Reflections on Reflections: The Relevance of the Writings of Edmund Burke to the Passage, Interpretation and Implementation of Section 35 of the Constitution Act, 1982

An essay by Canadian author and lawyer, Peter Best

Photo by Jonathan Letniak on Unsplash

By Peter Best 

Any society which destroys the fabric of its state, must soon be disconnected into the dust and powder of individuality. -Edmund Burke- 1790

If it’s not broke, don’t fix it. -Proverbial saying

For at least the first two hundred years of Canada’s early history the relationship between Aboriginals and European-Canadians was very much like a true economic and political partnership. Europeans, especially in the early years, desperately needed Aboriginals’ help to explore the country and in fact to just survive in it. Aboriginals on their part quickly became dependent for their survival on European trade and trade goods.

Neither the Aboriginals nor the Europeans were in “control” of the country and neither exercised dominant power or control over the other, nor did they really think in such terms. For Europeans it was more a time of discovery, adventure, trade and the unconsciously slow but sure attainment of cultural and economic sway over Aboriginals.

In this period, where Canadian history had not yet “hardened,” the relationship between Aboriginals and non-Aboriginals in Canada was more characterized by collaboration and mutual dependency than anything else, and, if there was any control being exercised, it was a form of shared control.

This rather idyllic, loose and fluid situation did come to an end however, as evidenced and epitomized by the Royal Proclamation of 1763, which in no uncertain terms, despite the generous provisions in it for Aboriginals, defined and symbolized the complete attainment and consolidation of British sovereignty over British North America.

The treaties made in the 1800’s again, despite the extremely limited rights reserved to Aboriginals in them, and consistent with the demographic, social and political facts in existence during that period, finished off the consolidation process and put a complete end to the era of shared control that had previously existed.

A legal, constitutional and political regime of complete Crown sovereignty had become established, with there being no thought on anyone’s side, and no discussion ever, about any government, federal or provincial, having to consult with or accommodate Indians with respect to activities on surrendered- not “shared”- lands.

It was during this complete Crown sovereignty era, comprised of most of our country’s history since Confederation, that Canada evolved as a nation-state into a world beacon of material progress, individual freedom, civility, and enlightenment.

That long, bountiful, progressive and forward-looking era, at least with respect to Canada’s relationship with its Aboriginal population, is now ending, and morphing into something retrograde and harmful to us all.

To an alarming degree, because of the enactment of section 35 of the Constitution Act, 1982, and its subsequent “large and liberal” and in “the modern context” judicial interpretation and political treatment, Canada is in a very real sense going back to the era of collaboration and shared power with Aboriginals – to a situation of limited, reduced and emasculated – partially self-emasculated- government  sovereignty – which is creating very negative consequences for all Canadians, Aboriginals and non-Aboriginals alike, and, unless reversed, will continue to do further harm to the country in the years to come.

Before the enactment of the Constitution Act, (the old British North America Act as patriated and amended by the addition of, amongst other provisions, the Charter of Rights and Freedoms and section 35, the latter of which “recognized and affirmed the Aboriginal and treaty rights of the Aboriginal peoples of Canada”, there was no such thing as “Aboriginal law,” as is purported to exist now. Things were quiet on this legal front. Jurisprudence emanating from the various Royal Proclamation and Indian Act issues that had arisen during the first century or so of Canada’s existence, while recognizing and affirming the legal rights that had been conceptualized by the British and then granted to Aboriginals, benignly and unconsciously assumed and supported complete government/Crown sovereignty.

During this long period this jurisprudence stayed relatively harmonious with the ever-changing Canadian social and political zeitgeist, one of the continuous and primary characteristics of which was, certainly beginning after World War Two, the constant and gradual dissolution of legal and social barriers amongst Canadians in general and, with respect to Aboriginals, the weakening of all those ancient prejudices and barriers that for a century had falsely implied that they and non-Aboriginal Canadians were fundamentally different, and fated to permanently live legally and physically apart from one another. This beneficial trend reached its apogee with Pierre Trudeau’s 1969 White Paper, which recommended ending the Indian Act, the reserve system and, generally, making Aboriginal Canadians equal in all respects with all other Canadians.

