Constitutional Reform

TimG · September 12, 2011

Aboriginal title was first acknowledged in the early 19th century, in decisions in which indigenous peoples were not a party.

Aborignal title ONLY exists because the state of Canada chooses to recognize it. Full stop. If Canada chooses to revoke those rights they are gone. Quebec tried to claim it had an 'unwritten veto' in th 1984. The court ruled it did not. The same story would play out if there ever was a constitutional show down over Aboriginal rights. i.e. Aboriginals would try to claim that charging their rights requires their consent. The court will be forced to concede that that those rights were granted by the Crown and can be taken away by the Crown (i.e. the GG as directed by the parliament of Canada).

You have an extremely bizarre concept of democracy if you really believe that a minority can prevent the majority of changing the constitution.

Edited September 12, 2011 by TimG

jacee · September 12, 2011

Aborignal title ONLY exists because the state of Canada chooses to recognize it. Full stop. If Canada chooses to revoke those rights they are gone. Quebec tried to claim it had an 'unwritten veto' in th 1984. The court ruled it did not. The same story would play out if there ever was a constitutional show down over Aboriginal rights. i.e. Aboriginals would try to claim that charging their rights requires their consent. The court will be forced to concede that that those rights were granted by the Crown and can be taken away by the Crown (i.e. the GG as directed by the parliament of Canada).

You have an extremely bizarre concept of democracy if you really believe that a minority can prevent the majority of changing the constitution.

Oh crap! Now you just aren't being sensible. Take your place in the school of gbambino/smallc school of make believe! :lol:

¨¨¨¨¨¨¨¨¨¨¨

Edited to add:

Legally ...

Indigenous Nations have recourse to the International Courts of Justice, who rule according to documents encompassed by the UN Declaration on Rights of Indigenous Peoples.

Pollitically ...

1) Harper refused to sign the UN Declaration on Rights of Indigenous Peoples.

2) Harper wanted a seat on the UN Security Council, but didn't get it because of 1).

3) Harper signed.

Economically ...

If Harper makes Canada look like an ass on the international stage, say goodbye to your markets.

Successive governments of Canada, on our behalf, have devolved the responsibility for accommodating Aboriginal rights to those directly infringing on those rights: If you want to build or drill or extract, you consult with and accommodate the Nation with Aboriginal title/rights to the land: They retain the right to sustain themselves from that land (and the products thereof), and their interests will include protecting the capacity of the land to sustain human life.

Not sayin it's easy, but it's both reasonable and sensible I think.

Edited September 12, 2011 by jacee

charter.rights · September 12, 2011

Parliament is NOT supreme. It cannot unilaterally change the Constitution. It requires the consent of the Provinces.

Aboriginal rights cannot be abrogated or derogated. BEFORE any constitutional change proposal First Nations could ask the Supreme Court to decide whether any proposed change was derogating their rights. If the Court found it was, the Court could strike down any change.

In my understanding the amendment procedure in the Constitution is there to strengthen rights of people, or the procedures of Parliament where it was consistent with Canadian values (hence the requirement for Provincial consent) and laws. It isn't there to advance some racist agenda to derogate any rights or freedoms, especially aboriginal and treaty rights. The same can be said about the "notwithstanding" clause. it is there for similar reasons using a less stringent procedure.

The argument about supremacy is moot since the Constitution - The Rule of Law - is Supreme. It is Supreme over the actions of Parliament and the Provinces. It is supreme over the executive and legal branches. It is supreme over the government. The "checks and balances" occur in the Constitution's requirement for consent - consent of the Provinces and consent of First Nations to amend any treaties. Aboriginal rights cannot be given up by consent or taken away by consent of any amendment because those rights exist outside of the Charter of Rights and Freedoms. And while petty arguments can be jostled back and forth over this and that, Aboriginal rights (which are largely undefined)continue to exist and will continue to be examined and clarified by the Courts.

