Constitutional Reform

[charter.rights]

And, as I've already said, with the help of the provinces, Parliament can change the Charter of Rights and Freedoms.

Only with the "help of the provinces". Parliament cannot make changes unilaterally. That "help from the provinces" represents the supremacy of the Constitution, and the Supremacy of the Supreme Court of Canada which could over-ride Parliament and the Provinces if the move to amend the Constitution does not follow the intent or procedure of the amending formula.

"52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. "

Edited September 10, 2011 by charter.rights

[fellowtraveller]

When all appeals are exhausted the Supreme Court's rulings are the law and Parliament is NOT above the law. These are treaties, already law, that the Supreme Court interprets when there are challenges.

Wow. If you ever get in legal trouble, do not act as your own counsel.

Treaties are contracts, albeit special contracts. Courts interpret and rukle on the legality of contracts, they don't write them or rewrite them.

The Supreme Court does NOT make law, and their rulings do not create law. Show me an Act, any Act, with the notation that it was amended by anything other than Parliament.

They can and do indicate to the govt that a law contravenes the Charter or Constitution, but that does not make new legislation.

We are utterly screwed if 9 unelected people ever have those kinds of powers.

[William Ashley]

But can parliament change the treaties?

I think not.

They can "renegotiate" treaty if they choose. However this is often done by creating "more modern versions" The corporations that have came out of it to rempresent places such as in Northern Quebec for Inuit claims - had reasonable success to give a cut to the local nunavit or whatever it was - however there were of course also individuals who had a stake in the process that were alienated. You cannot rule peacefully without consent.

[jacee]

No, you're the one talking about things that aren't accepted knowledge, like the idea that the courts are about Parliament, which they aren't.

Well of course it does, but the point is that the courts are not above parliament, and that parliament has the power to make laws, or edit them. Sometimes that's a complicated procedure, but it still holds true. You want proof? Look at the written part of the Constitution of Canada.

I'm really disappointed in you, smallc, making vague assertions without evidence to support your myth that Canada's parliament can get rid of Aboriginal rights when it chooses to. Granted it's a myth that some hardliners like to cling to but that doesn't make it true.

The truth is as repeatedly stated that Canada can only renegoiate treaties and only with "full, prior and informed consent" of Aboriginal communities That's known as FPIC in the business community and they are fully aware and involved in negotiating agreements that allow resource extraction, etc, on traditional Aboriginal lands.

Negotiation, as pointed out by a Senate report, is the only viable approach as the alternative is confrontation.

Changing the law to get rid of Aboriginal rights isn't even mentioned as it is not legally possible.

[charter.rights]

I'm really disappointed in you, smallc, making vague assertions without evidence to support your myth that Canada's parliament can get rid of Aboriginal rights when it chooses to.

You shouldn't be. That is typical of smallc. Making statements based on her opinion and devoid of fact or any reference to back it up.

[Smallc]

I'm really disappointed in you, smallc, making vague assertions without evidence to support your myth that Canada's parliament can get rid of Aboriginal rights when it chooses to. Granted it's a myth that some hardliners like to cling to but that doesn't make it true.

I never really said that at all. It's just something that you're interpreting. The point (that you seem to miss over and over) is that the course are not above parliament, or Section 1 of the Canadian Charter of Rights and Freedoms.

[g_bambino]

The rule of law applies to everyone, including parliament.

Do you think the law just falls out of the sky and we all must abide by it? Parliament is supreme. That's the most basic tenet of the Westminster model under which we live. Whatever rules it must follow are set upon it by itself.

Furthermore, there's an amending formula right in the constitution. Section 38.1 of the Constitution Act 1982 permits the Charter of Rights and Freedoms, which is itself a part of the same Act, to be amended with the resolution of the federal parliament and "the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of the provinces."

[g_bambino]

The British Annexed and claimed most of Canada, and set out to enter treaties.

A statement of the obvious which does nothing to affirm that First Nations possess sovereignty equal to that of the Canadian Crown - and every other sovereign state in the world - and not subject to it.