Tragically for their people, Aboriginal leaders rejected the White Paper and the equality principles it stood for, starting an Aboriginal rights movement that, unfortunately for the best interests of Canada and all Canadians, including our Aboriginal citizens, has completely shattered that previous continuum towards equality, social harmony and continued material progress.

Section 35, almost as a political afterthought, was casually inserted into the Constitution Act. This had the profound, revolutionary effect of elevating the meaning and effect of it to a level potentially beyond the reach and purview of either the federal or provincial elected legislatures of Canada- of making the rights created by the section not subject to the doctrine of parliamentary supremacy. One of the “founding fathers” of our new constitution, who was “present at the creation”, Bob Rae, admitted as much when he wrote in Canadian Lawyer[1] magazine:

“I was a member of the House of Commons when the Charter was debated and remember well the discussions and negotiations around section 35 and the valuable references to the Royal Proclamation. Some protested no one knew exactly what the implications of these changes were, but in fact we knew full well we were making progress in reducing the unilateral prerogatives of governments.” (Italics added)

So, in relation to section 35, they didn’t really know what they were doing. They just carelessly put it in, blithely assuming, without thinking, that it constituted some kind of undefined “progress”, and heedless of the reality that “all Canadians have to live with constitutional mistakes, perhaps forever. We are entitled to great care.” [2]

 They did know for sure, according to Mr. Rae, that they were “reducing” parliamentary supremacy, the basis of Canada’s inherited parliamentary system which, as stated, had worked very well for over 100 years to make Canada the great country that by 1981 it had become. This, in some incoherently understood way, was supposedly “progress” in the minds of our modern constitutional founders.  (Alas for the lack of an Alexander Hamilton or a James Madison amongst them.)

What harm to the country Mr. Rae and his fellow founders have caused: harm foretold by the British parliamentarian and political philosopher Edmund Burke in his seminal 1790 work, Reflections on the Revolution in France[3], (“Reflections”), a profound argument for the presumptive maintaining of the “antient” power of the state, for the presumptive upholding and retaining of inherited institutions and customs, and for presumptively choosing gradual reform over revolutionary change- in Burke’s case, the destructive revolutionary changes he saw beginning to happen in France, which Reflections was written to warn his fellow countrymen against.

Burke, presciently, (but for Canada, in vain), warned against the unintended consequences of lightly and casually jettisoning hitherto successful, foundational modes, principles and traditions of government, such as the doctrine of parliamentary supremacy:

“The science of constructing a commonwealth, or renovating it, or reforming it, is, like every other experimental science, not to be taught a priori. Nor is it a short experience that can instruct us in that practical science; because the real effects of moral causes are not always immediate; but that which in the first instance may be prejudicial may be excellent in its remoter operation; and its excellence may even arise from the ill effects it produces in the beginning. The reverse also happens; and very pleasing commencements, have often shameful and lamentable conclusions”.

Burke urges those who consider radical changes to long-established modes of government that seem to be doing pretty well, to ask themselves first: “Will we be better off with the proposed changes?” Given Mr. Rae’s admission that “no one knew exactly what the implications” of section 35 were- no one apparently knew what the implications of weakening government power in relation to and in favour of Aboriginals were- (They should have!)- it was at best a tossup situation. And, as Burke says, “When the advantages of the possession (the status quo) and of the project (the proposed change) are on a par, there is no motive for a change.”

And Burke urges us not to be shy or deferential to those select few who, purportedly on behalf of all of us, knowing “what’s best” for us, would boldly lead us down new paths of constitutional change involving, as Burke says, “varieties of untried being.” Rather, he urges us to subject them and what they propose or what they actually did to the closest scrutiny. Why?

“The most considerable of their acts have not been done by great majorities; and in this sort of near divisions, which carry only the constructive authority of the whole, strangers will consider reasons as well as resolutions…The sense of mankind authorizes us to examine the mode of acquiring new power, and to criticize on the use that is made of it with less awe and reverence than that which is usually conceded to a settled and recognized authority.”

And:

“Those whose principle it is to despise the antient permanent sense of mankind, and to set up a scheme of society on new principles, must naturally expect that such of us who think better of the judgment of the human race than of theirs, should consider both them and their devices, as men and schemes upon their trial. They must take it for granted that we attend much to their reason, but not at all to their authority.”