And finally, Aboriginal rights convey a duty on the Crown to act in the best interests of Aboriginal people, and to protect their interests above all others. That duty cannot be abrogated or derogated either and like rights are merely subject to interpretation from time to time.

g_bambino · September 12, 2011

Now you just aren't being sensible. Take your place in the school of gbambino/smallc school of make believe!

Back up your childish assertions, please.

g_bambino · September 12, 2011

I never said nor do I believe that the Supreme Court can prevent parliament from attempting to change the constitution.

Let's quote you directly:

[T]he Supreme Court's rulings are the law and Parliament is NOT above the law.

But can parliament change the treaties? I think not.

[Parliament] changing the Constitution as it pertains to Aboriginal and treaty rights... would not change anything... [T]he Supreme Court would still have responsibility for interpreting and applying both Aboriginal and treaty rights.

You also nonsensically said the treaties were between First Nations and the Supreme Court, since the Supreme Court represents the Crown. All together, you've certainly communicated the idea that the Supreme Court makes the ultimate rules and parliament must follow, when, in fact, parliament makes the law and the Supreme Court only interperets and makes judgement in any disputes. If parliament changes the law, according to the law, then the Supreme Court can do nothing to stop it. And parliament has passed for itself no law that says parliament cannot alter a treaty.

Which gets us to this:

Aboriginal and treaty rights exist outside of the Constitution.Aboriginal rights are set out in the treaties.

Aboriginal rights are set out in the treaties. The treaties are part of the constitution. Aboriginal rights thus exist very much within the constitution. As the constitution can be amended, so can the treaties within it, and thus the rights within them.

[+]

Edited September 12, 2011 by g_bambino

g_bambino · September 12, 2011

Under who's authority? God? Aboriginal rights have no legal meaning outside the context of the Canadian constitution.

[Parliament] won't strip aboriginal rights (but they could) because that would be too hard to get the required consensus.

Precisely.

TimG · September 12, 2011

Indigenous Nations have recourse to the International Courts of Justice, who rule according to documents encompassed by the UN Declaration on Rights of Indigenous Peoples.

So what?

The Declaration is an aspirational document which speaks to the individual and collective rights of Indigenous peoples, taking into account their specific cultural, social and economic circumstances.
Although the Declaration is a non-legally binding document that does not reflect customary international law nor change Canadian laws, our endorsement gives us the opportunity to reiterate our commitment to continue working in partnership with Aboriginal peoples in creating a better Canada.

http://www.ainc-inac.gc.ca/eng/1309374239861

If Harper makes Canada look like an ass on the international stage, say goodbye to your markets.

Nonsense. The only people who care about such things are the left wing Europeans who are not exactly in a position of strength in the world economy any more. In any case, such a move would not happen unless the court disrupted the status quo with ruling that Canada simply cannot afford to to implement. In that scenario politics will be quite different.

That said, you now appear to concede that legally Canada is entitled to do whatever it wants and you are depending on some form of international peer pressure.

Edited September 12, 2011 by TimG

jacee · September 13, 2011

Let's quote you directly:

You also nonsensically said the treaties were between First Nations and the Supreme Court, since the Supreme Court represents the Crown. All together, you've certainly communicated the idea that the Supreme Court makes the ultimate rules and parliament must follow, when, in fact, parliament makes the law and the Supreme Court only interperets and makes judgement in any disputes. If parliament changes the law, according to the law, then the Supreme Court can do nothing to stop it. And parliament has passed for itself no law that says parliament cannot alter a treaty.

Which gets us to this:

Aboriginal rights are set out in the treaties. The treaties are part of the constitution. Aboriginal rights thus exist very much within the constitution. As the constitution can be amended, so can the treaties within it, and thus the rights within them.

[+]

Aboriginal and treaty rights exist whether they are in the Constitution or not. The Supreme Court, in ruling on those rights, holds the responsibility for "upholding the honour of the Crown" (ie, the Queen's treaties) even when governments fail to.

