Constitutional Tools used to Colonize

Perspective:

The Doctrine of Discovery removed Indigenous sovereignty over lands, resources, and peoples replacing it with Crown-assumed sovereignty. Assumed sovereignty provided the authority to create a constitution for Canada that entrenched Crown rights and objectives while excluding rights and objectives of Indigenous Peoples. Finally, constitutionally-derived authority allowed the Government of Canada to replace Indigenous authority and institutions with Crown authority and institutions.

We will look at a few sections of the Constitution Act in Canada that are specifically used to to advance colonization or Indigenous assimilation.

Section 91 (24):

Section 91 (24) is the constitutional instrument for the Government of Canada’s authority to colonize Indigenous lands and people.

Section 91(24) created a Crown-Delegated Jurisdiction to replace sovereign Indigenous Inherent Jurisdiction over lands, resources, and peoples. The authority in section 91(24) is located in the executive branch of the federal government. It is currently vested in the Minister and Department of Indigenous and Northern Affairs Canada INAC. However, that department is in the process of being divided into two departments, Indigenous Services Canada (ISC) and Crown-Indigenous Relations and Northern Affairs Canada (CIRNA). The authority over Indigenous land and resources will reside in CIRNA while authority over Indigenous people will reside in ISC.

Section 91(24) gave authority for its fiduciary duty to the Crown-Delegated Jurisdictions of CIRNA and ISC for Indigenous lands, resources, community infrastructure, services and programming, community funding, and the protection of Aboriginal rights. This fiduciary duty replaces the fiduciary duty and authority of sovereign Indigenous nations for their lands, resources and people.

Section 35:

Section 35, with the support of sections 25 and 91(24), is the constitutional instrument for the Government of Canada’s authority to assimilate Indigenous Peoples. Section 35 created Treaty rights, Aboriginal Rights, Aboriginal citizens  and an alternate rights regime all of which are used as modern assimilation tools in Canada.

1. Treaty Rights:

Section 35 created Treaty rights that replaced Immemorial rights to land and resources: Treaty rights:

• Translate treaties and Land Claim Agreements into domestic agreements with no international status;
• Extinguish Immemorial rights to Indigenous sovereignty that were retained with treaties signed prior to 1982; and,
• Can be terminated by the Government of Canada with their removal from the Constitution Act without the consent of Indigenous Peoples.

Land Claim Agreements entered into under section 35 after 1982 leave no residual Indigenous sovereignty for lands and resources with the Indigenous signatories.

2. Aboriginal Rights:

Section 35 created Aboriginal rights that replaced Immemorial rights to self-determination and culture. Aboriginal rights:

• Include Aboriginal title, self-government, consultation, hunting, fishing, health, education, and etc.; and,
• Can be terminated by the Government of Canada with their removal from the Constitution Act without the consent of Indigenous Peoples.

3- Aboriginal Citizens:

Section 35 created a three-group distinction of First Nation, Inuit, and Métis peoples replacing pre-existing Indigenous nations of ‘distinct peoples’. The three-group distinction:

• Does not meet the international definition of peoples or Indigenous Peoples;
• Disqualifies Indigenous Peoples for the international rights to self-determination and permanent sovereignty over lands and resources; and,
• Disqualifies Indigenous Peoples’ eligibility for international Inherent rights described in the UNDRIP.

Indigenous Peoples under section 35 are a new class of Aboriginal citizen, called Aboriginal peoples, with Aboriginal and Treaty rights defined by the Canadian rule of law. However, section 35 rights can be unilaterally removed from the Constitution Act permanently ending the domestic recognition of Indigenous Peoples in Canada.

4. Alternate Rights Regime:

Section 35, together with section 25, created an alternate rights regime that replaces both Immemorial and international rights as the basis of Indigenous self-determination. The alternate rights regime:

• Was created outside of the international concept of self-determination and excludes Immemorial rights;
• Interferes with developing cultural, political, social, and economic realms under the international right to self-determination;
• Interferes with developing self-determination, societal institutions, and land management regimes based on Indigenous sovereignty and Immemorial rights.

The alternate rights regime provides the illusion of recognition and respect for Indigenous sovereignty, Immemorial rights, and Inherent rights contained within the UNDRIP.

Section 25:

Section 25 created a separate stream in the Canadian Charter of Rights and Freedoms to protect Aboriginal and Treaty rights for Indigenous Peoples while preventing non-Indigenous people from enjoying these rights.¹

Section 25 works with section 35 to create Aboriginal citizens whose rights are an alternate rights regime.

Schedule to the Constitution Act:

There are a number of documents contained within the Schedule to the Constitution Act, 1982 that are instrumental in the Crown’s assuming sovereignty over Indigenous land and resources, including the Royal Proclamation of 1763,² 1870 Order,³ and the 1880 Order.⁴ These documents remain in force in Canada’s rule of law.

Branches of Government:

The Constitution Act creates three branches of government. They are:

1. Judicial Branch;

2. Legislative Branch: and,

3. Executive Branch.

How each one of the branches of government are used as tools in colonization and assimilation are detailed on other pages of the website in this section.

1. (2017) Government of Canada, Your Guide to the Canadian Charter of Rights and Freedoms, Section 25, Government of Canada website. Accessed 2018-03-07. https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html#section25

“Section 25 makes it clear that other rights contained in the Charter must not interfere with the rights of Aboriginal peoples. For example, where Aboriginal peoples are entitled to special benefits under treaties, other persons who do not enjoy those benefits cannot argue that they have been denied the right to be treated equally under section 15 of the Charter.”

2. (1763) The Royal proclamation of 7 October 1763. https://caid.ca/RoyalPro010208.pdf

3. (1870) Rupert's Land and North-Western Territory Order. https://caid.ca/RupLanNorWesTerOrder1870.pdf

4. (1880) Order of Her Majesty in Council admitting all British possessions and Territories in North America and islands adjacent thereto into the Union, dated the 31st day of July, 1880. https://caid.ca/1880Order.pdf