CANADIAN CONSTITUTION, ENGLISH COLONIAL LAW
Supreme Court has ruled there cannot be a Nativity Scene on Parliament
Hill in Ottawa, this holiday season.
WHAT IS THE CANADIAN CONSTITUTION?
-- A venerable system of fundamental laws, policies and principles that describe how a government or state is organized and will function.
--Establishes the powers of the executive, legislative and judicial branches of government,
-- Allocates powers to different levels of government, such as federal, provincial, and municipal.
-- Indicates the rights of each citizen in relationship to each other and to the government, i.e., the Charter of Rights and Freedoms (1982).
-- Outlines how the Constitution is to be amended.
-- The Canadian Constitution is made up of a nucleus of written, systematically arranged rules/laws. However, there are also unwritten rules, called Conventions. Conventions could also be described as general agreements or longstanding customs on the usages and practices of social life. Both the Nucleus and the Conventions have been interpreted by the courts, and their decisions have lead to Constitutional case law. Needlesstosay, overtime a vast labyrinth of decisions have been made, making the Constitution a multi-facted document and rather outrageous document in terms of its compilation. (see below)
Canada's Constitution is extremely complicated because it was not created from a single draft, like the constitution of the United States. The Canadian Constitution is a quilt, that has been put together piece by piece, with some pieces more elaborate than others (somewhat like the federal tax laws!). The U.S. Constitution, on the other hand is simple and to the point. It consists of seven articles and twenty-six amendments and is the supreme law of the land.
Canada's Constitution is a bit of a hybrid. Firstly, it was mainly based on the 1867 British North America Act which created Canada as a federated state. Definition of a Federation: Forming a union (provinces) by common agreement under a central government or authority (Ottawa). This is a major departure from the British model of governance.
Secondly, in deference to the British style of governing, Canada adopted Conventions (unwritten laws). Under the British model, Parliament is the supreme law of the land and the British Constitution includes whatever Parliament passed down through the centuries. This includes Parliamentary procedures, some of which were never written down, but have been used for so long they are considered binding customs.
So, the Canadian Constitution has, (a) a written section to reconcile with the laws relating to federalism; (b) an unwritten section to accommodate whatever was passed or understood prior to confederation. There are probably hundreds of these 'understandings' and they are not in one place, but buried in massive amounts of case law, lying on dusty shelves in the various government offices and courts of the land. Here are a couple of interesting examples of customs:
-- The Party with the majority of seats in the House of Commons forms the government. This is not written down anywhere. It is just understood.
-- The Prime Minister of Canada is the leader of the party that wins the majority. Not written anywhere. It is just understood.
-- Because the Constitution is not a comprehensive document, with all factors in one place, it is probably the case that from time to time government pundits, when wanting to implement something have simply said, "Well, that is the way it has always been done." Who is going to argue?
CANADIAN CONSTITUTION & OTHER ACTS OF COLONIZATION TIME LINE
- QUEBEC ACT
-- In order to retain Quebec's cooperation, the Quebec Act decreed that it could keep the French language and religion.
--The Act attempted to set geographical and cultural boundaries.
-- The Act gave rise to the power of the clergy.
- CONSTITUTIONAL ACT
-- This new constitutional law, established parliamentary institutions (based on British parliamentary system) in each of the two colonies. Each had a governor, legislative council and assembly.
-- Act tried to legislate peace between British and French immigrants
1840 - ACT OF UNION
Upper and Lower Canada united under one central government on the recommendation of the 1839 Durham Report.
The Union Act established a single Parliament with equal representation from the two former colonies, a permanent civil list, denial of the French language as an official language in Parliament and consolidation of the debt.
The population of Lower Canada at that time was larger than Upper Canada and the latter was more in debt.
Many sections of the law were considered unfair to the French-speaking peoples and were gradually abolished.
1848 - RESPONSIBLE GOVERNMENT
-- The idea of responsible government is found in Canada's constitutional development because it is the keystone of Canadian constitutional conventions (the unwritten principles which underlie the Constitution).
-- It refers essentially to a democratic government which is answerable to the representatives of the populace.
-- It can take the form
of an executive council or a cabinet whose legitimacy stems from the
assent of a majority of the legislature.
-- Much to the joy of the Fathers of Confederation, the BNA Act received royal assent, July 1, 1967; Continental Canada is born.
-- The Act basically established Canadian Confederation (see below) and the legal division of powers (ground rules) between the central Parliament and the provincial legislatures. The federal government was responsible for, among other things, banking business, criminal law, the post office, the armed forces; the provinces could legislate, among other things, property law, contracts and local work.
