All premiers should be talking about amending Section 35 of the Constitution
Within the tangle of Indigenous rights holding down the Canadian economy is Section 35 of the 1982 Constitution — the Indigenous rights guarantee. It’s the country’s very own Gordian Knot, and that’s why it was such a good sign that Premier Danielle Smith is willing to split it.
“If there’s an appetite among the other premiers to talk about defining that ever further through some kind of constitutional amendment, I’m open to having that conversation,” Smith told reporters at a Friday news conference. She added that the conversation could start as early as this week.
Section 35 is the reason why private property rights have been in flux in B.C. since last summer; it’s the cause of death for pipeline projects that couldn’t survive past the drawing board. It’s a convenient excuse for weak governments to justify their inaction when Indigenous fishers on the East Coast harvest illegally. And earlier this month, when an Alberta judge invalidated a citizens’ petition on secession for the preposterous reason that Indigenous people weren’t consulted first, it became a barrier to democracy.
Since it was added in 1982, this part of the Constitution has grown far beyond treaty acknowledgements and assurances that traditions will be considered when state decisions are made. This is because the courts have interpreted it more broadly and given it more power over time. In 2004, for example, the Supreme Court decided that Section 35 imposes upon the Crown a duty to consult with potentially affected Indigenous people whenever an upcoming government decision could affect their interests.
This has given the anti-development wings of the Indigenous community incredible leverage in their efforts to roadblock the Canadian economy. They’re much more likely to win in court if they decide that consultations aren’t to their standard. Even the most unserious arguments that fail in the end — like the claim that a grizzly bear spirit would be disturbed by a new ski resort and thus it should not be built, which lost at the Supreme Court in 2017 — can pause projects for years and cause such a political headache that projects die on the page anyway.
Read the full article at National Post: Danielle Smith gets it. Aboriginal rights have gone too far