It is the citizen’s duty in a free, self-governing country like Canada to follow Burke’s advice here, both in relation to the radical, revolutionary way our higher courts are interpreting section 35 and to the equally radical way our foolish governments are enacting it. (It is regretful that, in this fear and censorship-ridden area of Canadian life, none of our mainstream media, academia, or opposition political parties see fit to carry out this duty.)

Mr. Rae, figuratively patting himself on the back for helping in “reducing the unilateral prerogatives” of our duly elected, representative, federal and provincial parliamentary governments, was congratulating himself and his founder colleagues for doing what Edmund Burke strongly warned against: i.e., a government permanently surrendering and diminishing its own exclusive, sovereign powers- a government permanently fragmenting and weakening itself.

Burke knew that a government’s most basic function is the protection of its sovereignty. He knew, as Holocaust historian Timothy Snyder recently wrote:[4]

“When states are absent, rights by any definition are impossible to sustain. States are not structures to be taken for granted, exploited or discarded, but are fruits of long and quiet effort. It is tempting but dangerous to fragment the state.”

Burke knew that sole government sovereignty is the basis of the state’s ability to create legal rights, to create stable and predictable rules for the necessary regulation of the marketplace, to protect property and civil rights, to enforce the rule of law, and to overcome private interests in favour of the general welfare of the state and all its citizens. A weakened, fragmented government cannot effectively carry out any of these crucial state functions.

In this regard he wrote:

“Though a king may abdicate for his own person, he cannot abdicate for the monarchy. By as strong, or by a stronger reason, the house of commons cannot renounce its share of authority. The engagement and pact of society, which generally goes by the name of the constitution, forbids such invasion and such surrender. The constituent parts of a state are obliged to hold their public faith with each other, and with all those who derive any serious interests under their engagements, as much as the whole state is bound to keep its faith with its separate communities. Otherwise, competence and power would soon be confounded, and no law left but the will of a prevailing force.” (Italics added.)

Section 35, as interpreted by our higher courts and as implemented by our federal and provincial governments, gravely weakens- fragments– the collective Canadian state. Pushed by an irresponsible Supreme Court, the Canadian state has broken faith with all the “separate communities” which rely for their best functioning on its sovereignty remaining intact and inviolable.

In the 2004 Haida Nation case, the Supreme Court of Canada ruled that section 35 meant that British Columbia had a legal duty to meaningfully consult with the Haida Nation band before permitting the transfer of a tree farm license. Before section 35 was passed, and before that radical decision, no government was constitutionally required to obtain any private group’s consent to do anything like that. The Court also ordered B.C. to, “if appropriate”, accommodate the Aboriginal band’s concerns, which has turned out to invariably mean pay them “persuasion” money, or give them “persuasion” benefits.

By this decision, which imposed a constitutional duty on the governments of Canada to first consult and accommodate Aboriginal groups before proceeding with any undertaking or government authorized undertaking, such as a mine or pipeline, that might possibly affect any now-entrenched Aboriginal rights, such as hunting, fishing, gathering and trapping rights, the Supreme Court, beginning its still ongoing undertaking to embody the worst, negative, “lamentable conclusions” to the careless insertion of section 35 into the constitution, in effect, on their own, by most undemocratic judicial fiat, amended our constitution.

 Haida Nation makes Aboriginal constitutional rights virtually equal to federal and provincial constitutional rights, and thus practically untouchable by either of them.  It makes Aboriginal groups a de facto third fount of constitutional sovereignty, whose rights now, such as they are, meaning such as our always overly-activist [5]Supreme Court continues to confusingly define, refine and re-define them from time to time.

Haida Nation represents revolutionary state fragmentation and weakening on a major scale.

We now have in substance, to a significant degree, in treaty areas of Canada, and, with the Tsilhcot’in “aboriginal title” case- an equally state- fragmenting and weakening decision- even more so in non-treaty areas like British Columbia, a confusing, messy, uncertain, unpredictable, (all anathema to private business), litigation-prone, de facto, tri-power federal system. We have this rather than our former, stable, predictable, well-functioning, dual power system, where now, Aboriginal groups all across Canada, based on the consult and accommodate constitutional obligation invented by Haida Nation, and “aboriginal title” solidified by Tsilhot’in, and further based on the voluntary, state-weakening and fragmenting manner our governments, particularly the sovereignty-suicidal federal government, have implemented section 35, have  an economy-damaging, toll-gating chokehold on huge aspects of economic development in rural and wilderness Canada, even in some parts of urban Canada, whether it be the opening of a new mine, a new forestry undertaking, the transfer of Crown land to a municipality, the building of a new dam, a wind power installation, the construction of a new road, transmission line or pipeline, or anything similar.