Aboriginal and treaty rights are "recognized and affirmed" in the constitution, but they exist anyway. They weren't created by the constitution nor can they be destroyed by changing it.

They are here to stay, and they give rise to the "duty to consult and to accommodate" Aboriginal communities when any development is proposed that may infringe on those rights.

Treaties can only be changed through negotiation and with consent.

You are desperatly twisting words trying to maintain a fiction you have created in your own mind.

Edited September 13, 2011 by jacee

TimG · September 13, 2011

Aboriginal and treaty rights exist whether they are in the Constitution or not.

The "Constitution" of Canada is a collection of documents and conventions that have accumulated over time. It is not simply the Constitution Act of 1984. What the Constitution Act of 1984 does is lay out the principals that should be used when interpreting the many other documents and conventions. That does not mean that Canadians have no ability to change how these other documents and conventions affect their lives. Any provision inherited from these legacy documents and conventions can be overridden by inserting specific wording into the Constitution Act and the court would be obliged to follow the most up to date wording.

As for aboriginal rights the constitution says this:

35.1 The government of Canada and the provincial governments are committed to the principal that, before any amendment is made to Class 24 of section 91 of the "Constitution Act, 1867", to section 25 of this Act or to this Part,
1) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and

2) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.

Note what it does not say. It does NOT say aboriginal peoples can veto any change. It does not even say they should be consulted. Only that they can participate in discussions. Why would such a provision be put in the act if it had no legal force?

As for the honour of the crown: The only way there would be any talk of a unilateral change to the constitution is if the aboriginals started acting ways that show that they have no honour where honour includes showing respect for needs and aspirations of the non-aboriginal majority of people who living in this country.

Edited September 13, 2011 by TimG

jacee · September 13, 2011

So what?

http://www.ainc-inac.gc.ca/eng/1309374239861

Nonsense. The only people who care about such things are the left wing Europeans who are not exactly in a position of strength in the world economy any more. In any case, such a move would not happen unless the court disrupted the status quo with ruling that Canada simply cannot afford to to implement. In that scenario politics will be quite different.

That said, you now appear to concede that legally Canada is entitled to do whatever it wants and you are depending on some form of international peer pressure.

Ya Aboriginal and treaty rights will just disappear ... when pigs fly.

But go ahead and delude yourself.

Hell, strap on some wings and prove me wrong! :lol:

Edited September 13, 2011 by jacee

TimG · September 13, 2011

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Edited September 13, 2011 by TimG

charter.rights · September 13, 2011

The only way there would be any talk of a unilateral change to the constitution is if the aboriginals started acting ways that show that they have no honour where honour includes showing respect for needs and aspirations of the non-aboriginal majority of people who living in this country.

Hogwash. There will be no unilateral changes because it is illegal under the Constitution amendment procedures.

The needs of non-aboriginal Canadians are irrelevant to the rights and freedoms protected under the Charter. The "Honour of the Crown" is a legal concept that guarantees that the Crown (and its subordinate government) will always act in good faith in the best interests of aboriginal people....and that would include any attempt to amend the Constitution without their consent.

g_bambino · September 13, 2011

Aboriginal and treaty rights exist whether they are in the Constitution or not. The Supreme Court, in ruling on those rights, holds the responsibility for "upholding the honour of the Crown" (ie, the Queen's treaties) even when governments fail to.

The honour of the Crown is an expression of the duty of the Crown - the Queen-in-Council (government), the Queen-in-Parliament (parliament), and the Queen-on-the-Bench (courts) - to uphold its end of the deals set out in the treaties. It isn't a law; it does not empower the Supreme Court or the governor general to stop parliament from amending the constitution, including the treaties within it and the rights within treaties. No treaties, no rights, nothing for the Supreme Court to base its rulings on.

