This Is Not the End of the Story
The lasting promise of section 35
Rights of the Aboriginal Peoples of Canada
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
— Constitution Act, 1982
This is the story, or at least one part of the story, of how section 35 came to be. Like any good story, it has to start somewhere, and it starts with Harry Chingee, chief of the Sekani people, who was showing me how to cast a fly rod, while my friend Jack Woodward was wading in the middle of a fast-flowing river. We were near the town of Mackenzie, in central British Columbia, although it did seem like the North to me at the time. It was summer 1977. Sitting on the grassy riverbank, in a forest clearing down a hill from Harry’s log house, I was far from Glasgow, where I was born, and far even from Vancouver, where I had arrived via Toronto and set up a law practice. Jack and I were representing the Sekani band for a royal commission hearing , whose purpose I have long since forgotten. What I haven’t forgotten is how Harry’s people had been displaced from their homes the decade before, when the W. A. C. Bennett Dam was built on the Peace River.
As our catch sizzled in a small pan by the water’s edge, a couple of big trucks thundered along the road. “Are they your trucks?” I asked Harry. “Are you kidding?” he replied. “They belong to the logging company, and they come and go as they please.” Later, as we relaxed by a crackling fire, I pressed him again. Harry, who just passed away two years ago, was a quiet man, but after a long pause he replied, “Ian, I can’t stop those damn trucks. I don’t have that kind of power.” I asked what he would ask for if he were to have some say over the loggers. He told me his people just wanted to be recognized and included, to have a “piece of the action,” by which he meant having a say in the place and having their historic land rights recognized.
Later that week, after we’d left Harry’s place, Jack and I flew in a small plane over Williston Lake, the vast reservoir behind the hydroelectric dam. Our pilot mentioned how many of the trees had been left standing in the river valley before the flooding , ironic considering all those logging trucks. BC Hydro had said there was no market for the wood, and, besides, it was in a hurry. But now those trees would sometimes rise up from the floor of the lake, shooting to the surface like ballistic missiles. Occasionally, they hit Sekani canoes, holing or capsizing them. Other times, canoes would get caught in a tangle of debris. People had died in both ways.
I was a young , earnest lawyer at the time, and I thought I was familiar with Aboriginal rights. I had read the landmark Calder case. I had even spent three years with Tom Berger, the future judge who argued that case, as his assistant on the historic inquiry into a proposed pipeline through the Mackenzie Valley. But I was discovering that I still had a lot to learn.
Maybe the story actually starts in the late 1950s, in a small law firm in North Vancouver. The office belonged to Tom Hurley, a flamboyant and heavy-drinking criminal lawyer. His wife and secretary was Maisie Hurley, an immigrant from England who had founded a newspaper with Indigenous women, The Native Voice. One day, Tom returned from lunch with his studious (and sober) law student, Tom Berger, and chided Maisie for accepting an “Indian law case.” She walked with the aid of a stick, and when she heard those words, she banged it on the desk: “The y own this land. The y never gave it up. The Royal Proclamation of 1763!”
After her husband died, Maisie Hurley asked Berger to take another “Indian law case.” Two First Nations men from the Nanaimo area, Clifford White and David Bob, had been charged with having six deer carcasses during closed season, contrary to the provisions of the Game Act. Berger argued they had a right under the treaties signed by James Douglas, British Columbia’s first governor. That argument wasn’t going anywhere with the magistrate, so Berger then raised the Royal Proclamation — for the first time in any court. No luck. But a reporter for the Province picked up the idea: “Lawyer Claims Indians Own Province,” the headline read.
Berger received plenty of negative calls, and then he heard from Chief Frank Calder, who said the Nisga’a had been trying to argue the same thing for over a century. Berger took their case, Calder et al. v. Attorney-General of British Columbia, all the way to the Supreme Court of Canada. In 1973, the court ruled that Aboriginal title had indeed existed when George III issued the Royal Proclamation centuries before. That decision was the first time the Canadian legal system acknowledged the existence of Aboriginal title and that such title existed independent of colonial law. The court was split, however, on whether the Nisga’a claim was valid. Three judges ruled that while Aboriginal title may have existed at one point, it had since been extinguished. Three other judges affirmed Nisga’a title, arguing that it had never been extinguished through treaty or statute. The seventh judge dismissed the case on a technicality. The federal justice minister, John Turner, was so impressed by Berger’s legal skills that he appointed him to the Supreme Court of British Columbia.
