“The basis of our political system is the right of the people to make and to alter their constitutions of government,” George Washington’s farewell addressA plan that can never be changed is a bad one.The plan behind the 1982 enactment of sections 25, 35, and 37 of Canada’s Constitution — sections that recognize and affirm “the existing rights of the aboriginal peoples of Canada” — is working out so badly for Canada that it must be repealed..Bob Rae, one of the “framers” of section 35, explained that the plan, such as it was, behind putting it into the Constitution without any prior study or public consultation was that:“…although some protested that no one knew exactly what the implications of section 35 were, we knew full well we were making progress in reducing the unilateral prerogative of governments.”.OLDCORN: Nicotine pouches belong in Canada’s nicotine harm-reduction toolbox.The framers have surely achieved that “progress.”Backed by the country’s Supreme Court, Canada has “progressed” so much that, contrary to the government’s most basic function of protecting its own sovereignty, section 35 has enabled the Canadian state to become fragmented, weakened, and diminished to a crisis point..Mr. Rae and his framer colleagues forgot that, as Francis Fukuyama wrote:“A liberal society preserves order by creating a powerful state but then constrains that power under a rule of law. The state’s power is based on a social contract between autonomous individuals who agree to give up their rights to do as they please in return for the state’s protection … Ultimate power, in other words, continues to be the province of national states, which means that control of this power at this level remains critical.”.THOMAS: A water utility oversight board must be Calgary council's top priority.The crisis point — national damage caused by section 35 — is evidenced by the facts that:“Aboriginal peoples” have become a third fount of constitutional sovereignty.The federal government and the provincial governments are no longer the sole and supreme law-making authorities within their own jurisdictional spheres.The federal and provincial governments no longer have supreme control over all of Canada’s physical territory.Canada’s economy is under threat because of the unsolvable conflicts and resulting legal uncertainty caused by pro-Aboriginal laws, a fact admitted by BC Premier Eby.The constitutional consult and accommodate obligation, which usurps the state’s right to have the sole and final say over resource projects and other projects proposed for both public and private lands, now gives Aboriginal peoples a practical veto over them.Aboriginal title, which usurps the state’s supreme power over private property, undermines the rights of private property holders and thus undermines the business and private property certainty absolutely required for Canada’s capitalistic economy to function.State laws designed to protect the rights of individual and vulnerable Aboriginals, administered and enforced by neutral and professional state institutions, are being supplanted by amateurish, unregulated, sub-state Aboriginal organizations, thus endangering these vulnerable Aboriginal individuals.American Indians have acquired Canadian Aboriginal rights, thus enabling foreign interests to interfere in Canada’s internal affairs.The Canadian judiciary, in interpreting section 35, consistently manifests the appearance of bias and excessive activism in favor of Aboriginal causes and interests, thus betraying its core state sovereignty-maintaining function and undermining public trust in it.Aboriginals are experiencing historically high levels of social dysfunction and failure. Section 35 Aboriginal rights are preventing the Canadian state from ameliorating this dysfunction and failure.The aggressive and insulting pursuit of section 35 race-based rights is causing increasing racial tension, resentment, and division between Aboriginal and non-Aboriginal Canadians.Had Mr. Rae and his fellow framers imagined this, they would never have put section 35 into the Constitution..Constitutions can and should be amended when circumstances warrant.As historian Jill Lepore recently wrote:“Amendment is a constitution’s mechanism for the prevention of insurrection — the only way to change the fundamentals of government without recourse to rebellion. Amendment is essential to the … constitutional tradition — so methodical and so entirely a conception of endurance through adaptation — that it can best be described as a philosophy. It is at this point a philosophy all but forgotten.”.COHEN: Carney government’s wholly inadequate response to the scourge of antisemitism.The American Constitution has been amended twenty-seven times, including to abolish slavery and give women the right to vote.Many countries in Europe have had several constitutions over the 150-year era of European constitutional democracy, demonstrating that nothing constitutional should be considered permanent.The makers of the Constitution Act, 1982, knowing that future generations might feel the need to amend it, built in an amending provision. Seven provinces out of 10, representing at least 50% of the population, must agree to the proposed amendment..Amending our constitution would not be doing something undemocratic. Instead, it would be doing something consistent with the wording of the intentions of the framers and sound constitutional theory.The unforeseen, modern Aboriginal reality is that most Aboriginals, except for their well-to-do and powerful elites, have become a segregated, disadvantaged underclass of Canadian society, straitjacketed by bad, race-based, illiberal laws..NEUMANN: Sound money for a serious country — how an independent Alberta can succeed where Canada failed.This can only change by repealing section 35, the root cause of the crisis.Aboriginal elites and many others will correctly charge that repealing section 35 would constitute an abrogation of Aboriginal rights..But section 35, the main source of those rights, has been fairly tried and found seriously wanting. Aboriginal leaders would lose rights, but Aboriginal peoples would gain immeasurable benefits, including the right and privilege of being treated equally under the law.As in the case of the abolition of American slavery, an egg well worth breaking for the omelet of freedom and equality, repealing section 35 for the purpose of bringing about racial and legal equality between Aboriginal and non-Aboriginal Canadians would be regarded in hindsight as a much-needed and morally justified act. An act that would bring Canada’s reality into conformity with its Enlightenment ideals..OLDCORN: Facts aren’t racist — Alberta Prosperity Project’s warning on immigration and faith rings true.The eventual affording to Aboriginals of the status of full equality with their non-Aboriginal fellow citizens would be Canada’s version of Lincoln’s Emancipation Proclamation.Repealing section 35 would mend a gaping, illiberal tear in our national fabric and set the stage to begin the long process of bringing Aboriginal Canadians into the Canadian family as true equals.Peter Best is a retired lawyer based in Sudbury, Ontario, and author of the 2020 book “There Is No Difference: An Argument for the Abolition of the Indian Reserve System and Special Race-based Laws and Entitlements for Canada’s Indians” (see www.thereisnodifference.ca).Hymie Rubenstein, editor of REAL Indigenous Report and REAL Israel & Palestine Report, is a retired professor of anthropology at the University of Manitoba and a senior fellow at the Frontier Centre for Public Policy.
