Of the several amendments that have been made to the
Canadian Constitution over the years that directly affect
provincial interests, all but one have been achieved as a result
of extensive negotiations between the federal and provincial
governments. The one exception is Section 35 of the Constitution
Act, 1982, which figures so prominently in current treaty-making
efforts in British Columbia.
From 1968 to 1992 (except for 1972 to 1975), efforts at
constitutional reform in Canada were an almost unremitting
process. First, the Victoria Charter round (1996 to 1971); then,
the extensive federal-provincial negotiations (October 1976 to
1978); Bill C.60 (1978); another round (November 1978 to February
1979); the Patriation round (1980 to 1981); the Aboriginal
Conferences (1983 to 1987); Meech Lake (1987); and the
Charlottetown Accord (1992).
The list of subject-matters under discussion at each of these
sets of negotiations was lengthy and, in each case, the process
involved a great many meetings among federal and provincial
officials, ministers and first ministers. For the purposes of
this paper, the important point is that the subject of aboriginal
rights was not even raised-much less negotiated-in any of the
federal-provincial negotiations held over the years until very
late in the 1981 Patriation process.
Section 35, as enacted in 1982, read as follows:
35 (1) The existing aboriginal and treaty rights of the
aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the
Indian, Inuit and Métis peoples of Canada.
As this paper will show, Section 35 (minus the word "existing")
had been the product of bilateral discussions between the federal
government and the aboriginal leadership for many months but the
provinces had had no direct involvement in that process. I am
suggesting that the proper meaning to be given the Section 35
ought to be conditioned, if not governed, by those circumstances
and by the meaning of those words within the contemplation of the
parties. The thesis of this analysis is that the expansive
meaning given by treaty proponents to Section 35 (as amended in
1983) is not supported either by the circumstances of its passage
or its plain meaning.