Canadian Bill S-8

Michael (Mickey) Posluns, February 4, 2013

The Senate Legal and Constitutional Affairs Committee held long hearings a few years ago on the use of non-derogation clauses regarding s.35  (Aboriginal and treaty rights) in legislation.  One conclusion was that while non-derogation clauses could not do any harm they were also unnecessary since any derogation, even one sanctioned by Parliament as in S-8 is "inconsistent with the Constitution."  The question remains how quickly various Aboriginal organizations can get this issue before the Courts.  Since S-8 provides for a criminal sanction against community officials who do not maintain standards, whether or not adequate funding is available the Court does not need to strike down the whole Act but only to strike down any attempted prosecutions.

That said, I quite agree with the observation that this bill represents the contempt that the Harper Government has shown since its inception both for Parliament and for Indigenous communities.  The failure to consult, as the writers pointed out will mean that this bill runs not only against teh plain sense of s.35(1) but also against the interpretation by the Court in Haida Nation in 2004 and Mikisew Cree First Nation in 2005.  It is worth keeping in mind that s. 35 does not have a limiting clause equivalent to s.1 of the Charter of Rights and Freedoms that allows infringement for reasons that are "justified in a free and democratic society."  While the Court has set limits on Aboriginal and treaty rights, S-8 is an infringement not only of s.35 but also of the due process rights under ss. 7 and 11 of the Charter of all band or community officials who may be prosecuted.