You seem to completely misunderstand the entire system of government. The court is not empowered to make, amend, or preserve laws (which treaties are), for the honour of the Crown or otherwise. That is solely the domain of parliament. And it is through that body - via the elected and/or appointed representatives therein, in constituencies or parliamentary committee hearings - that opponents to changes to the constitutional treaties can try and exert their influence. Canada is a parliamentary democracy, not an autocracy or an oligarchy. That's why it's public, political backlash plus the difficulty of the constitutional amending process - not the court - that prevents parliamentarians from even considering removing the Aboriginal rights set out in the treaties. There's nothing to gain and everything to lose from it.

[c/e]

Edited September 13, 2011 by g_bambino

cybercoma · September 13, 2011

Nonsensical is your persistent and misguided belief that the Supreme Court can prevent parliament from altering the constitution, including the Charter and treaties within it. Nobody said altering the constitution would be simple - that's your red herring; of course it is difficult to alter the constitution. Nor did anyone say it would be a good idea. But it can be done; and, so long as it is done according to the constitution, there's nothing the Supreme Court or, since Canada is a sovereign nation, any external body can do about it short of invading and overthrowing the entire govenmental structure.

That doesn't really have anything to do with what's being said. The treaties made with the aboriginal peoples exist outside of the Canadian Constitution and the Charter. They're an agreement between the First Nations and the Crown.

You were the one that argued with me that Canada is not a de facto Republic, rather the Crown was the supreme authority. Now, you're trying to argue away the fact that the Crown has an obligation outside the powers and jurisdiction of the Canadian government, the Constitution and the Charter, although the government has to administrate these agreements. They cannot abrogate their responsbiility regardless of how a few hundred electees vote.

g_bambino · September 13, 2011

ThatThe treaties made with the aboriginal peoples exist outside of the Canadian Constitution and the Charter.

Er... No. They're a part of the constitution and explicitly mentioned in the Charter (which itself is not separate from the constitution, contrary to your implication).

[T]he Crown has an obligation outside the powers and jurisdiction of the Canadian government [and] the Constitution...

The three are inseperable.

They cannot abrogate their responsbiility regardless of how a few hundred electees vote.

Should those electees have approved of something blatantly illegal (such as trying to amend the constitution without going through the set amending process). Otherwise, it is illegal for the Crown-in-Parliament to deny Royal Assent to, or the Crown-on-the-Bench to overturn, a lawful bill passed by parliament. That was settled 300+ years ago.

[+]

Edited September 13, 2011 by g_bambino

jacee · September 13, 2011

The situation of Aboriginal Peoples in Canada as it is and has been is untenable. No country that aspires to be healthy, respected and successful can maintain its Aboriginal people in poverty and distress. Six generations of mandatory incarceration in largely punitive residential schools have decimated and devastated Aboriginal families and communities. With funding for reserve schools, health, social services, etc. at lower levels than for other Canadian families, the struggles for them are endless and debilitating. Governments have failed to address land claims in a timely manner, maintaining the dependency of Aboriginal communities.

Modern rulings of the Supreme Court have pointed the way to solutions that will engage Aboriginal people in development that is proposed for their traditional territories and involve them in negotiating for shares in profits, jobs, training, education, etc. in those developments.

While land claim continue to drag on at a snail,s pace, the 'duty to consult and accommodate the rights of Aboriginal Peoples, based in the treaties or outright Aboriginal title where there are no treaties, affords communities opportunities to move forward in becoming independent, self-sustaining healthier communities.

The rulings are not altruistic, but acknowledge existing (never extinguished) rights: whether by treaty or Aboriginal title, Indigenous Peoples retain the right to sustain themselves - earn a living - from the land and its resources, and any development activities on their traditional or treaty lands.

Not just in Canada, but around the world, former colonies are facing up to the rights that Indigenous Peoples still retain despite the encroachment and oppression of rights that has characterized colonial and post-colonial countries.

As information about the new legal realities filters down to Canadians, a new awareness is developing that there will be significant changes in the way industry and business, municipalities and other governments relate to Aboriginal communities where development infringes on their territories and rights.

Mining, forestry, oil/gas extraction and pipelines, municipal development, etc. have all become aware of their legal obligation to consult with and to accommodate the rights of Indigenous Peoples to benefit from those initiatives.