For anything to get done now in Canada’s resource sector a toll- danegeld- must be paid by any project proponent to all Aboriginal groups nearby who merely say that their Aboriginal rights will be affected by it, and of course, human nature being what it is, in every case, they all do.

Canada could never have become the nation it was in 1981 if the present, resource economy-debilitating, laws in place now were in place during the country’s formative years.

Section 35, Haida Nation, Tsilcot’in, the innumerable, subsequent court decisions that have adopted and extended them, [6]together with further unnecessary, voluntary (!) surrenders of government sovereignty to Aboriginal groups by our governments, are huge, “large step”, practically irreversible constitutional mistakes, violating as they do Burke’s most basic principles of constitutional law-making i.e., firstly, as stated, that governments should never voluntarily give up their own power, and secondly, that “states should take small steps to reform themselves, rather than large ones. Reforms are apt to be more successful if they can be reversed once they start to go awry, and so good planners ensure reversibility.” [7]

Now, relatively tiny, uneducated Aboriginal bands, totally reliant on outside technical and managerial help and on constant subsidization by resource project proponents and the Canadian taxpayer, with virtually no checks on them, and, with section 35 practically unable to be repealed, are able to selfishly pursue their own parochial economic interests-and their own personal interests– at the expense of our already stressed and pressed-upon government treasuries – of otherwise lawfully operating resource-based corporations – of new resource development projects- of both Aboriginal and non-Aboriginal Canadians personally– and at the expense of the Canadian general welfare as a whole.

In the kind of state-fragmented situation Canada is suffering under now, nothing is ever known for sure, and nothing is ever settled.  The rule of men replaces the rule of law. Inevitably in such situations self-dealing in furtherance of private interests occurs.  Aboriginal writer Calvin Helin[8] points the finger in this regard at what he calls the Canadian “Indian Industry”. Burke wrote as follows about this common phenomenon where, in the midst of the legal uncertainty created by a sudden, unbidden constitutional revolution, “unlearned” men and women are placed in positions of “supreme authority”:

“Whenever the supreme authority is invested in a body so composed, it must evidently produce the consequences of supreme authority placed in the hands of men not taught habitually to respect themselves; who had no previous fortune in character at stake; who could not be expected to bear with moderation, or conduct with discretion, a power which they themselves, more than any others, must be surprised to find in their hands. Who could flatter himself that these men, suddenly, and, as it were, by enchantment, snatched from the humblest rank of subordination, would not be intoxicated with their unprepared greatness? …Who could doubt but that, at any expense to the state, of which they understood nothing, they must pursue their private interests, which they understood but too well?”

Anyone who dares to try to carry out Burke’s civic duty of close scrutiny of all this is inevitably met with self-serving, calculated, faux outrage from some part of Calvin Helin’s Indian Industry, along with accusations of being a “racist”, calling to mind Burke’s sardonic comment in this regard:

“It is not with much credulity I listen to any, when they speak evil of those they are going to plunder. I rather suspect that vices are feigned or exaggerated, when profit is looked for in their punishment.”

The attacks on the revenues of the Canadian state as a result of the proliferation of major business undertakings technically situated on or based out of Aboriginal reserves- tax havens and places of privileged fiscal immunity- all the income from which is tax free, is especially wounding to the welfare of the Canadian state, and thus to the Canadian people generally.  Every dollar of untaxed Haida Nation-coerced “impact benefit agreement” income is a dollar lost to either the federal treasury or a provincial treasury. Burke wrote in this regard:

“The revenue of the state is the state. In effect all depends on it, whether for support or for reformation…The revenue, which is the spring of all power, becomes in its administration the sphere of every active virtue…Through the revenue alone the body politic can act in its true genius and character, and therefore it will display just as much of its collective virtue, and as much of that virtue which may characterize those who move it, and are, as it were, its life and guiding principle, as it is possessed of a just revenue.”

