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Introduction to Nation Building:
Rights are the foundation of a nation’s identity. Rights are embodied within a nation
through an aggregate of its laws and regulation. But, the fulfilled expression of
rights only occurs when laws and regulations are utilized to create services whose
programs respect rights of the nation’s citizens.
Functional respect for a right comes from a two step process. First, rights must
be recognized. Rights are foundational truths. To be recognized, rights must be seen
for what they are, truth. Rights are recognized when they are accepted as truth.
Second, rights must be affirmed. To be affirmed, they must be supported. Recognized
national rights are supported by an infrastructure of laws, regulations, and services.
A right is literally reconciled with the nation, and its culture, through infrastructure.
So then, in practical terms Respect = Truth + Reconciliation, and, in constitutional
terms Respect = Recognition + Affirmation.
Section 35 of the 1982 Constitution Act recognized and affirmed Aboriginal and treaty
rights. To do this, these truths need to be reconciled through infrastructure that
fulfills their expression. National infrastructure is the framework of rights, laws,
regulations, services, and roles that are fundamental in building programs to protect
or express citizens’ rights (Diagram 1). National infrastructure is founded on rights;
rights are guaranteed by laws; laws define regulations; regulations define services
and roles; and, services and roles provide programs. Programs are not infrastructure.
They are tools created from infrastructure.
Aboriginal rights were not included in the 1867 Constitution Act but rights to assimilate
Aboriginal Peoples and their land were. Canada’s national infrastructure supported
this imbalance of rights and created tools such as the residential school system,
forced relocation, the Indian Act and wardship to fulfill this expression of non-Aboriginal
rights. Aboriginal rights have been recognized in Canada for twenty-seven years but
Canadian national infrastructure (the fabric of Canada) has not been altered to reconcile
with them. By definition, Canada does not respect Aboriginal rights.
Until Canada functionally recognizes Aboriginal rights through reconciliation, Canada’s
infrastructure will continue to develop programs that are tools for Aboriginal displacement
and assimilation. Canada must grow as a nation and allow Aboriginal rights to be
expressed. Canada needs to become the nation the 1982 Constitution Act says it is;
a nation that respects both Aboriginal and non-Aboriginal rights. At first glance,
this seems like an overwhelming task. It is not. Canada simply needs to begin. Canada
is not perfect, but it can be. Meaningful Consultation has the ability to reconcile
Aboriginal rights with Canadian infrastructure. The goal of Meaningful Consultation
under Section 35 is the reconciliation of the preexistence of Aboriginal societies
with the sovereignty of the Crown60. For reconciliation to occur, barriers (EFABs)
to Aboriginal rights must be removed and Aboriginal rights must be included within
Canada’s national infrastructure.
Many legislators and bureaucrats are too close to the system to see the simplistic
flow of national infrastructure. The most expeditious manner to gain functional understanding
of national infrastructure is strip it down to its most basic form and follow it
through Canada’s constitutional history.
After confederation in 1876 and prior to the recognition of Aboriginal and treaty
rights in Section 35, Canada’s approach to Aboriginal Peoples was as if they never
existed. The land that is now Canada was terra nullius61, unclaimed. The 1867 Constitution
Act gave control over Aboriginal people and ownership of their land to the federal
government. All of Canada became Crown land and Aboriginal people became wards of
the Crown. The new Dominion of Canada then went on to develop its national Terra
Nullius Infrastructure to the complete exclusion of Aboriginal Peoples and their
rights (Diagram 2).
Canada was not terra nullius in any way62, but Canada’s national infrastructure in
1982 was. As a consequence of the Terra Nullius Infrastructure, the only path Aboriginal
rights could follow when they were recognized and affirmed under Section 35 was to
create their own Divergent Infrastructure (Diagram 3). This began to create a dichotomy
of rights and infrastructures within Canada; Aboriginal and non-Aboriginal peoples
living in the same country with separate, exclusive rights and infrastructures. These
two infrastructures, one which excludes Aboriginal rights and the other which excludes
non-Aboriginal rights, must be reconciled to avoid two legislatively separate Canadas.
The key to solving the “two Canadas” dichotomy is through the reconciliation of Aboriginal
rights and it hinges around the 1982 Constitution Act. Were Aboriginal rights created
by Section 35 making an exclusive Aboriginal minority in Canada, OR, did Aboriginal
rights exist before 1982 and Section 35 simply recognize and affirm Aboriginal and
treaty rights extending from Canada’s original nation-to-nation relationship with
its Aboriginal Peoples? This dilemma was clearly answered by the Supreme Court of
“More specifically, what s. 35(1) does is provide the constitutional framework through
which the fact that Aboriginals lived on the land in distinctive societies, with
their own practices, traditions and cultures, is acknowledged and reconciled with
the sovereignty of the Crown. The substantive rights which fall within the provision
must be defined in light of this purpose; the Aboriginal rights recognized and affirmed
by s. 35(1) must be directed towards the reconciliation of the pre-existence of Aboriginal
societies with the sovereignty of the Crown 63.”
Aboriginal rights pre-existed the sovereignty of the Crown in Canada and must be
reconciled to the Crown. Aboriginal rights pre-date both the 1867 and the 1982 Constitution
Act. If racist assumptions had not prevailed in Canada through the policy of forced
assimilation, Canada would have emerged as a nation with a Convergent Infrastructure
(Diagram 4) in which Aboriginal and non-Aboriginal rights are respected in one “reconciled”
The “one” reconciled infrastructure in diagram 4 does not indicate that culture-based
Aboriginal infrastructure has no place in reconciled infrastructure. On the contrary,
it means that culture-based Aboriginal infrastructure and non-Aboriginal infrastructure
will co-exist, harmonized to work together as national infrastructure capable of
respecting the rights of both Aboriginal and non-Aboriginal citizens.
Now that Canada has recognized Aboriginal and treaty rights, where is it in developing
reconciled national infrastructure? Federal, provincial and territorial governments
have not been able to reconcile Aboriginal rights to the sovereignty of the Crown
because of EFABs; legislation, regulations, services and roles generated in the Terra
Nullius infrastructure from assimilate-by policies that continue to support the defunct
policy of forced Aboriginal assimilation. To reconcile Aboriginal rights with Canadian
infrastructure, EFABs must be removed allowing the truth, recognition, to replace
them. The second step in respecting Aboriginal rights can then occur, reconciliation
with Canadian infrastructure to affirm Aboriginal rights. Meaningful Consultation
can remove EFABs and reconcile Canada’s infrastructure to recognize and affirm Aboriginal
and treaty rights providing national respect to Aboriginal Peoples.
The current status of Canada’s national infrastructure with EFABs present and with
EFABs removed is illustrated in diagram 5 and diagram 6 respectively.
See Reference Footnotes
© Christian Aboriginal Infrastructure Developments
Last Updated September 15, 2015