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 Canada:
“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” infrastructure.
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.