There was no genuine need for section 35. There was no public outcry for it. There was very little public discussion of it in advance. There was no outstanding public or Aboriginal ill requiring something like section 35 to remedy.[9] There was no threat to Aboriginal rights or interests. There was the usual Aboriginal Industry general lobbying for more rights and programs, but this was typical of lobbying by many minority groups in that post-Sixties era when people began to relate more to the racial, ethnic or sexual identity group they were part of than to the country as a whole. (Sadly, the trend continues.)

Section 35 and its subsequent history of government sovereignty and revenue impairment are all the product of elitist, top-down, forced, needless and negative change, rather than positive change emanating from some kind of social consensus representing the general will of the people. They did not exercise “great care.” They permitted their exaggerated notions of imagined ills, to be “remedied” by section 35, to distort their judgment, bringing to mind Burke’s assessment of such high-minded busybodies who can’t leave things well enough alone:

“In general, those who are habitually employed in finding and displaying faults are unqualified for the work of reformation: because their minds are not only unfurnished with the patterns of the fair and good, but by habit they come to take no delight in the contemplation of those things. By hating vices too much, they come to love men too little.”

The idea of weakening the powers of government in favour of one race-based group of Canadians was blundering, utopian foolishness, however high-minded the intention behind it may have been. The situation was clearly not “on a par.” As Burke said, the “difference” should have remained “in favour of the possession.”

Such radical reform as is section 35 and its sequalae without there having been some kind of social consensus beforehand is usually harmful, and this has proven to be the case here.

For Edmund Burke, politicians in relatively stable and prosperous states, as Canada definitely was in 1981, should not try to “fix” what isn’t broken with radical, revolutionary change. Governments must be “abused and deranged”, he wrote, before such change should even be considered. The situation should be such that “the prospect of the future must be as bad as the experience of the past” before radical, revolutionary change is seriously considered.

“When things are in that lamentable condition, the nature of the disease is to indicate the remedy to those whom nature has qualified to administer in extremities this critical, ambiguous, bitter portion to a distempered state. Times and occasions, and provocations, will teach their own lessons. The wise will determine from the gravity of the case…but, with or without rights, a revolution will be the very last resource of thinking and the good.”

In Canada’s unfortunate case, the revolution that is section 35 and its government-weakening sequalae was and is the first and worst resource of thinking.

Canada in 1981 was prosperous and stable, the pleasing result of over a century of internal peace, order and good government. This fact alone should have caused our modern constitutional founders to desist in their dangerous and uncertain, fundamentally elitist action of inserting this section- a section of no properly understood meaning at the time– a section whose potential effect was entirely unconsidered– into the constitution.

As Burke wrote of lawmakers taking serious, conservative lessons from the past:

“Old establishments are tried by their effects. If the people are happy, united, wealthy and powerful, we presume the rest. We conclude that to be good from whence good is derived.”

Canada’s past had been good, leading to a generally, relatively, (all things are relative), good national situation in 1981. The careless passage of section 35 was a fundamental rejection of that good. The way it has been subsequently interpreted and implemented by our courts, political and bureaucratic classes is another rejection of that good. The good of our Canadian past and the good efforts of our ancestors to create this good, have been squandered and thrown away.

The blind, heedless insertion of section 35 into the constitution and the profoundly harmful way it has been interpreted by our Supreme Courthave both constituteda total, revolutionary disregard of the beneficial institutions, customs, ways, means and results of the previous 100 years of Canadian nation-building- a heedless rejection of the presumption that existing institutions and mores that have withstood the tests of time ought not to be lightly tampered with- and a heedless rejection of the idea that gradual, piecemeal reform is to be preferred over revolutionary change.

All this rejection of Canada’s successful parliamentary supremacy past has created new and unprecedented barriers to Canadian future economic progress and social unity.

 The Crown sovereignty-legislative supremacy constitutional model that had enabled Canada, up until that time, as a relatively united country, to so thrive and prosper on all fronts-economic, social and political- has been destroyed. The ability of the Canadian state- of Canada’s federal and provincial governments – Canada’s Crowns – to solely embody ultimate political power and authority in the country and to legislate and govern in all Canadians best interests, has been seriously eroded.

The legal confusion caused by the new reality of Aboriginal constitutional sovereignty has caused a breakdown in the equal application of the rule of law, sometimes leading to unchecked, unprosecuted, illegal Aboriginal behavior, thus, by example, creating a general disrespect for the rule of law generally. Thusly is confirmed Burke’s dictum in Reflections that “criminal means once tolerated are soon preferred.”

