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Jan Advocate 2017

32 V O L . 7 5 P A R T 1 J A N U A R Y 2 0 1 7 THE ADVOCATE The federal government’s freedom to conduct foreign affairs without legislative involvement comes at this price: its acts in the international arena cannot directly change domestic law. As Lord Oliver comprehensively explained, “the royal prerogative … does not extend to altering the law or conferring rights on individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament.”18 On this line of authority, the Declaration, being merely an executive act, cannot take direct effect in Canadian law without implementing legislation. THE CONSTITUTION HAS AN AMENDING FORMULA When the Minister of Indigenous and Northern Affairs, the Hon. Carolyn Bennett, announced Canada’s unqualified support of the Declaration, she made this intriguing statement: “Adopting and implementing the Declaration means that we will be breathing life into Section 35 of Canada’s Constitution, which provides a full box of rights for Indigenous peoples.” She was referring, of course, to s. 35 of the Constitution Act, 1982, subsection (1) of which provides, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. Thus the minister’s statement contemplates some role for the Declaration in the interpretation, application and development of s. 35(1). The potential significance of this for Canadian Aboriginal law, if it could be done, can hardly be overstated. In the minister’s words, the “box of rights” offered by s. 35(1) on its face and in light of current jurisprudence does not appear to be nearly as “full” as the Declaration’s box. In its 46 articles, the Declaration addresses such varied matters as educational rights (art. 14), economic and social conditions (art. 21), the right to development (art. 23) and financial and technical assistance (art. 39)—none of which are expressly addressed or necessarily implied by s. 35(1). In addition, the Declaration includes several articles that, while arguably within the general scope of s. 35(1)’s reference to “aboriginal and treaty rights”, might seem to expand it. These include the right to autonomy or self-government (art. 4), mechanisms for restitution of Indigenous cultural property (art. 11(2)), the requirement of free, prior and informed consent before adopting measures that may affect Indigenous peoples (art. 19), and the right to the lands, territories and resources which Indigenous peoples have traditionally owned, occupied or otherwise used or acquired (art. 26). Recall that the minister’s statement was that “adopting and implementing” the Declaration would “breathe life” into s. 35(1). Constitutional orthodoxy suggests that the mere adoption of the Declaration cannot affect s. 35(1), for the reasons already stated. No one would seriously contend that


Jan Advocate 2017
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