the principle of the rule of law.

14. Division of Powers in Canada • Section 91 of the BNA act outlined the federal government’s powers, usually matters that applied to everyone, such as postal service or currency. • Section 92 outlined the provincial governments powers, such as education. • Provinces delegated their responsibilities to municipal governments for local matters.

15. Banking Foreign affairs Criminal Law Public debt Defence Trade and commerce Postal service Penitentiaries Education Health care Labor and Trade unions Property and civil rights Compensation to injured workers Marriage Federal ____ Provincial

16. Doctrine of Ultra Vires • Government may make laws only in its own jurisdiction. • Called Intra Vires, within the power of government to pass laws. • If a government attempts to pass laws out of its jurisdiction it would be said to be Ultra Vires, beyond the power of government to pass laws.

17. A house built on a foundation of sand is unstable, no matter how beautiful it may look and how many people rely on it. It would be better to lift the house and place it on a firmer foundation, even if this would create some real challenges for people in the house. Ultimately, this would benefit all within the house, by prolonging the life of the structure and creating benefits for its inhabitants for generations beyond what would be possible if it collapsed because of its unsupported weight.1 John Borrows, “Questioning Canada’s Title to Land: The Rule of Law, Aboriginal Peoples and Colonialism” in Law Commission of Canada & British Columbia Treaty Commission, eds., Speaking Truth to Power: A Treaty Forum (Ottawa: Law Commission of Canada, 2001) [hereinafter Speaking Truth] 35. as quoted in Treaties vs. Terra Nullius: “Reconciliation,” Treaty-Making and Indigenous Sovereignty in Australia and Canada (as citation 1), Angela Pratt, Indigenous Law Journal, Vol.3, Fall2004, p.44 https://tspace.library.utoronto.ca/bitstream/1807/17116/1/ILJ-3-Pratt.pdf

18. Plural Legal Orders • ‘Legal orders’ may be understood as the norms, rules and institutions formed by a society or group of people to ensure social stability. • found in every part of the world, North and South, and in all types of political systems, democratic as well as authoritarian • Example of state legal orders: • Indigenous peoples’ legal orders are recognised as law • Latin America, Scandinavia and South Asia, as well as states such as Canada, the United States, Australia and New Zealand

19. John Borrows • First Nations (FN) law is a fact of life that has persisted • Canadian law on Aboriginal peoples evolved from “inter-societal” law • FN law forms part of the family of legal traditions in Canada, can be a more general resource • FN legal sources can be translated to be accessible to outsiders

20. CHARACTERISTICS OF CANADIAN CONSTITUTIONAL SYSTEM • Unwritten traditions + • Written text • Fundamental Organizing Principles 1) Federalism 2) Democracy 3) Rule of Law 4) Protection of Minorities Source: Dr. John Borrows

21. CHARACTERISTICS OFABORIGINAL LEGAL SYSTEMS • Orally based • Customary • Kin and Clan • Stories • Ceremonies • Elders or recognized keepers • Restorative/Retributive aspects Source: Dr. John Borrows

22. Early Aboriginal History • Peace • Trade • Religion • Settlement • Intermittent Wars • Preservation of Way of Life Source: Dr. John Borrows

23. ABORIGINAL Peace and Friendship Gifts Regularized meetings Wampum exchanged NON-ABORIGINAL Peace and Friendship Gifts Regularized meetings Proclamations EARLY CONSTITUTIONAL RELATIONS Source: Dr. John Borrows

24. Archeological evidence11,000 years • rules in place to regulate everything from sports to politics • cooperative economic system • seven autonomous districts • Timeline: http://www.muiniskw.org/pgHistory2.htm

25. Wampum belts • The Mi’qmaq were part of the Wabanki Confederacy of independent clans led by patrilineal chiefs who met at intervals for regional consultations • used wampum belts of rows of coloured beads to record consultations and transactions. • Council discussions were recorded on Wampum Belts by each tribe to record its history. • Rows of coloured beads were used to record meeting transactions. • Reading Wampum belts demanded special skills in decoding

26. Royal Proclamation of 1763 A source of Aboriginal title to land in Canada stems from King George III’s “Royal Proclamation” of 1763. • designed to “normalize conditions in [the new British] colonies … and to avoid a costly Indian war on the frontier.”17 • “decreed that Indian peoples should not be disturbed in their use and enjoyment of the land,” and that land held by Indians was to be purchased by the Crown only (not by individuals), and only with the Indian peoples’ consent.18 • constitutes an important example of mutual recognition on the part of Indigenous people and British colonizers of each other’s status as independent and self-governing nations.19 • Watch: http://wn.com/Royal_Proclamation_of_1763 http://www.bloorstreet.com/200block/rp1763.htm