[g_bambino]

You are wrong.

So says you. Too bad the extant sources say otherwise.

[jacee]

I never really said that at all. It's just something that you're interpreting. The point (that you seem to miss over and over) is that the course are not above parliament, or Section 1 of the Canadian Charter of Rights and Freedoms.

http://laws.justice.gc.ca/eng/charter/page-2.html#anchorbo-ga:l_I-gb:s_25

Aboriginal rights and freedoms not affected by Charter

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including a) any rights or freedoms that have been recognized by the Royal Proclamation of October 1763; and ' any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

Edited September 12, 2011 by jacee

[g_bambino]

http://laws.justice.gc.ca/eng/charter/page-2.html#anchorbo-ga:l_I-gb:s_25

How exactly does that prove to be true your bizarre claim that the courts are superior to parliament?

[Smallc]

How exactly does that prove to be true your bizarre claim that the courts are superior to parliament?

Especially given this:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

http://laws.justice.gc.ca/eng/charter/page-1.html

That also seems to be a spirit throughout the entire Constitution.

Oh, and this:

101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.(55)

http://laws.justice.gc.ca/eng/Const/page-6.html#anchorbo-ga:s_96

Who's superior to whom again?

[jacee]

How exactly does that prove to be true your bizarre claim that the courts are superior to parliament?

I never made that claim. Those are just words that you and smallc want to put in my mouth so you can trash them, but they are not my words and that is not my point.

I merely pointed out that parliament is not above the law, as interpreted and applied by the Supreme Court which is itself one of the three branches of government.

Aboriginal rights do not exist because Canada chose to recognize them and they can't be removed at the whim of the legislature.

This 'who's superior to whom' debate you and smallc want to engage is nonsensical since the three branches of government operate interactively in ways that provide the system of checks and balances on the powers of each.

If parliament did initiate removal Aboriginal rights from the Constitution, Aboriginal Peoples have recourse to the Supreme Court, and failing that they can access the International Courts of Justice too.

Edited September 12, 2011 by jacee

[g_bambino]

I never made that claim.

You did.

I merely pointed out that parliament is not above the law, as interpreted and applied by the Supreme Court which is itself one of the three branches of government.

What you did was cite a section of the Charter of Rights and Freedoms. That in no way indicates either that the courts are supreme over parliament or that the Supreme Court has "applied" the rule that parliament is not above the law.

In order for the system to function, parliament must abide by rules, both written and conventional, constitutional and otherwise. However, again, parliament remains supreme: It may amend the constitution and, provided the amendment is carried out according to the rules set in it, the Supreme Court can do nothing about it.

[+]

Edited September 12, 2011 by g_bambino

[jacee]

Especially given this:

http://laws.justice.gc.ca/eng/charter/page-1.html

That also seems to be a spirit throughout the entire Constitution.

Oh, and this:

http://laws.justice.gc.ca/eng/Const/page-6.html#anchorbo-ga:s_96

Who's superior to whom again?

Please see my previous posts re Sec 25, and re the irrelevance of the nonsensical debate you and gbambino want to have about 'who's bigger. than whom'.

[jacee]

You said:

In order for the system to function, parliament must abide by rules, both written and conventional, constitutional and otherwise.

I said "parliament is not above the law".

Same thing.

[g_bambino]

Please see my previous posts re Sec 25, and re the irrelevance of the nonsensical debate you and gbambino want to have about 'who's bigger. than whom'.

It's your debate, sir. You said the Supreme Court could tell parliament that it cannot alter any treaty and then produced a section of the Charter as some kind of proof, as though the Charter itself couldn't be amended. Are you withdrawing from the discourse, now?

[g_bambino]

I said "parliament is not above the law".

But demonstrate that you're under the mistaken impression that the Supreme Court writes the law.

[Smallc]

Please see my previous posts re Sec 25,

And see my post re Section 1. There's a reason that it's Section 1, you know.

