Article content continued

Photo by Darryl Dyck/CP

This case, as with other court rulings on pipeline projects, pivoted in part on the Crown’s “duty to consult” those First Nations affected by the plans. But the words “duty to consult and to accommodate” do not appear in the Constitution. Rather, Section 35 simply “recognizes and affirms … existing Aboriginal and treaty rights.”

Then-prime minister Pierre Trudeau’s first-draft constitution in 1980 included the phrase “recognizes and affirms … aboriginal and treaty rights,” but without the word “existing.” The governments of B.C., Alberta and Manitoba strongly objected. They argued — correctly — that no one could say for certain what these rights were and that it would be dangerous and unacceptable to give a “blank cheque” to the courts. To gain their support, Trudeau agreed to drop Section 35 completely from the second draft.

Photo by Jonathan Hayward/CP

But Aboriginal groups and NDP leaders protested the deletion, so a compromise was reached. Section 35 was put back in the final draft, but with “existing” added. The intended meaning of this revision was clear: that Section 35 protected the policy status quo, but did not create any new rights or give the courts a mandate to do so. In the words of Canada’s leading constitutional authority, Peter Hogg, the final wording “would ‘freeze’ native rights in their condition on April 17, 1982.” Without this concession, there would have been no Section 35.

The Western premiers had won, and Aboriginal groups understood this, which explains why the National Indian Brotherhood (precursor to the Assembly of First Nations) declared April 17, 1982, the day Queen Elizabeth came to Canada to proclaim the new Constitution Act, “a day of mourning. The brotherhood’s leader, George Manuel, said it would be “treasonous” for any Aboriginal to participate in the signing ceremony.