A central constitutional component in the less ancient history of the Dominion of Canada is our monarchy. Two significant events in the life of the Queen of Canada take place within days of each other. Seventy years into her reign, April 21 is Queen Elizabeth II’s 96th birthday and April 17 marks four decades since she signed the final paperwork authorizing Canada’s constitution to be administered at home instead of from the Palace at Westminster (the Parliament building of the United Kingdom).
I will address the constitutional landmark first, with a brief telling of how my own story intersects. As shared in Under Siege: Religious Freedom and the Church in Canada at 150 (1867–2017):
The day after writing the final exam of my first year of law school was April 17, 1982. That morning, I got on my bicycle and rode a fair distance to my friend Mitch’s house. He was one of the few people I knew who owned a colour television—a twenty-six-inch screen at that! It was a beautiful, sunny day in Vancouver— and pouring rain in Ottawa. Mitch had invited a bunch of fellow law students to his place for an unusual kind of party, one that has not been repeated in my lifetime. We watched the live broadcast as Prime Minister Pierre Elliott Trudeau and Queen Elizabeth II, on the front steps of Parliament Hill, signed the official documentation to transition Canada’s constitution from an act of the British Parliament (the British North America Act, now referred to as the Constitution Act, 1867) to the Canadian-held and Canadian-amendable Constitution Act, 1982. While often referred to as the repatriation of our constitution, it was actually the patriation of our constitution, as this was the occasion when it became the property of Canada and Canadians for the first time.
Canada, established July 1, 1867, did not actually become a sovereign nation until April 17, 1982. Also on that day, Canadian law was forever changed by the inclusion of thirty-four sections in Part I of the Constitution Act, 1982. These sections are known as the Canadian Charter of Rights and Freedoms.
A few days later, I left Vancouver to prepare for and then enter Christian ministry as a pastor. None of us in that living room on a sunny west coast morning had any idea how dramatically the amendment to our constitution would change the practice of law, the practices of Canadians, or the very nature of our nation.
Precisely three years later, as provided in the Constitution Act, 1982, on April 17, 1985, the equality rights provision of the Charter came into effect. As a result of the time required for legal cases to make their way through the court system, exactly seven days later the Supreme Court of Canada issued its first decision on the Charter’s guarantee of freedom of religion in R v Big M Drug Mart. But already the seeds planted in 1982 were producing fresh growth that would in short order revise Canada’s legal landscape.
Not long afterward, I was asked by the Canadian leader of my church denomination, The Salvation Army, to return to law school to prepare myself to establish a national legal department.
At the time, my wife Gloria and I were co-pastoring a church in the Lax Kw’alaams (“place of the wild roses”) village, commonly called Port Simpson, part of the Port Simpson No. 1 Reserve of the Tsimshian First Nation in northern British Columbia.
I carried the above story forward to Lax Kw’alaams because lessons learned there inform an important portion of both this week’s constitutional celebration and the monarchy.
As Her Majesty’s birthday approaches amidst Platinum Jubilee celebrations of her accession to the throne in 1952, republicans are openly advocating an end to the monarchy in Canada. The heir to her throne, our throne, plans to visit in May. The announcement alone gave amplified profile to the republican agenda because Prince Charles is thought less popular with Canadians than his mother.
Like the organizers of the 1864 Charlottetown conference on confederation, and subsequent gatherings leading up to the British North America Act of 1867, Canadian republicans forget that our founding nations are not just two―the United Kingdom and France―but hundreds. Turtle Island’s first citizens had their own long histories before welcoming the relative newcomers from Europe half a millennium ago. The Constitution Act, 1982 reminded of and reinvigorated that truth.
While many Canadians will this week celebrate the 40th anniversary of sections 1 to 34 of the Constitution Act, 1982, better know as the Canadian Charter of Rights and Freedoms, we need remember the constitutional amendment of 1982 also included sections 35 to 52.
Section 35 recognizes and affirms “the existing aboriginal and treaty rights of the aboriginal peoples” who are described as including “the Indian, Inuit and Métis peoples of Canada.” The “existing aboriginal rights” mentioned are distinct from and pre-date written treaty rights. Those rights are pertinent to every square metre of Canadian soil, including those covered by treaty. While government and the courts are sorting out application of old treaties and aboriginal rights, as well as redress for violations, the section also recognizes new treaties that are still being negotiated concerning unceded lands.
It cannot go unnoticed that treaties with Indigenous residents were made with the Crown―the monarch―not the government.
When we lived in Lax Kw’alaams, the elders were clear, as have been elders I have since encountered from sea to sea, that formalized Indigenous relationship with Canada is understood to be with the Queen not her prime minister. The Queen is the head of state. The prime minister is the head of her government.
To become a republic, in addition to constitutional negotiations (see Part V of the Constitution Act, 1982 for the procedure), renegotiation would be required for treaties made between Indigenous peoples and the Crown. There are 70 recognized treaties made between 1701 and 1923, describing the basis for relationship between the Crown and 364 First Nations, representing over 600,000 people. As part of Canada’s comprehensive land claims policy to address previously unceded lands, an additional 25 treaties have been negotiated since 1973. These describe the relationship between 97 Indigenous communities and nearly 90,000 people. Treaty negotiation is complex, historic, and ongoing in Canada.
Perhaps we Canadians might focus a bit less this week on the Charter and more on opportunities to advance reconciliation with Canada’s Indigenous peoples; much less on outspoken republicans and more on our esteemed monarch’s 96th birthday. Long live our noble Queen.