While some may resist these changes and demand that government roll back the clock, the courts have upheld these rights repeatedly and they are now the rule of law in Canada. Clarification through Supreme Court case law is ongoing, and federal, provincial and municipal policies and procedures are being developed and refined since governments at all levels, and indeed all Canadians, are obligated to abide by the rule of law.

Internationally, the recent UN Declaration on Rights of Indigenous Peoples addresses these issues and provides a common reference point for countries. While Harper initially blatantly refused to sign the document, he sheepishly caved in when the UN denied him a seat on the Security Council. Combined legal, political and economic pressures outside and within Canada have and will continue to move these issues forward.

While there are many many examples of Aboriginal protests leading to court rulings on Aboriginal rights, the case of Grassy Narrows is a recent good example:

http://freegrassy.org/2011/08/01/grassy-trappers-win-major-legal-victory/#more-2399

Aug 17, 2011

Landmark legal victory could end clearcut logging in Grassy Narrows Territory(Toronto) – Yesterday the Grassy Narrows First Nation (Asubpeeschoseewagong Netum Anishinabek) won a major victory in their more than decade long battle to stop clearcut logging in Grassy Narrows’ traditional territory. Grassy Narrows Chief and Council welcome the decision of the Ontario Superior Court of Justice to protect the rights promised to the Anishinaabe from interference by Ontario. Madam Justice Mary-Anne Sanderson’s decision, over 300 pages in length, finds that the Government of Ontario does not.have the power to take away the rights in Treaty 3 by authorizing development including logging and mining.

(See above link for more ...)

For background see ...

CLEARCUT DEFIANCE

http://www.montrealmirror.com/ARCHIVES/2003/032003/news3.html

This is but one example of how the Supreme Court rulings in such cases are now being applied in provincial courts to address conflicts arising from provincially approved projects. It is likely that there will now be a negotiation process to determine whether any logging will occur and how it will be done to minimize disruption of traditional ways of life, and how the Grassy Narrows people will participate in and benefit from the industry in that area. Clearcutting devastates environments, ("The trees are gone, the animals are gone, the water is poisoned.") but selective logging can be sustainable. It remains to be seen how or whether logging will resume.

There is no question of whether the legal rights of Indigenous Peoples in Canada will be 'cancelled'. There is only the question of how they will be implemented and that will vary by community and be subject to negotiation with relevant governments and private interests.

Edited September 13, 2011 by jacee

g_bambino · September 13, 2011

the courts have upheld these rights repeatedly and they are now the rule of law in Canada.

Certainly the courts have upheld Aboriginal rights. The courts base their rulings on the law and Aboriginal rights have been the law in Canada for centuries.

There is no question of whether the legal rights of Indigenous Peoples in Canada will be 'cancelled'.

Of course not, since, as I said, the potential political backlash combined with the difficulty of the process of amending the constitution turns politicans completely off the idea. It is not, though, because the Supreme Court says these rights can't be cancelled.

[c/e]

Edited September 13, 2011 by g_bambino

jacee · September 13, 2011

From "Clearcut defiance" (link above)

Community context ...

"Abitibi's clearcuts aren't the first disaster to hit Grassy Narrows, or the second or the third. In 1962, the federal government discovered gold on the original reserve. How our gold got buried under their land remains unsolved. The entire community was moved that year to their current reserve moved that year to their current reserve where they started a salmon fishery with the compensation money. Eight years later, a Dryden pulp mill - then called the Reed Paper Company, but it changes names every few years - dumped 50 tons of mercury into the English and Wabigoon rivers. The fishery was wiped out and, as of last year, 86 per cent of the community show one or more symptoms of mercury poisoning according to a study by Dr. Masazumi Haroda, who has been following the Grassy Narrows for over 30 years. Next they tried growing wild rice, until Ontario Hydro built a dam and raised water levels throughout the area, costing them 90 per cent of their harvest.

