Time to End Section 35?

Commentary, Aboriginal Futures, Peter Best

Canada achieved it’s now-waning state of greatness through the application in its governance of over a century of classic liberal social, economic and political principles. Liberalism, (not to be confused with the illiberal dogmatism practised by the Liberal Party of Canada), was defined by Canadian writer Adam Gopnick in A Thousand Small Sanities, (Basic Books, New York, 2019), his excellent book on the pre-eminent virtues of classic liberalism, as “…an evolving political practice that makes the case for the necessity and possibility of (imperfectly) egalitarian social reform and ever greater (if not absolute) tolerance of human difference through reasoned and (mostly) unimpeded conversation, demonstration and debate.”

There are several timeless classic liberal principles of political philosophy that in the past 40 years have been abandoned by all our political elites, and that if restored and adopted by any political party would make it, in the eyes of most of mainstream Canada, the occupant of the politically moral high ground and the party of daring reform, compassion, competence and adult responsibility. 

The first is the principle of absolute and sole Crown law-making sovereignty and authority. Historically in Canada, since its inception, there were only two founts of Crown sovereignty: Ottawa and the provinces. Under this constitutional regime, solely regulated by federal and provincial laws, Canada went from being a tenuous rural/wilderness nation in the 19th century to a strong, modern and very-accomplished nation in the 20th and 21st centuries, governed by the strong rule of law- a beacon to the world. We owe everything we have to this dual-sovereignty regime, characterized by a clear system of hierarchical control, the latter of which author Robert Kaplan describes as “the ordering principle of domestic politics.”

Now, as the result of Supreme Court of Canada decisions, foolishly expanded upon by our governments, that dual-Crown sovereignty regime has been seriously diminished and undermined. The Supreme Court, again, fully endorsed by our elites, has mandated a partial devolution of Crown sovereignty to First Nations, resulting in their existence as a de facto third fount of constitutional sovereignty, who must be consulted and accommodated in relation to any corporate or government project proposed to take place in what any nearby Indigenous band loosely regards as their “traditional lands”, and, in Aboriginal title areas of Canada, regarded as virtual co-equals. The Canadian state, particularly in the area of large resource projects, a huge part of the Canadian economy, has been shorn of its full and sovereign law-making and law-enforcing powers, with the inevitable results of major resource projects being cancelled or delayed, a dwindling of predictability and trust in the marketplace, the flight or diversion of capital from Canada, and, as evidenced by the recent unchecked Indigenous blockades in British Columbia and Ontario, a serious and dangerous diminution of the rule of law. I can think of no other liberal country in the world where this situation is permitted to exist.

There is another result of this new, de facto, tri-sovereignty regime. Despite utopian predictions of how this “nation to nation”-oriented regime would improve the lives of Indigenous Canadians, the opposite has happened. All the indicators of social success show that despite all these new Indigenous powers, the situation- which structurally is essentially one of benign, unintentional and illiberal quasi-apartheid- just keeps getting worse for the vast majority of powerless and marginalized Indigenous Canadians. More power and money won’t improve their situation. Only structural change will, which can only occur under the old dual-sovereignty regime under which Canada became the great nation that it is today.

In 1790 the great conservative philosopher Edmund Burke, in Reflections on the Revolution in France, his magnificent rebuttal to the anti-liberal utopians in France who were bent on destroying France’s past and all its present authority in order to forge a “brave new world”, wrote that “the house of commons cannot renounce its share of authority. The pact of society forbids such surrender. The constituent parts of a state are obliged to hold their public faith with each other and with all those who derive any serious interests under their engagements. Otherwise competence and power would soon be confounded, and no law left but the will of a prevailing force.”

 Economist Brian Lee Crowley of the MacDonald-Laurier Institute has written to the effect that Canada’s real resources are not our natural resources. Rather they are our “more important endowment of rules, institutions, and behaviours…the rule of law…a moderate, predictable and stable taxation and regulatory burden.

We experienced with the 2020 Mohawk rail blockades and the Wet’suwet’en blockade of the Coastal GasLink pipeline, (the latter justified by the not-unreasonable and entirely illiberal legal position that “Canadian law” does not apply in the Wet’suwet’n “traditional territories”), the entirely predictable consequences of shorn, diminished and undermined Crown sovereignty.

The Supreme Court and all our political elites have wrongfully, in the name of distinctly anti-liberal “progressivism”, which, as Adam Gopnik writes, eschews the gradualist, liberal idea that “reform has to pass through the living room before it should move through Parliament”, renounced a significant share of our Crowns’ “share of authority” in favour of First Nations, and permitted First Nations to argue that they are in effect sovereign “substates” within the state of Canada. In so doing these elites have broken “their public faith” with Canadians and with their “serious interests”, such as promoting equality under the law, the rule of law and the proper working of the marketplace- all fundamental tenets of classic liberalism.

Secondly, by permitting First Nations reserves to be the locus of essentially non-Indigenous, non-traditional, non-tax-paying businesses, (for example cigarettes, marijuana and the untaxed impact benefit agreements revenue from non-Indigenous, off-reserve-sited resource projects), they are permitting attacks against the revenue of the state to occur. As written by Burke, “the revenue of the state is the state. In effect, all depends on it, whether for support or for reformation…It is the spring of all power, it becomes in its administration the sphere of every active virtue…Through the revenue alone the body politic can act in its true genius and character.” To the extent that tax revenue is siphoned off to tax-free First Nations, our governments are further hampered in their ability to provide for the needs of all Canadians, including Indigenous Canadians.

 As predicted by Burke, the federal and provincial governments’ “competence and power” have been confounded by this illiberal, “progressive” fragmentation of sovereignty, diminishment of the power of the state and of its revenue, and of Mr. Crowley’s strong rule of law, to the detriment of all. And all this in the unthinking, ahistorical and illiberal name of “progress.” And all this contrary to the above fundamental liberal principles, which in their application, have created the fantastic world we Canadians are so lucky to live in. 

Thirdly, as stated above, it is a fundamental liberal principle that all citizens of a country should be treated equally under the law. This is not the case in Canada, where Indigenous peoples, based on the deeply conservative, (and scientifically fallacious), progressivism-endorsed notion of “blood ties”, are to a large extent governed by different laws than the rest of Canadians. They exist under a kind of “separate but equal” legal regime, reminiscent of America before the civil rights movement of the 1960’s. The historical reasons for this are well known. But true liberals in Canada, citing Nelson Mandela, Martin Luther King and Gandhi, should be daringly and openly advocating that this situation, being totally illiberal and thus unacceptable in 21st century Canada, and which is producing such catastrophic consequences for the vast majority of powerless, marginalized Indigenous Canadians, should be reformed.

Such reform can only start with the repeal of section 35 of the Constitution Act, which gives so-called unique rights to aboriginal peoples, a daunting but morally heroic task and goal, followed by the repeal of the Indian Act and the phasing out of the ghetto-like, Indigenous reserves.

The restoration of basic Enlightenment, liberal principles would set any Canadian political party positively and completely apart from the other parties. By bravely going back to our nation-making liberal roots and policies they would set out an inspiring mission for Canada, which even though it would require profound legal reforms and take years to accomplish, and would encounter ferocious opposition from deeply conservative, vested interests, would inspire the admiration, respect and support of most Canadians, and would deeply tap into Canadians’ rich vein of liberal, racially decent, “better angels” instincts towards equality, peace, order and good government.

Peter Best has practised law in Sudbury for the past 45 years. He is the author of There Is No Difference: An Argument for the Abolition of the Indian Reserve System, (thereisnodifference.ca) which has been endorsed by retired Supreme Court of Canada justice Jack Major.