-- The Act established the provisions for the Province of Canada (Ontario and Quebec), New Brunswick and Nova Scotia and created a federal state with a central government and a parliamentary system patterned on the British model. (See 1982 below).
It also included federal responsibility for "Indians, and Lands reserved for Indians."
-- Canada remains annexed to Britain.
-- Over the years there have been numerous amendments, (See 1982 below).
- CANADIAN CONFEDERATION
-- It included four provinces, Ontario, Quebec, New Brunswick and Nova Scotia.
-- From this day on Sir John A. is known as, among other things, the Father of Confederation.
Here is another photo of some of the other 'Dads'.
July 1, 1868 - THE RUPERT'S LAND ACT is passed allowing the Crown to declare Rupert’s Land part of the Dominion of Canada. The Act enables Her Majesty, Queen Victoria, to accept a Surrender upon Terms of the Lands, Privileges, and Rights of "The Governor and Company of Adventurers of England trading into Hudson's Bay, and for admitting the same into the Dominion of Canada."
- STATUTE OF WESTMINSTER
-- Recognized the independence of Canada from Britain.
-- British relinquished
much control of the social and political life of Canada and Canada’s
independence is legally recognized.
- CONSTITUTION ACT - HUGE CHANGE
-- The Constitutional Act, 1982 recognized and affirmed the existing Aboriginal and treaty rights of the Aboriginal Peoples, including rights and freedoms contained in the Royal Proclamation, 1763.
-- It also defined the Aboriginal Peoples to include the Indians, Inuit and Métis Peoples of Canada.
-- Repatriated the Canadian Constitution back to Canadian soil. This basically means that the power to amend the Constitution now rests in Canadian hands, not in the hands of the British Privy Council.
-- Included a general amending formula.
CHARTER OF RIGHTS AND FREEDOMS (also, sometimes call the Canadian Magna Carta)
Section 35 of the Constitution Act states: "The existing aboriginal and treaty rights of Aboriginal peoples of Canada are hereby recognized and affirmed." Section 37, states that federal and provincial members should meet within one year to directly address issues affecting Native people.
Section 25 of the Charter of Rights and Freedoms ensures that ‘existing’ Aboriginal rights are not adversely affected by the Charter of Rights and Freedoms particularly those recognized by the Royal Proclamation.
Section 27 then says that the Charter must also be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. The difficulty with this is that thee has been no consistent policies for Native people and therefore, relying on custom, practice, precedent only leads us back to colonialism.
The Charter creates a more or less level playing field for Native appeals, concerns and requests because a higher authority than the House of Commons is now activated - the Supreme Court. The court is now no longer a mere interpreter of the law, but now has the power to determine if the laws are in compliance with the meaning of the Charter. This is also dangerous territory given the individual views of nine people. (See Below under Important Notes).
BILL C-31 - MAJOR AMENDMENT TO INDIAN ACT
Important changes were made to Canada's Indian Act on June 28, 1985, when Parliament passed Bill C-31, an Act to Amend the Indian Act. Bill C-31 brought the Act into line with the provisions of the Canadian Charter of Rights and Freedoms.
THREE PRINCIPLES THAT GUIDED THE AMENDMENTS TO THE INDIAN ACT:
-- Removal of discrimination.
-- Restoring status and membership rights; and
increasing control of Indian bands over their own affairs.
-- In addition to bringing the Indian Act into accord with the equality provisions of the Canadian Charter of Rights and Freedoms, Bill C-31 expanded band control over membership and community life, enabling Indian people to take an important step toward self-government.
-- C-31 changed the registration system so that entitlement was no longer based on sexually discriminatory rules.
THE AMENDMENTS, EFFECTIVE APRIL 17, 1985:
-- Treat men and women equally.
-- Treat children equally whether they are born in or out of wedlock and whether they are natural or adoptedé
-- Prevent anyone from gaining or losing status through marriageé
-- Restore Indian status for those who lost it through discrimination or enfranchisement.
-- Allow first-time registration of children (and in some cases descendants of subsequent generations) of those whose status is restored; and
allow for the registration of children born out of wedlock if either parent was a registered Indian, regardless of their date of birth.
-- The federal government continues to maintain the Native Register. Those who were recorded in the Register when the amendments came into force continue to be recorded there. Those whose status was to be restored or who are eligible to be registered for the first time must apply to the Registrar to be recorded. Two categories of persons were excluded from registration under the C-31 provisions:
-- Women who gained status only through marriage to a status Native, and later lost it (e.g. through re-marriage to a non-Indian); and children whose mother gained Indian status through marriage and whose father is non-Indian.