We could probably start this story another way entirely. In the early 1970s, I was the head of the Storefront Lawyers in Vancouver when I began working with Berger, by this time a judge, on a unified family court project. Not long after that, Pierre Elliott Trudeau, who had a minority government dependent on the support of David Lewis, appointed Berger (a former NDP member of Parliament and B.C. party leader) to head a royal commission on the proposed Mackenzie Valley Pipeline, which would carry Alaskan and Canadian delta gas south. It was to be the largest private construction project in history. Berger hired me as his assistant.
The Berger Inquiry was officially launched by an order-in-council on March 21, 1974. It was Berger’s idea to hold the bulk of the hearings away from Ottawa, a major departure from the way public inquiries were usually run at the time. “I want the people who live in the North, who make the North their home, to tell me in their own language and in their own way what they would say to the government of Canada,” he said. One hearing , in Old Crow, Yukon, lasted almost a week; we listened to the whole town.
Because the hearings were held far from the country’s population centres, extensive media coverage was crucial. CBC North broadcast every night in six languages, and the journalist Martin O’Malley brought the events to Globe and Mail readers almost every day. The inquiry was shown regularly on the national news. In fact, no previous inquiry had been broadcast the way this one was (and only the Truth and Reconciliation Commission has had such coverage since). Canadians began to notice.
The process helped develop a whole generation of Indigenous leaders. Nellie Cournoyea, from Inuvik, worked with the Committee for Original People’s Entitlement, which represented the Inuit. She would become the sixth premier of the Northwest Territories, and later chaired the Aboriginal Pipeline Group and the Inuvialuit Regional Corporation. Frank T ’Seleie was a young Dene chief who publicly challenged Bob Blair of Foothills Pipe Lines. He said he would put his body in front of the construction equipment. After land claims were settled, T ’Seleie became a proponent of the pipeline, which then included Indigenous partners. The boyish Stephen Kakfwi helped organize the Dene’s presentations to Berger. He became president of the Dene Nation and the ninth premier of the Northwest Territories. Dave Porter, who used to carry equipment for CBC crews, was elected to the Yukon Legislative Assembly and went on to be executive director of the Yukon Human Rights Commission and a negotiator for the Kaska Dena Council. Jim Antoine, then the quiet but charismatic twenty-six-year-old chief of the Fort Simpson Dene, greeted John Paul II on the 1987 papal visit and also became a premier of the Northwest Territories. And Georges Erasmus cut his teeth at the inquiry, appearing for the Dene Nation (called the Indian Brotherhood at the time). He became national chief of the Assembly of First Nations and co-chaired the Royal Commission on Aboriginal Peoples.
After the Berger Inquiry ended in April 1977, I returned to practising law in Vancouver, which led me to that Sekani client and the opportunity to fish with Harry Chingee. Before we left town, Harry took Jack Woodward and me, along with Jim Fulton, a local probation officer, and his wife, Liz, up a bumpy logging road to the top of Morfee Mountain. At the summit, a small group of Sekani were having a late-afternoon picnic. I recognized some of them from the Berger hearings, including a good friend of Harry’s, who seemed like a sort of spiritual leader. As we watched the sunset, Jim and I confessed that we were going to try to win the federal NDP nominations in Skeena (for Jim) and in Vancouver Kingsway (for me). Both would be tough fights, and we knew it would be even tougher to knock off the incumbents in the general election that would have to be called sometime in 1979. Harry’s friend told us that we were both going to win. Everyone cheered, and we did a little dance holding hands (it was the ’70s, after all).
Harry’s friend was right: Jim and I won upset victories in the May 1979 general election, which produced a minority government that lasted to December, under Joe Clark. In February 1980, Trudeau rose from the dead and formed a majority government — but with only two of the seventy-five seats that represented the four Western provinces. (The Liberals didn’t have a seat west of Lloyd Axworthy’s in Winnipeg.) Fulton and I were re-elected.
In the run-up to the 1980 Quebec referendum, the Parti Québécois premier, René Lévesque, led the separatists, while Trudeau led the federalist side. Canada was lucky to have him there. (Joe Clark, when he was prime minister, had decided to leave the fight to the province’s opposition leader, Claude Ryan.) It’s impossible to predict what might have happened without federal involvement, but Trudeau and others campaigned actively against separation, and on May 20, three months after the Liberals had regained power, the No side, against sovereignty, won by 59.56 percent.
Before the vote, in a speech in Montreal, Trudeau stated that the referendum showed the need for change, and he pledged he would work with the premiers to “renew” Canada’s constitution. He knew that he’d have more influence in any constitutional discussion if his cabinet included representation from the West. To this end, he was in talks with Ed Broadbent about tapping some NDP MPs as ministers. Broadbent ultimately rejected the idea but indicated he would support Trudeau’s constitutional package. Unknown to Trudeau or the public, this produced what amounted to a revolt inside the NDP caucus.
