• WHAT IS THE CANADIAN CONSTITUTION?

• A  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, i.e., federal, provincial, municipal
• Indicates the rights of each citizen with reference to each other and to the government, i.e., the Charter of Rights and Freedoms (1982).
• Outlines how the Constitution is to be amend.
• The Canadian Constitution is made up of a nucleus of written, systematically arranged rules/laws. However, there also exists unwritten rules which are referred to as Conventions. Conventions can also be described as general agreements or longstanding customs on the usages and practices of social live. Both the |Nucleus and Conventions have been interpreted by the courts, and their decisions have led to Constitution case law. Needless to say, overtime a vast labyrinth of decisions have been made making the Constitution a multi-faceted and sometimes confusing compilation. 

Canada’s Constitution is complicated because it was not created from a single draft, much 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. It is a hybrid. Firstly, it was mainly based on the 1867 British North America Act which created Canada as a federated state by common agreement under a central government authority (Ottawa). This is a major departure from the British model of governance. 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.

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.

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 unwritten 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.
• 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?
• 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 French-Speaking people and were gradually abolished.

ENGLISH COLONIAL LAW AND THE CANADIAN CONSTITUTION

• 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 with less resources) is dependent upon another cultural group.  There is an implicit understanding that the smaller group is unilaterally re-defined into the image of the dominant group, (i.e., attempts to absorb Indigenous people into the body politic). The relationship is based neither on a contractual or negotiated understanding, but upon the power of one side to regulated the behavior of the other accordance with a set of unilaterally selected criteria. For example, the presumed inferiority of Indigenous 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 back to Canada from England in 1982.

WHAT ONE FEARS, ONE TRIES TO DESTROY” (Florence Nightingale)

Forms of bias always favor 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 knowledge and values similar to the dominant culture.

With notions of manifest destiny (see definition below) bubbling in the heads of the patriarchal colonialists such as the Spanish, British and French, territories were acquired in often violent ways. The original inhabitants lifestyles,  knowledge, and values were vastly different from those of the conquerors. In these situations the dominant culture typically failed to address these differences and perceived them as indications of inferiority. History, 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 unacknowledged by the conquerors, who believed that Indigenous people did not have the kind of society that could sustain and 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, a situation was created that is staggering in its short-sightedness, ignorance and racism.

A colony can also be a territory controlled by a distant state. Does de-colonization mean self-government and the right to create one’s own constitution? Canada may have repatriated the Constitution from Britain but they did not repatriate Indigenous people or individual treaties and proclamations.

The 1763 Royal Proclamation contains British autocratic language and holds the upper hand in determining Indigenous land rights. This is why, even with re-patriated constitution we still have to appeal to the Queen for justice, for the simple reason that repatriation cannot occur for that which has always been here. Such appeals have diminished with the enactment of the Charter of Rights and Freedoms which now place Indigenous rights in the hands of the Supreme Court of Canada instead of Parliament.

THE CURRENT INDIGENOUS WAY

Nowadays, Indigenous systems such as governance of reserves is a far cry from pre-European contact. Both women and men share equally in the day to day running of the community. Everyone had a say in decision-making as consensus was a critical aspect of community life. With colonialism and patriarchal attitudes, men had deliberately been given the power and consensus was shattered, women were marginalized. Infighting,  dirty politics and corruption are daily events within male-dominated band councils. However, a positive situation in recent times is the number of women who have achieved “Chief status”. Nonetheless, Eurocentrism, that is the baggage that European explorers and settlers brought with them focused on European culture to the detriment and exclusion of any other culture that may have been present.