-- Those who lost their membership in a band through sexual discrimination in the past, can apply to regain membership.
-- Bands can control their own membership based on their own membership rules.
Bill C-31 provides that, under the Indian Act, band membership rules respect two principles:
-- A majority of band electors consent to the band's taking control of membership, as well as to a set of membership rules; and existing band members and those who are eligible to have band membership restored do not lose their entitlement to band membership because of something that occurred before membership rules were adopted.
-- Some women met with opposition from reserve band councils when they tried to return to live on reserve because of perceived additional financial burden.
Other Points of Interest:
-- 1965 - Canadian Flag proclaimed (white with red side borders and a red maple leaf in the centre)
-- 1967 - Order of Canada is created
"O Canada!" becomes the national anthem.
-- Society will always reward certain people/groups with unequivocal acceptance into the rhythms, laws, views and behaviours of the dominant culture. Constant vigilance and maintenance of this equilibrium is how a society strikes a reasonable balance among its social and political groups.
-- An essential element to realize this balance is the use of one of society's most important protagonists (or antagonists as the case may be) -- the dreaded Bureaucracy. Ottawa is a bureaucracy and the persistent theme in terms of its attitude towards Indigenous cultures will always be patriarchal assimilation, because it does not believe that Native people fit the acceptable definition of social and political status quo. (See English Colonial Law below).
-- Affirming special status for Indigenous people in the 1982 forced Ottawa to try and change its attitude from one of patrilineal imposition and domination, to one of conciliation and consensus. After centuries of Machiavellian behaviour, a change of attitude still continues to be the government's greatest challenge.
-- Since 1982, Ottawa has adopted a different tactic. Rather than continue to press publicly for cultural assimilation, Ottawa is persistently moving Indigenous groups in the direction of functioning under already entrenched bureaucratic structures both at the provincial and federal levels (the proposals to change the Indian Act are based on established government structures).
-- At the very least, the government is trying to negotiate extremely politicized arrangements that for the most part benefit the political hegemony of the government. In other words, Assimilation under a different guise. Again, the proposed amendments to the Indian Act speak to this point very loudly (now shelved when the liberal leadership changed from Jean Cretién to Paul Martin).
-- The state also continues to attempt to make past mistreatment of Native people no longer relevant to modern day realities. The plethora of lawsuits against various religious institutions, that threaten to bankrupt some of them, is a clear indicator that the Indigenous population who have been so appallingly wronged in the recent past are still not being acknowledged. Is it appropriate for a large section of Canada's history to be ignored? Should we ignore, for example, the holocaust of the second world war against the Jews because it is uncomfortable to remember? They certainly have not forgotten. The Native holocaust lasted six hundred years and will never be forgotten by The People. What's done is done, and history cannot be re-written or dismissed to ease the comfort level of those responsible.
-- The Charter of Rights and Freedoms now gives Indigenous people a higher authority to appeal to - and a more or less unbiased Supreme Court. For over a hundred and fifty years decisions/appeals were made at the federal level, in other words, by those in power who had instituted the oppressive action(s) in the first place. Such actions were usually affirmed by a patriarchal Supreme Court who almost always ruled in favour of the central government. The introduction of entrenched rights and freedoms into the Rule of Law levels the playing field somewhat.
-- The old BNA Act has not dropped into a void, it has simply been absorbed into the new Constitution Act and is called, The Constitution Act, 1867.
ENGLISH COLONIAL LAW AND THE CANADIAN CONSTITUTION
Definition of 'Colony' - A group of immigrants (or settlers) from a conquering country living in a separate land apart from but still under the control of the imperial power.
Colonization: A system or policy by which a dominant country maintains foreign colonies in order to exploit them economically.
Colonialism: A relationship where one group of people (usually smaller and weaker) is dependent upon another cultural group. There is an implicit understanding that the weaker group is unilaterally re-defined into the image of the stronger group. The relationship is based neither upon a contractual nor negotiated understanding, but upon the power of one side to regulate the behaviour of the other in accordance with a set of unilaterally selected criteria. For example, the presumed inferiority of Native nations, allowed for the imposition of motives, methods and understandings of the dominant culture in virtually every domain of Indigenous life.
Patriate: A Canadian-ism coined by former (now deceased) Prime Minister Pierre Trudeau prior to bringing the Constitution home from England in 1982.
ONE FEARS, ONE TRIES TO DESTROY"
Forms of bias always favour what is familiar and denigrates what is different. In other words, it has always been easier to recognize ongoing legal rights in newly acquired territories when local inhabitants had traditions and values similar to the dominant culture.