A constitution is the fundamental law of any country — the rules by which it governs itself. In 1980, Canada’s constitution was essentially the British North America Act of 1867. Any significant changes had to be made by the Parliament of the United Kingdom on the advice of Canada. After numerous meetings with the premiers, and numerous tentative agreements that failed when provinces backed out or refused to support him, Trudeau rather courageously presented his constitutional package, which included a Charter of Rights and Freedoms and the promise of a national referendum on the amending formula, on October 6, 1980. It’s hard to overstate the intensity of the debate that followed. At one point, the British ambassador, Sir John Ford, even got kicked out of Canada for suggesting things might not get past Westminster.
Trudeau soon found that only two provinces, Ontario and New Brunswick, supported his plan. The others — the so-called Gang of Eight — were vehemently against it. Quebec wanted a veto on any constitutional amendment; Saskatchewan and Manitoba were against a court-interpreted Charter; Alberta, Newfoundland, and Saskatchewan wanted provincial resource control embedded in the Constitution; and so on. Within the NDP caucus, Pauline Jewett and Margaret Mitchell wanted to see language around women’s rights. Svend Robinson wanted the Charter strengthened generally. Lorne Nystrom and Simon De Jong wanted Saskatchewan’s concerns addressed. And Jim Manly, Jim Fulton, and I wanted Aboriginal rights included.
Of course, the story really begins long , long ago, with the tragedies and injustices that Indigenous peoples have faced on this land for centuries. I began to appreciate this part of the story as a young criminal lawyer in Vancouver, working near Hastings and Main. And as counsel to Tom Berger during the Mackenzie Valley Pipeline Inquiry, I started to see how First Nations could regain real political and economic power within the modern Canadian framework through the formal recognition of their rights. The scope of those rights became clear to me during Berger’s countless meetings, from Old Crow to Fort Smith, as people spoke of their love of the land and their use of that land for hunting and fishing since time immemorial. They had never surrendered title, even as they had lost access to those lands and the resources that went with them.
In the latter part of 1980, the constitutional debate was taking place in joint hearings before the Senate and the House of Commons. Jack Woodward had appeared there as counsel for the loquacious and determined George Watts, chief of the Nuu-chah-nulth Tribal Council, who was arguing for a clause that would protect Aboriginal rights. Years before, in 1969, Pierre Trudeau had called those rights “historical might-have-beens.” To his credit, Trudeau changed his mind over the course of the debate. This may have been because he needed the NDP’s backing for his constitutional package. Whatever the reason, he sent his loyal lieutenant and justice minister, Jean Chrétien, to negotiate our support. That is why I found myself in Broadbent’s office — 653C — a few days later. As chance would have it, Don Rosenbloom, who was counsel with Berger in the Calder case, was in Ottawa; I asked him to join me, Ed, and Marc Eliesen, Broadbent’s chief of research, to help negotiate a deal. Woodward happened to be back in Ottawa, and I put him to work as well.
Eliesen concentrated on drafting the amendment that clarified provincial control of resources (now section 92A of the Constitution Act, 1867). This would help bring Saskatchewan and Alberta on board. Jack, Don, and I concentrated on the Aboriginal rights amendment. Chrétien was at first reluctant. “I have to report to the boss, you know,” he said as the sun began to set over the Ottawa River. But with the help of some freshly brewed coffee, he hung in there. We discussed the issue and its potential ramifications. (I also knew that he was under intense pressure from Indigenous groups, who were literally camped in offices, buildings, and tents around downtown Ottawa.)
A vote was called in the House on another matter, so we took a break from the negotiations. I scurried back to my office, in the Confederation Building , to find Woodward at the typewriter drafting a clause. He was the only one of us who knew how to type. I took his draft back to Rosenbloom. Don and I thought the wording was too general, so Don went next door to Ed’s secretary’s office and called Vancouver. He talked to Tom Berger and Jim Aldridge and came back saying that Berger, in particular, had advised us to keep the wording general. This would give the courts space to develop the law. We took Jack’s draft and tweaked it a bit more — made it simpler, really. And we gave this to Chrétien.
The next day, Chrétien took the clause to the joint parliamentary committee, co-chaired by Serge Joyal and Harry Hays. Harry Daniels, president of the Métis National Council and the Native Council of Canada, had been attending the hearings. He grabbed Chrétien by the lapels as he was going into the meeting and told him not to forget the Métis people. Svend Robinson, who was standing nearby, quickly scribbled down a definition: “Aboriginals include Indian, Inuit, and Métis.” (I have always thought that if there is a heaven, a prominent place should be reserved there for Harry. I suspect Svend doesn’t believe in heaven, but if he does end up there, he should get a prominent place too.)
