I received a message today from a reader who suggested aboriginal treaty rights should be abolished and if they were protected under the Constitution the 'notwithstanding clause' should be used to overrule the protection.
Ignoring anything else, such a proposal does not work as a matter of Constitutional law.
Specifically, the notwithstanding clause (section 33) authorizes governments temporarily to override the Charter rights and freedoms in sections 2 and 7–15 for up to five years, subject to renewal. The clauses of the Constitution protecting Aboriginal Rights are not among those subject to override.
Section 35 of the Constitution Act, 1982 "recognizes and affirms" the "existing" aboriginal and treaty rights in Canada. Section 35 also provides protection of aboriginal title which protects the use of land for traditional practices. These rights extend to people whom make up the Indian, Inuit, and Métis peoples. The other relevant section is also not subject to the 'notwithstanding' clause. Section 25 states that the Charter does not derogate existing Aboriginal rights and freedoms, including treaty rights.
Of course, there are moral and pragmatic reasons to honour the solemn obligations of the Crown. But that is another post.
5 comments:
Section 35 marks Trudeau as failure as PM.
How so? That's a serious question
In other words; Section 35 allows aboriginals to live in squalor.
What "traditional practices" are being protected in Attawapiskat?
Ah, I understand -- my reply would be that the Treaty obligations have not, in general, been honoured except in the breach. Look to my post of a few days ago
Together with the Indian Act, Section 35 essentially sets up hundreds of tax havens and provides incentives for Status Indians to stay or move to them. Specifically, the feds hold out the promise of free housing, a promise to pay for upkeep and the promise of never imposing not only no income tax or sales tax, but also no property tax. The federal government will pay for any needed infrastructure.
Realizing, the patent absurdity of its ironclad guarantee, the government drags its feet, provides the bare minimum level of funding for housing, upkeep and infrastructure and to, add insult to injury, proceeds in less than timely matter. In other words, the government has every reason to create living conditions that repel even as its moronic promises attract.
The only possible way out this mess, viz., abolishing native rights, abolishing the Indian Act and privatizing reserve lands, has been forever blocked.
The best the government can do is to amend the Indian Act to allow for the creation of fee simple lands and give native bands the power to impose property taxes. However, doing so opens a whole host of other problems. For example, as the idiocy of native self government is maintained in all cases, non natives purchasing native lands have no ability right to take part band elections. There would be taxation but no representation. Moving to a fee simple model also does not eliminate such lands as tax havens.
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