With the notions of manifest destiny (see definition below) bubbling in the heads of the patriarchal colonialists such as the Spanish, British, and French for example, territories were acquired in often violent ways from the original inhabitants because their traditions, values and lifestyles were very different from those of the conquerors -- 'what one fears one tries to destroy'. In these situations the dominant culture typically failed to address these differences and perceived them as indications of inferiority. History, of course, now shows that within the settled environments of Turtle Island's Indigenous people, there were well-established, sophisticated, political and social infrastructures that had operated seamlessly for thousands of years.
This went unrecognized by the conquerors, who believed Indigenous people did not have the kind of society that could contain rights and freedoms recognized by a 'civilized' British court of law. Coupled with the fact that oral narratives were dismissed as the meanderings of an undisciplined, savage and uncivilized people, and a situation is created that is staggering in its short-sightedness, ignorance and racism.
Some academic pundits argue that Native people were de-colonized in favour of the dominant culture. However, as the Elders would say, one cannot be de-colonized if one was not colonized in the first place. "We were conquered through starvation, foreign diseases, war, land appropriation, Christianity, fall of the matriarch, and oppressive laws." In other words, colonization which literally means a "group of settlers" who chose to come to Canada certainly does not describe the Indigenous people. First Nations people were not groups of settlers who emigrated from some other place - they were already here and settled. Such patriarchal terms are still present in today's Canadian Constitution.
A colony can also be a territory controlled by a distant state. Does de-colonization mean self-government and the right to write one's own constitution? What does it mean? Canada may have repatriated the Constitution from Britain in 1982 but they did not re-patriate Native people or individual treaties and proclamations.
The 1763 Royal Proclamation, for example, 'colonized' First Nations people by due not by choice. Royal Proclamations such as the 1763 example still contain British autocratic language and holds the upper hand in determining Indigenous land rights. This is why, even with a re-patriated Constitution, First Nations people still occasionally appeal to the Queen for justice for the simple reason that Native people believe that you cannot re-patriate that which has always been here. However, such appeals have diminished with the enactment of the Charter of Rights and Freedoms which now places Indigenous claims in the hands of the Supreme Court as opposed to Parliament.
THE NATIVE WAY
Modern Native social and political organizations base their activities on two sets of value systems:
(a) Native community-based infrastructures that accommodate the cultural, social and political concerns and opinions of everyone in the group.
(b) Trying to meet the needs of non-Native funding and government agencies.
The delicate balancing act can lead to conflicts that have fragmented Native communities. Infighting, dirty politics and corruption are daily events within male-dominated band councils. Women continue to be a threat to this male dominance, therefore, efforts are redoubled by nervous male band council members to keep them marginalized.
"Indians have been cursed above all other people
in history. Indians have anthropologists."
EUROCENTRISM: The emotional attitude that European visitors arrived with, that they were the superior race; also means an excessive or inappropriate concern for racial matters. Ethnocentrism can also be used within the above contexts.
This is the baggage that the European explorers and settlers brought with them as they sallied forth from their homelands secure in the knowledge that their empire, religion, general beliefs, written laws and languages were the only ones that existed. Hence their misguided belief that they "discovered" Turtle Island, and that Indigenous history commenced with their arrival.
ETHNOGRAPHY: A branch of Anthropology that deals specifically with the recordings of specific cultures, usually non-literate groups.
Interesting way of putting it, don't you think? 'Non-literate' groups. In fact, Indigenous people were extraordinarily literate, they simply displayed it in different ways, through their beautiful and heartfelt art, the gentle, rolling, oral narratives spoken in beautiful languages that described their rich history that pre-dated most European societies, the impassioned speeches given by many Native leaders as their saw their traditional lives slipping away.
What Indigenous people have been saddled with is something called, Ethno-History, whereby Native history and culture have been interpreted primarily through the writings and biases of non-Indigenous persons.
MANIFEST DESTINY - First coined in 1839 by Newspaper Editor and Congressman John L. O'Sullivan. to defend America's right to claim new territories as it pleased. He said: "..the whole of the continent which Providence has given us for the development of the great experiment of liberty and federal development of self government entrusted to us. It is right such as that of the tree to the space of air and the earth suitable for the full expansion of its principle and destiny of growth." Manifest Destiny became the rallying cry all across America with a devastating effect on Native Nations. With growth came moral, social and economic differences between people, states and countries. It has been argued that Manifest Destiny contributed to both the Revolutionary and American Civil Wars. Also in 1846, the United States declared war on Mexico and managed to wrest away what is now the southwestern United States.
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