The vision of Canada as a unified community of common destiny, -a vision long possessed by ordinary Canadians -has been replaced by our elites with a meaner, more illiberal and unenlightened, more pinched and prosaic vision of Canada as a mere race-based community of economic and legal stakeholders – separate communities of racial origin- or, as the writer Amartya Sen describes it, a community characterized by “plural monoculturism.”[10]

The combination of an aggressively pro-Aboriginal, anti-Crown/government sovereignty interpretation of section 35 by courts and governments, which has been unthinkingly endorsed by Canada’s academic and media elites, has greatly magnified section 35’s deleterious effects on Crown sovereignty, Canadian economic development, (even to the micro level of prospecting for minerals), on again, the rule of law, and on Canadian unity, all giving fresh relevance and applicability to Edmund Burke’s assertion:

“To avoid therefore the evils of inconstancy and versatility, ten thousand times worse than those of obstinacy and the blindest prejudice, we have consecrated the State, that no man should look into its defects or corruptions but with due caution; that he should never dream of beginning its reformation by its subversion.”

The Supreme Court of Canada played a big part in creating this mess. They could cease being a continual part of the problem here, and start being part of the solution, by revisiting their government sovereignty-fragmenting interpretations of section 35, and re-interpreting them on an “oops-that’s not what we meant to say basis”, (they’ve done it before), with a view to re-establishing sole, Crown/government sovereignty across the nation, subject only to the Charter of Rights and Freedoms.

In purporting to reform the Canadian state the “founders” of the Constitution Act 1982, by inserting section 35 into it, and our courts and governments, by the manner in which they have interpreted and implemented it, have subverted it.

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Thanks for reading. For more from this author read The Federal Government’s Heedless and Unprincipled Giveaway of Billions of Taxpayer Dollars to Legally Undeserving Aboriginal Litigation Claimants

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[1] July 2014 edition

[2] Gordon Gibson, Tips for the PM: Stay Clear of Constitutional Quagmires– The Globe and Mail, September 17, 2016. Edmund Burke describes such careless constitutional meddlers as “artificers…grossly ignorant of their trade or totally negligent of their duty.”

[3] Penguin Books Ltd. London, 1968

[4] From Black Earth, The Holocaust as History and Warning, Tim Duggan Books, New York, 2015

[5] Paraphrasing Burke, our Supreme Court, in the revolutionary, state-altering manner in which it has interpreted section 35, has eschewed the “practical wisdom” which preceded their “theoretic science”- eschewed the “positive, recorded hereditary title to all which can be near and dear to the man and the citizen, to that vague speculative right, which exposed their sure inheritance to be scrambled for and torn to pieces by every wild litigious spirit.” Examples of this now dominant, super-activist, litigious “wildness” include granting Aboriginal rights to American Indians and declaring in effect that human, material progress is a treaty violation!”

[6] Retired Supreme Court of Canada Justice Jack Major, who was part of the Court which decided and wrote the Haida Nation decision, told this writer in an April 16, 2019 email that he “can’t explain the mushroom effect” of the duty to consult created by it.

[7] Robert Conquest, quoting Cass R. Sunstein articulating this Burkean principle in Reflections on a Ravaged Century, W.W. Norton & Company, New York, 2001

[8] Dances With Dependency- Out of Poverty Through Self-Reliance, Ravencrest Publishing, Woodland Hills, California, 2008. Mr. Helin wrote at page 161: “Even though it is difficult to know what the Indian Industry is “skimming” off the financial resources intended for Aboriginal peoples, there seems to be no question that the amount is substantial.”

[9] This essay is limited to section 35. But the general principles stated herein apply equally to the radical, unnecessary addition of the Charter of Rights and Freedoms to the Canadian constitution, which, as section 35 did, ended Canada’s brilliant, liberal, successful over-100-year era of parliamentary supremacy. It is noted that Great Britain, from whom Canada inherited its former system of parliamentary supremacy, has never felt the genuine need for anything like our Charter of Rights and Freedoms or the American Bill of Rights, or any provision like section 35, where large areas of national, civic life are immune from legislative interference, and the state of civil rights there is no worse than that in Canada or America.

[10] Identity and Violence: The Illusion of Destiny- Norton, 2006

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