27. The Royal Proclamation is still often referred to by First Nations as a “positive guarantee of First Nation self-government.” John Borrows

28. Burying the Hatchet Ceremony • On June 25, 1761, a “Burying of the Hatchet Ceremony” was held at the Governor’s farm in Halifax. • During the ceremony, treaties of peace and friendship were signed between Governor Jonathan Belcher, President of His Majesty’s Council and Commander-in-Chief of the province, and the Chiefs from the Mi’kmaq Nations called “Merimichi,” “Jediack,” “Pogmouch,” and Cape Breton, on behalf of themselves and their people:

29. CONSTITUTIONAL RELATIONS CIRCA 1867 • Treaties • Provisions • Non-Aboriginal assertivenessand dominance • Confederation passed without Aboriginal input (except in case of Manitoba’s entry into the Dominion; Peter Cope Mikmaq) Source: Dr. John Borrows

30. SECTION 91 (24)CONSTITUTION ACT, 1867 …the exclusive Legislative Authority of the Parliamentof extends to… Indians, and Lands reserved for the Indians. Source: Dr. John Borrows

31. Constitutional Framework The Constitution Act, 1867, (U.K.) 30 & 31 Vict., c.3. 91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and the House of Commons, to make Laws for the Peace, Order and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces, and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subject next hereinafter enumerated; that is to say, – … 24. Indians and Lands reserved for Indians.

32. 1867-1973: Discontinuities Indian Act 1876 Limited Political Participation Outlawed Religious Freedoms Outlawed Economic Pursuits Residential Schools Limited Access to Courts Waning of treaty signing & fulfillment of promises Explicit Assimilation Policies Relocation Reserve & Membership Cut-off Abo. Women lose power Mistreatment of veterans Inuit relocations 1951 Indian Act Amend. Over-Incarceration Child welfare 60’s scoop Source: Dr. John Borrows

33. 1867-1973: Continuities Treaty Making & Recognition Continuation of Customary Law Resistance Cultural Adaptations Political and Legal Advocacy Spirituality & Language Underground Practices White Paper Rejected Calder Source: Dr. John Borrows

34. 1973-1982 • Increased awareness of civil rights • Rise of Aboriginal political power • Comprehensive & Specific claims policy • International Pressure (Lovelace) • Patriation of Constitution Source: Dr. John Borrows

35. SECTION 15, CHARTER OF RIGHTSAND FREEDOMS Every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination… Source: Dr. John Borrows

36. SECTION 25, CONSTITUTIONACT, 1982 Charter Rights not to be construed to abrogate or derogate from Aboriginal, Treaty or other rights and freedoms that pertain to Aboriginal peoples Source: Dr. John Borrows

37. Constitutional Framework Canadian Charter of Rights and Freedoms, Being Schedule B to the Canada Act, 1982, (U.K.) 1982, c.11. 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

38. SECTION 35, CONSTITUTIONACT 1982 • The existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed. • …“Aboriginal peoples of Canada” includes the Indian, Inuit, and Metis peoples of Canada. (3) …“treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. (4) …the Aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. Source: Dr. John Borrows

39. 5 RELEVANT TERMSOF DEFINITION • Existing • Aboriginal Rights • Treaty Rights • Aboriginal Peoples of Canada • Recognized and Affirmed Source: Dr. John Borrows

40. Ngurrara Canvas, 1997 "Home... Telling the Court about our Country" Australia. Colossal size (measuring eight by ten metres) : ten careful, colourful harmonised patchworks, each denoting a different story, a different place, a different piece of evidence of connection and attachment to land. In 1997, the canvas was presented to the National Native Title Tribunal as evidence of ancestral, social, economic and personal connections to land. The idea of painting the canvas was that of Ngarralja Tommy May's: "... we were wondering how to tell the court about our country. I said then if kartiya [Europeans] can't believe our word, they can look at our painting. It all says the same thing. We got the idea of using our paintings in court as evidence.“ Source: http://www.aboriginalartdirectory.com/news/feature/ngurrara-the-great-sandy-desert-canvas.php