Beyond Space and Time - A Purposive Examination of Section 91(24) of the Constitution Act, 1867

• Author: Charlotte A. Bell
• Pages: 95-119

95

  

Beyond Space and Time — A Purposive

Examina tion of Sect ion () of the

Constitution Act, 1867

 . 

When g reat causes are on the move in the world . . . we learn that we

are s pirits, not animals, and that something is going on in sp ace and

time, and beyond space and time, which, whether we like it or not, spells

dut y.

—Winston Churchill, in a radio broadcast to the

United States,  June 

A. INTRODUCING THE TOPIC

From  to , t he relationship be tween the Crown and “Indians”

was mediated primarily by section () of the British North America

Act, , which authorized Parliament to “legislate for the benet of the

Indian popu lation in a preferential, di scriminatory, or distinct ive fash-

ion vis-à-vis others.”

en in , section  of the Constitution Act, , armed the

rights of all of Canada’s Aboriginal peoples: Inuit, Métis, and Indians.

 Section () granted to the Pa rliament of Canada the exclusi ve right to legislate

with respect to “I ndians, and lands reser ved for the Indians.”

 Now the Constitution Act,  (U.K.),  &  Vict., c. , reprinted in R .S.C. ,

App. II, No. .

 Reference re Bill , An Act to amend the Edu cation Act (Ont.), []  S.C.R.  

at , Estey J.

 Being Schedule B to t he Canada Act  (U.K.), , c. .

96  .  

is step was profoundly important in strengthening and protecting t he

rights of Aborig inal peoples in Canada and demanded a new model for

the relationship between governments and Aboriginal peoples.

e question this paper addresses is whether section  has superseded

sec ti on ( ) i n ter ms o f me dia tin g th e rel ati onsh ip o f Ab orig in al p eopl es

with the Crown — including rights protection — or whether section ()

of the Constitution Act,  remains relevant in this relationship.

is paper begins with an analysis of the purpose a nd eect of sec-

tion , and t hen examines the h istory of the Crown’s relationship with

First Nations to determine the purpose and eect of sect ion ( ).

From there, it is argued that section () preserves a relationship,

begun centu ries ago by the imperial Crown, that mea ns as much today

as it did when  rst enacted. In particular, sec tion () provides the

federal Crown with the authority to promote reconciliation by legislating

programs aimed at a meliorating the disadvantage suered by “Indians”

while at the same time maki ng the necessar y and inevitable adjustments

to the sovereignty of the Crown.

B. SECTIO N 

) A Historical Perspective

In the opening statement at the  First Mi nisters Conference, a meet-

ing held to identify a nd dene section  rights, Pri me Minister Pierre

Trudeau observed:

We are dealing for the rst t ime with a Const itution which is na lly

our own, close now to all Canadians, to the many peoples and ethnic

groups who make t heir home in this broad land. We are de aling with a

constitution that still needs to dene the place of our Aborigin al peoples

in Canadian s ociety.

In referri ng to “Aboriginal peoples,” the prime minister included First

Nations, Métis, and Inuit peoples whose rights were now recognized and

armed in sect ion  of the Constitution Act, .

e distinc tness of these constitutiona lly recognized Aborigina l so-

cieties was to be recognized and protected. Moreover, Aboriginal rights

 Ott awa, – March .