THE CONSTITUTION AND ABORIGINAL RIGHTS

By Graydon Nicholas

When we talked about the constitution development in 1982, the original words that were promised by the federal government – “the treaty and aboriginal rights of the aboriginal peoples of Canada are hereby recognized and affirmed” – would have made treaty rights superior to legislation. That in fact was the fear that the attorney general of Ontario, Roy McMurtry, had when he wrote a letter to Jean Chretien in 1981 and said, in effect, “Do you realize what you people are proposing? If this clause goes in, the consequences will be that, first of all, Indians can hunt and fish at will anywhere, any time and we can’t do anything about it. The second thing it’s going to do is throw the whole land question in an uproar, because there are so many areas in this country where the land claims question has not been settled that the courts are going to be clogged with litigation and the Indians are going to be winning – and what’s going to happen to our taxpayers?”

Those of us who knew this would happen if treaty and aborig Read More
THE CONSTITUTION AND ABORIGINAL RIGHTS

By Graydon Nicholas

When we talked about the constitution development in 1982, the original words that were promised by the federal government – “the treaty and aboriginal rights of the aboriginal peoples of Canada are hereby recognized and affirmed” – would have made treaty rights superior to legislation. That in fact was the fear that the attorney general of Ontario, Roy McMurtry, had when he wrote a letter to Jean Chretien in 1981 and said, in effect, “Do you realize what you people are proposing? If this clause goes in, the consequences will be that, first of all, Indians can hunt and fish at will anywhere, any time and we can’t do anything about it. The second thing it’s going to do is throw the whole land question in an uproar, because there are so many areas in this country where the land claims question has not been settled that the courts are going to be clogged with litigation and the Indians are going to be winning – and what’s going to happen to our taxpayers?”

Those of us who knew this would happen if treaty and aboriginal rights were entrenched in the Constitution began to speak out, warning that the government wouldn’t allow it. Our advice wasn’t heeded, but later on the government introduced the words “the existing aboriginal and treaty rights are hereby recognized and affirmed.” The word existing, under law, means “what the courts have decided to date.” They were only legitimizing the status quo. It is accepted that federal law can wipe out Indian rights, but it’s not all right for provincial laws to do this. This is why Section 35, in my opinion, is meaningless the way it is now written in the constitution. The word existing would have to be removed altogether. But then you would have the situation which McMurtry correctly pointed out in 1981. That would have been the state of law in Canada.

- Robert M. Leavitt, Maliseet and Micmac: First Nations of the Maritimes.
Fredericton: New Ireland Press, 1995, p. 222

© Robert M. Leavitt. All Rights Reserved.

Learning Objectives

Learners will understand the sections of Canada's Constitution that directly refer to First Nations peoples.

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