Video: Part 2 – The NDP stood up for Aboriginal people & created s. 35 of the Constitution Act

“How the NDP stood up for Aboriginal People & created section 35 of the Constitution Act”  This is part 2 of 4 of Jack Woodward’s keynote presentation at the Canadian Bar Association’s National Aboriginal Law Conference [PDF], on June 11, 2015 in Fortress Louisberg National Historic Site, Nova Scotia.


Today at lunch our speaker Manny Jules reminded us that history is about facts that can’t be proven, so he said we can all debate what really happened. So I am going to be careful and tell you only what I actually personally know about some recent history:

In 1980 I travelled to Ottawa with the late George Watts, who was Chairman of the Nuu-chah-nulth Tribal Council, to appear before the Joint Senate and House of Commons Committee on the Constitution. Prime Minister Pierre Trudeau wanted to patriate the constitution – but the early drafts said nothing about aboriginal people, and nothing about the Royal Proclamation of 1763. George Watts and I argued that the Schedule to the Constitution Act should include the Royal Proclamation, because it was just as much a part of the constitution as things like the Manitoba Act and Rupert’s Land Order, which were going to be included in the Schedule. Oddly, as things turned out, the Royal Proclamation ended up in Section 25, which still puzzles me. It was not added to the Schedule, but something better happened:

At that time, Pierre Trudeau wanted all-party support for constitutional change. So each party had its particular demands and conditions for support. The NDP under Ed Broadbent made it their condition for NDP support that an aboriginal rights clause be added.

Now, sometimes history is kind of random. Important things happen, kind of by accident. Here is an example:

The deal for NDP support was being hammered out between Trudeau’s main lieutenant at the time, Jean Chretien, and Ed Broadbent, together with some members of his NDP caucus, including Ian Waddell, Svend Robinson, and Jim Fulton. It was a small meeting in the Centre Block on Parliament Hill. Things were moving quickly. The politicians were close to an agreement about the idea of an aboriginal rights clause, but nobody had written any text.

For my part, I happened to be in Ottawa on a different matter, that same day, and Ian Waddell talked to me about this.

I was a fussy lawyer, and not a politician, and I thought this was puzzling, to negotiate for a clause in theory and not have the text of the clause. So I sat down at a desk and right out of thin air, I typed out a little draft of something the politicians might use and handed it to Ian Waddell, who disappeared off to the meeting with it. Here are the words I typed, and you will recognize some of them:

“The aboriginal title and treaty rights of the aboriginal peoples of Canada, as they have been or may become defined by the Courts, are hereby recognized and affirmed, and can only be modified by constitutional amendment.”

That piece of paper still exists. Ian Waddell has it framed on his wall. It passed out of my hands, and I had no further involvement. It went through many drafts,. Lots of people were consulted, changes were made – thank goodness – and something that sounded quite similar appeared in the draft Constitution as section 33, (I think), and was passed in principle by the House of Commons in February of 1981.

Then, suddenly, the clause disappeared! Prime Minister Trudeau caved into pressure from the provinces and deleted it from the draft.

There was a huge political fight in the summer of 1981. The historic “Constitution Express” involving hundreds of aboriginal leaders descended on Ottawa, camping on the Parliament Hill lawn and occupying offices, demanding that section 35 be restored. Justice Thomas Berger spoke out, and put his job as a judge on the line. He took a political stance, and was forced to resign as a judge – a great loss to the Canadian judiciary. A premier’s conference was held in Edmonton, in November, 1981, with the result that section 35 was put back into the draft Constitution, with the addition of the word “existing”. Premier Lougheed of Alberta insisted on adding the word “existing”. The rest is history. The Queen came to Ottawa and signed the constitution on April 17, 1982.