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An Analysis Of The Canada Act

Rodney Soonias

1. The British North America Act, 1867, spelling out the respective powers and jurisdictions of the federal and provincial governments in Canada, was enacted by the Parliament of Great Britain. No provision was made for constitutional amendment without the assent of the British Parliament. Even though Canada has since assumed to all intents and purposes an independent sovereign position, amendments to the British North American Act have continued to require enactment by the British Parliament.

2. Practically speaking, this requirement of British assent has not hampered the independent status of the Canadian political system; however, several Canadian parliamentarians have felt this situation to be an anomaly and one requiring change. The process of giving Canada ultimate authority over its constitution has been called "patriating the constitution".

3. With patriation, Britain will be forever relieved of any input or responsibility to the governing of the Dominion of Canada. It also probably means that the special trust and protectorate relationship between Britain and the Indians, arising from treaty and aboriginal sources, could come to an end.

4. The Canada Act in Section 35 states that "existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". The words "hereby recognized and affirmed" merely acknowledge the existence of aboriginal and treaty rights at the time the Canada Act is passed and the Constitution Act comes into effect. It further only provides for Courts to take judicial notice of such rights in the construction and interpretation with the other laws of Canada. However, section 35 does not confer any guarantees, protection or entrenchment whatever of aboriginal and treaty rights contrary to what the British and Canadian Governments would have us believe. Section 35 also uses the qualifying word "existing" which was put in at the insistance of the provincial premiers in late 1981.

5. Section 35 (2) states that "aboriginal peoples of Canada includes the Indian, Inuit, and Metis peoples of Canada". Lumping Indians and Metis into the same category further dilutes the special status enjoyed by Indian people today.

6. Part I of the Constitution Act, 1981, is entitled "Canadian Charter of Rights and Freedoms". It essentially guarantees equal opportunity to all people in Canada irrespective of who they are or where they live. How a court of law will view treaty and aboriginal rights vis a vis the equality provisions contained in the Charter is anybody's guess. Section 6 provides for equal opportunity of all citizens of Canada "to pursue the gaining of a livelihood in any province" and prohibits affirmative action employment programs for disadvantaged groups except where "the rate of employment in that province is below the rate of employment in Canada". Even though the overall rate of employment is higher than the national rate, Indian employment remains far below the national rate, and it is therefore unlikely that Indian groups will be able to take advantage of the affirmative action employment programs contemplated.

7. Section 25 declares that "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...". The language in section 25 is not as strong as section 2 of the Canadian BilL of Rights S.C. 1960 C. 44 which provides that "every law of Canada shall not be so construed and applied as not to abrogate, abridge or infringe..." . The effect of the omission of these words is presently uncertain. Even if section 25 precludes the Charter from interpretation so as to alter Indian rights,

An Analysis Of The Canada Act

Rodney Soonias

Treaties will be in place as long as the river runs, the mountain stands, and the buffalo roams...
"...and the Great White Mother shall honor this treaty for as long as the river runs, the mountain stands, and the buffalo roams...or as under subsection Q (para 2) until a duly elected politician chooses to ram through patriation of the BNA Act, see section H, subsection 16 (paras. 6 through 81)."

it does not prevent the federal or the provincial governments from continuing to abrogate treaty and aboriginal rights. It should also be noted that the language of section 25 is distinguishable from sections 21, 22 and 50 (82A(6) which expressly bar abrogation or derogation. Section 25 merely declares that the guarantee shall not be "construed" so as to do so.

8. Nor is there a requirement for Indian consent to the diminishment of aboriginal and treaty rights by amendment or otherwise in all of Part V. For constitutional amendment all that is required is strict compliance with the provisions in sections 38 to 47. These sections do not require Indian consent of agreement.

9. The First Minister's Conference in section 37(2) to be convened within one year of the Constitution Act coming into effect "shall have included in its agenda an item respecting constitutional matters that directly affect the aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in the Constitution of Canada". The Prime Minister shall "invite representatives of those peoples to participate in the discussion on that item". However, the item on the aboriginal people of Canada will be considered in isolation of other items which will have a significant impact on treaty and aboriginal rights. It is therefore unlikely that these rights were satisfactorily considered at that time. Even if discussions on a particular item are favourable towards Indian people, only the Prime Minister and the First Ministers of the province are allowed to vote on the issue. Furthermore, if a favourable decision is made, there is no provision for legislative action to protect and implement these rights.

10. The right to a share of the off reserve natural resources of the province, long asserted by Indian people, has been gutted by section 50 which provides that only the provinces can make laws over the exploration, development, management and conservation of nonrenewable natural resources, forestry resources and electrical energy.

11. Section 52 (2) which sets out those instruments which are to be considered as part of the constitution of Canada does not mention Indian treaties.