U of T hosts conference on 30 years of section 35

Justice Murray Sinclair, Manitoba’s first Aboriginal judge and chair of the Truth and Reconciliation Commission, gave the keynote address at a Toronto conference to commemorate the entrenchment of section 35 in the Canadian Constitution 30 years ago.

The conference entitled 35@30 was hosted by the Faculty of Law, University of Toronto and held in co-operation with the National Centre for First Nations Governance on Oct. 25 to Oct. 27. The conference brought together experts on Aboriginal and constitutional law from Canada, Australia, New Zealand and the United States to offer their critical reflections on the impact of section 35.

It started off with a bang, it’s whimpering just a little bit, but Justice Sinclair said he thinks section 35 still has got potential
The Supreme Court’s decision in the Sparrow case (1990) was an important start for section 35, he said, because it seemed to signal a new legal era, one where the rights of Indigenous peoples in Canada were finally going to get the respect to which they were entitled.

However, decisions by the Supreme Court subsequent to Sparrow, Sinclair said, obliterated the idea that section 35 was an opportunity to argue a nation-to-nation relationship had been established. The tendency to look at Aboriginal rights as needing to be limited in order to fit under Crown sovereignty has continued to dominate the Supreme Court’s thinking, he said.
The United Nations Declaration on the Rights of Indigenous Peoples is an important document in terms of the way section 35 is going to be interpreted in the future, said Sinclair.

Elijah Harper, who was present at the Constitutional Conferences with the Prime Minister and First Ministers of the day, was the conference Elder and one of the presenters on the Recognition and Reform Panel. When he was introduced, panel chair Justice Todd Ducharme said, when he thought of great moments in Canadian history, tops would be Elijah Harper holding the eagle feather and voting no to the Meech Lake Accord.

Harper said that his life’s work has been committed to getting recognition for Aboriginal people and fighting against the government’s assimilation attempts. Aboriginal rights, he said, are broader than treaty rights, and include who Aboriginals are as a people, their very existence and identity, and that is what the Canadian government continues to attack.

Even to this day, Harper said, First Nations people are living under the Indian Act, colonial legislation that defines who an Indian is, what an Indian can do and what he can say. The Indian Act undermines the nation-to-nation relationship, Harper said, and no amount of tinkering will fix it.

For true reform to happen, Harper said, Canada has to step up to its moral obligation to deal honorably with Aboriginal people. At the same time, the general public must be educated about Aboriginal people to get them on side.

Pam Palmater, Mi’kmaq from the Eel River Bar First Nation in New Brunswick, was one of the panelists speaking on how section 35 has impacted Indigenous identities. Palmater, who came to national attention when she ran for the leadership of the Assembly of First Nations in July of this year, was introduced by panel chair Jean Teillet as a provocative speaker.

Palmater said Aboriginal people are worse off with section 35 and that the courts have treated Aboriginal people like cultural minorities with a few extra rights. Aboriginal rights and identities remain frozen in time, she said, and limited to pre-contact cultural practices.

While the courts recognize traditional activities like singing, dancing and subsistence hunting, fishing and gathering, they have not recognized traditional law, government, economies and politics. The notion of independent nations is not recognized, Palmater said, and the concept of wardship with the federal government’s paternalistic attitude hasn’t really changed over time and this is being reinforced by the Supreme Court.

She said conditions for First Nations have not improved with section 35; every socio-economic indicator has gotten progressively worse to such a state that First Nations are now in crisis.

Michael Ignatieff, former leader of the federal Liberal Party, shared his experiences, observations and reflections at the closing of the conference. One of the unintended consequences of section 35, Ignatieff said, was to legalize the battle letting the politicians off the hook because the courts are dealing with issues that should be dealt with in the political arena.

Discussions about Aboriginal sovereignty were unresolvable, he said, because the Supreme Court cannot deny the supremacy of Canadian law. The discussion needs to be focused on shared jurisdiction, on the question of who does what and, for discussions to succeed, Aboriginal people must be recognized as equal partners.