[jacee]

I have made my point, which is simply that Aboriginal and treaty rights exist in Canada and will continue to and parliament cannot change that.

Those rights predate Canada and the responsibility for upholding them was assumed by Canada. It is a matter of the "honour of the Crown", the interpretation of which is a Supreme Court matter.

Changing the Constitution as it pertains to Aboriginal and treaty rights, even as complex and confrontational and counterproductive as that process might be, would not change anything, just perhaps make things more difficult and more confrontational: Aboriginal and treaty rights would still exist and if Canada failed to "recognize" them in the Constitution, the Supreme Court would still have responsibility for interpreting and applying both Aboriginal and treaty rights.

The approach that gbambino and smallc are taking - that parliament can simply change the constitution - is irrelevant and nonsensical since it won't happen as it would be very confrontational, possibly a violation of our international commitments, and it would not change any of Canada's obligations to Aboriginal Peoples anyway.

[g_bambino]

The approach that gbambino and smallc are taking - that parliament can simply change the constitution - is irrelevant and nonsensical since it won't happen as it would be very confrontational, possibly a violation of our international commitments, and it would not change any of Canada's obligations to Aboriginal Peoples anyway.

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.

[jacee]

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.

I never said nor do I believe that the Supreme Court can prevent parliament from attempting to change the constitution. Again you want to put words in my mouth so you can debate your chosen issue.

Of course you fail to respond to the real issue:

Aboriginal and treaty rights exist outside of the Constitution.

Changing the constitution cannot change the fact of their existence.

People who think Canada can avoid, evade, or discontinue Aboriginal and treaty rights are deluding themselves.

If it was possible, it would have been done long ago.

Edited September 12, 2011 by jacee

[bush_cheney2004]

...If it was possible, it would have been done long ago.

...it was done long ago...Canada's Supreme Court sided with your government even when claims were filed back in the 1970's.

[TimG]

Aboriginal and treaty rights exist.

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

The constitution has not been changed because the government keeps hoping that the courts will place some limits on these claims that they can live with. So far the court has placed some limits but has been unwilling to be clear on many critical points so we are stuck in a limbo land with aboriginal groups demanding the moon and a government who knows that can't give them the moon.

If the SCC ever provides clarity and that clarity grants too much to a minority that already has way to many special privileges you can bet the government will act. They won't strip aboriginal rights (but they could) because that would be too hard to get the required consensus. But they will place limits on what those rights mean today and those limits will override all previous court decisions on the topic.

Edited September 12, 2011 by TimG

[jacee]

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

"Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. ... Aboriginal title was first acknowledged in the early 19th century, in decisions in which indigenous peoples were not a party. Significant aboriginal title litigation resulting in victories for indigenous peoples did not arise until recent decades. The majority of court cases have been litigated in Australia, Canada, Malaysia, New Zealand, and the United States. Aboriginal title is an important area of comparative law, with many cases being cited as persuasive authority across jurisdictions."

The constitution has not been changed because the government keeps hoping that the courts will place some limits on these claims that they can live with. So far the court has placed some limits but has been unwilling to be clear on many critical points so we are stuck in a limbo land with aboriginal groups demanding the moon and a government who knows that can't give them the moon.

If the SCC ever provides clarity and that clarity grants too much to a minority that already has way to many special privileges you can bet the government will act. They won't strip aboriginal rights (but they could)

No they can't ...

because that would be too hard to get the required consensus.

... because extinguishment requires the consent of the First Nation, which will happen when pigs fly.

But they will place limits on what those rights mean today and those limits will override all previous court decisions on the topic.

Well you are talking somewhat more sensibly than gbambino and smallc, who just reiterated garbage about how parliament can just do anything it wants to get rid of Aboriginal rights.

At this point the Supreme Court orders federal, provincial and municipal governments and third parties (developers, pipeline/oil/mining/forestry etc corporations to negotiate agreements with Indigenous communities but as you said has not assigned limits. However, where the process or compensation is wholly inadequate, the Supreme Court will address the inadequacy.

Edited September 12, 2011 by jacee