"The population of Grassy Narrows is 800 people, three quarters of them are under the age of 17 and it's not because under the age of 17 and it's not because they have a particularly high birth rate," says Thunder Bay Indymedia editor says Thunder Bay Indymedia editor Dave Clement. "It's because most of the older people are dead." Dave Clement. "It's because most of the Dave Clement. "It's because most of the older people are dead." Environmental diseases are the leading cause of death.

A 10th of the community have Lou Gehrig's Disease, caused by mercury poisoning, and an eighth have cancer - the depleted-uranium affected areas of Iraq aren't this bad. Other causes include alcohol, gas-sniffing, suicide and murder.

"Nothing you've seen in any Afghan refugee camp will prepare you for refugee camp will prepare you for Grassy Narrows," says Concordia anthropology graduate student Tiffany Ryan. "The place is notorious in the profession. Anthropologists go there to profession. Anthropologists go there to study the problems and turn into aid workers because they have no choice."

__________

A personal story ...

"Another warrior, Charlie, 48, has a soft and slow voice that can be difficult to follow, but his stories are worth the effort. He was put in residential schoo at the age of seven and escaped severa times, each time getting sent to a schoo further from home. Four years and six escapes later, he was in a school near Sault Ste-Marie, where the nuns beat Sault Ste-Marie, where the nuns beat him unconscious with hockey sticks. He still has the scars."I knew that if I stayed, they'd kill me, so I escaped again. I made it to Winnipeg I escaped again. I made it to Winnipeg [1,450 kilometres away] on foot through the bush, living off the land, fooling the police dogs in the woods. They didn't catch me that time until I was 21," he says. The other men his age have similar residential school stories. Nothing can happen to them in jail or in a gunfight that's worse than what already has."

jacee · September 13, 2011

Certainly the courts have upheld Aboriginal rights. The courts base their rulings on the law and Aboriginal rights have been the law in Canada for centuries.

Of course not, since, as I said, the potential political backlash combined with the difficulty of the process of amending the constitution turns politicans completely off the idea. It is not, though, because the Supreme Court says these rights can't be cancelled.

[c/e]

:lol:

"Can't" is pretty much a moot point at this stage, not worth wasting words on. Constitutional change is irrelevant since Aboriginal rights continue to exist anyway and as you said, "have been the law in Canada for centuries".

"Won't" is the reality.

Anyone holding out hope that Aboriginal rights will be 'disappeared' will be disappointed.

Edited September 13, 2011 by jacee

g_bambino · September 13, 2011

"Can't" is pretty much a moot point at this stage, not worth wasting words on.

And yet, you wasted so many words trying to defend your inane theory that the Supreme Court, as "representative" of the Crown, could stop parliament from amending the treaties within the constitution.

"Won't" is the reality.

Sure. Just not for the reasons you initially posited.

jacee · September 13, 2011

And yet, you wasted so many words trying to defend your inane theory that the Supreme Court, as "representative" of the Crown, could stop parliament from amending the treaties within the constitution.

Sure. Just not for the reasons you initially posited.

Your misinterpretation of my words is your reading comprehension problem to sort out.

g_bambino · September 13, 2011

Your misinterpretation of my words is your reading comprehension problem to sort out.

Your babble is there for everyone to read. No less than three people corrected your errors. The comprehension problem thus seems to lie fully in your hands.

jacee · September 13, 2011

And yet, you wasted so many words trying to defend your inane theory that the Supreme Court, as "representative" of the Crown, could stop parliament from amending the treaties within the constitution.

Sure. Just not for the reasons you initially posited.

Your misinterpretation of my words is your reading comprehension, or intentional misrepresentation problem to sort out for yourself.

Edited September 13, 2011 by jacee

g_bambino · September 13, 2011

Your misinterpretation of my words is your reading comprehension, or intentional misrepresentation problem to sort out for yourself.

Your babble is there for everyone to read. No less than three people corrected your errors. The comprehension problem thus seems to lie fully in your hands.