Harper’s Bill C-51 vs. Section 35 of the Constitution Act 1982

Russell Diabo
First Nations Policy Consultant

I’m not a lawyer, but as a policy practitioner I view Bill C-51 as a direct threat to First Nations pre-existing sovereignty and Aboriginal & Treaty rights.
Since 1982 section 35 of the new constitution of Canada “recognizes and affirms the existing aboriginal and treaty rights of Aboriginal Peoples”.
In the 1980’s a series of First Ministers Conferences (FMC’s) on Aboriginal Matters failed to politically define what rights were protected in section 35.

Starting in 1990 with the Sparrow decision the Supreme Court of Canada began legally defining section 35, now after a number of key court decisions a section 35 legal framework has evolved for analyzing assertions of Aboriginal and/or Treaty rights.
The SCC has not ruled on whether self-government is included and thus protected by section 35.
The SCC 1996 Van der Peet decision held that if Aboriginal rights are asserted:
• The right must involve an activity that was a “practice, tradition or custom [that] was a central and significant part of the [Aboriginal] society’s distinctive nature.
• The activity must have existed prior to contact with European settlers.
• The activity, even if evolved into modern forms, must be one that continued to exist after 1982, when the Constitution Act was passed.
The SCC 1997 Delgamuukw decision set out a legal test when Aboriginal Title is asserted, this test is now the standard for Aboriginal Title as a result of the 2014 Tsilhqot’in decision:
• The Supreme Court concluded that Aboriginal title is a real property right, which enjoys constitutional recognition and protection via s.35 of the Constitution Act, 1982.
• It held that, where Aboriginal title exists, and where it has been infringed, the Crown must justify its infringement and reconcile its assertion of Crown title with Aboriginal title. The Court identified two steps in the justification test: (1) claimant proves infringement; and (2) Crown proves justified with fiduciary duty.
• The right to exclusive use and occupation of the land.

• The right to choose to what uses the land can be put, subject to the ultimate limit that those uses cannot destroy the ability of the land to sustain future generations of Aboriginal peoples.

• Lands held pursuant to Aboriginal title have an inescapable economic component.
However, the SCC held in the Tsilhqot’in decision that the “radical or underlying title” belongs to the Crown and that if Aboriginal Title is established either through court declaration or negotiations (unlikely because of land claims policy) Aboriginal consent is required when Aboriginal Title lands are affected, but the Crown can justifiably infringe on Aboriginal title.
The federal unilateral policy definition of the scope of self-government is set out in their 1995 Aboriginal Self-Government policy. It basically allows for conversion from an Indian Act band into a municipal type government with local powers after Aboriginal laws are “harmonized” in a concurrent law (federal/provincial/Aboriginal) model.
The federal unilateral policy definition of the scope of Aboriginal Title is set out in their Comprehensive Land Claims Policy. The main objectives of the CCP are to get Aboriginal groups asserting Aboriginal Title to:
• Accept the extinguishment (modification) of Aboriginal Title;
• Accept the legal release of Crown liability for past violations of Aboriginal Title & Rights;
• Accept elimination of Indian Reserves by accepting lands in fee simple;
• Accept removing on-reserve tax exemptions;
• Respect existing Private Lands/Third Party Interests (and therefore alienation of Aboriginal Title territory without compensation);
• Accept (to be assimilated into) existing federal & provincial orders of government;
• Accept application of Canadian Charter of Rights & Freedoms over governance & institutions in all matters;
• Accept Funding on a formula basis being linked to own source revenue;
So if Aboriginal groups try to assert or exercise Aboriginal and/or Treaty rights outside of these policy negotiation frameworks off-reserve on their Aboriginal Title/Treaty territories and they affect third party or Crown rights or interests they will be subject to arrest via the Canadian Criminal Code or through civil proceedings at the Crown’s discretion.
Since Bill C-51 defines “activities” that include threats to Canada’s “sovereignty, security or territorial integrity”, or “interference with critical infrastructure” this proposed law will likely be used by the Crown and/or its security and police (and military) forces on any Aboriginal groups or individuals who are conducting activities outside of the Crown’s “Aboriginal” or “Indian” policies or laws.

I’m not comforted by the proviso in section 2 of Bill C-51, which provides:
For greater certainty, it does not include lawful advocacy, protest, dissent and artistic expression.
It will be the Crown who defines what is “lawful” advocacy, protest, dissent and artistic expression.
Consider that the 2014 federal Tribal Council Policy provides:
Tribal Council Funding cannot be used for any costs related to supporting advocacy or political activities. (Page 8)
In fact, all federal funding for First Nations now has terms and conditions in the funding agreements that the funding recipients (bands and FN organizations) must comply with the policies and programs of the federal government, or the federal government will force compliance by recovering or cutting off the funding and imposing Third Party Management, a situation I understand about 20-25% of the bands in Canada are now under. The federal government is also using federal audits or the threat of federal audits as a political tool to silence First Nations leadership.
So in my view Bill C-51 just gives the federal government new tools to continue the domestic colonial repression of First Nations.