Ultimately, the House of Commons passed the draft constitutional agreement in February 1981, but several provinces challenged Trudeau’s plan to unilaterally patriate the Constitution. That September, the Supreme Court ruled that such an act might be legal, but that it violated existing constitutional conventions. So the prime minister was forced to go back to the premiers one more time. Finally, on November 5, 1981, Ottawa reached a deal with the provinces — all except Quebec. In the process, the clauses that had entrenched Aboriginal and treaty rights, as well as women’s equality rights, in the new constitution were somehow removed.
Tom Berger responded to the removal of Aboriginal rights from the agreement in an op-ed for the Globe and Mail and in a speech he delivered in Guelph, Ontario:
No words can deny what happened. The first Canadians — a million people and more — have had their answer from Canada’s statesmen. They cannot look to any of our governments to defend the idea that they are entitled to a distinct and contemporary place in Canadian life. Under the new constitution the first Canadians shall be the last. This is not the end of the story. The native peoples have not come this far to turn back now.
Because they must be appear impartial, judges are not supposed to speak on political matters. But should a judge remain silent if, by instead speaking out, he may prevent a great injustice to a minority?
Berger put his judicial career on the line, and he was rebuked by Trudeau (who eventually backtracked). A conservative judge complained to the Canadian Judicial Council, which cited Berger for an “indiscretion.” In the end, Berger resigned. He spoke out, and he paid the price. It probably cost him a future appointment to the Supreme Court, which was a great loss for Canada. But that’s what civil disobedience is all about. His unique voice made a difference in the constitutional debate, especially his advice to keep the clause general so it could grow legally.
If the Judicial Council had tried to impeach Berger, or if the government had failed to restore Aboriginal rights, I believe Broadbent and our NDP caucus would have withdrawn our support for Trudeau’s package altogether, which would have tied the House of Commons in knots. As it was, Indigenous leaders and allies, including the Vancouver lawyer Louise Mandell and hundreds of others, flocked to Ottawa by train, aboard the Constitution Express. They forced the prime minister and the premiers to restore section 35. The word “existing” was added to placate some premiers, but that had little effect. In fact, courts have subsequently said that it actually reinforces the phrase “recognized and affirmed.”
As I look back on the negotiations, I think of the moral courage of Ed Broadbent, who had to step back from his original approval of the package and face the prime minister’s anger. I think of Tom Berger, who put his judicial robes on the line. And I think of Pierre Trudeau himself, who had the intellectual courage to listen and change his mind. George Watts, Jack Woodward, Don Rosenbloom, Jim Aldridge, and Jean Chrétien — they all worked tirelessly. Above all, I think of the steadfastness of Indigenous people throughout Canada, with their leaders and their voices and their drums in all those villages and fish camps. They beat away our fatigue.
I’ve tried to tell this story before, including in my 2018 memoir, Take the Torch. And maybe the right place to start all along would have been with Ronald Sparrow, a fisherman, who just passed away in September. Back in 1984, shortly before he turned forty, Bud was arrested on the Fraser River and charged with violating his Coast Salish band’s fishing licence. But the charge, he argued, violated his rights.
Six years later, in 1990, the Supreme Court of Canada agreed with him. In their landmark opinion, the chief justice, Brian Dickson, and Gérard La Forest held that section 35 should be given a generous, liberal interpretation: “It is clear, then, that s. 35 (1) of the Constitution Act, 1982, represents the culmination of a long and difficult struggle in both the political forum and the courts for the constitutional recognition of aboriginal rights.” The so-called Sparrow test was born.
It’s now been thirty years since Bud’s case was decided and almost forty years since the passage of the Constitution Act of 1982. Section 35 has been cited in over 350 other decisions. In Delgamuukw v. British Columbia, for example, brought by the Wet’suwet’en hereditary chiefs and the Gitxsan nation, the Supreme Court held that Aboriginal title still existed in the unceded territories and would have to be settled. The justices basically said: Government, get on with it. Then, under the leadership of Beverley McLachlin, from 2000 to 2017, the court gave further life to the clause, emphasizing that the duty to consult is grounded in the principle of the Crown’s honour — that its purpose is reconciliation between Ottawa and Indigenous peoples.
Section 35 is a living clause that has revolutionized the relationship between Indigenous peoples and the Canadian state — one that has moved from statute-based laws and old treaties to recognized land claims to enshrined constitutional rights. The courts, to their great credit, have done their part. Now is the time for the politicians. True reconciliation will require further changes in that relationship. The tools are all out there.
Today, we need the political will and perhaps a modern Royal Proclamation — one that will formally recognize Indigenous people as a founding nation of Canada and that will lay out a road map to a workable third level of government. But that is another story altogether, one yet to be written.