Identity, Culture and the Right to Communicate:

Aboriginal Peoples in the Canadian Constitution

Introduction

There are always two groups of people in the world.  When it comes to understanding legislation and constitutional texts, the two groups break down this way: there are those who read texts in a literal manner and those who see them as purposive.  The literalists approach words as if they are immutable containers of definitive meaning; containers that need only be opened to reveal their contents.  The purposive reader understands words as fences, general parameters around possible or potential meanings, rather than meanings themselves.  From the purposive perspective, meaning is not revealed by a text, it is constructed from a text.  The construction materials include a number of factors beyond the words themselves, including the reason why the words were put on the page in the first place - that is, the larger socio-economic context that produced them.  From this purposive perspective, it is possible to understand a right to communicate to be already embedded in the Canadian Constitution, even if those words are not themselves explicitly used.

This purposive approach to constitutional interpretation (or at least Charter interpretation) has been adopted by Canadian courts from the outset.¹  In a case in which the Supreme Court of Canada declared the unilingual enactments of the Province of Manitoba to be invalid because the constitutionally required manner and form for their enactment had not been followed, the court said that "in the process of Constitutional adjudication, [it] may have regard to unwritten postulates which form the very foundation of the Constitution of Canada".²

Canada's Constitution originates with the British North America Act, 1867 (now known as the Constitution Act, 1867) enacted by the Parliament of the United Kingdom.  The preamble to that legislation states the desire of the old Provinces of Canada, Nova Scotia and New Brunswick to be united federally with a constitution "similar in principle" to that of the United Kingdom.³  As a result, Canada's Constitution has consisted of written documents, as well as the inherited constitutional principles that underlie the Parliament at Westminster. 

Canada's Charter of Rights and Freedoms is a constitutional text that endeavours to protect the rights and freedoms of individuals from incursion by the state.  To do so, it states the rights it protects in rather large and general terms.  The four fundamental freedoms,  freedom of speech, including freedom of the press, freedom of opinion, thought and belief, freedom of religion, and freedom of assembly, are protected almost exactly in those words in section 2 of the Charter:

Everyone has the following fundamental freedoms:

(a)       freedom of conscience and religion;

(b)       freedom of thought, belief, opinion and expression, including freedom of the press;

(c)        freedom of peaceful assembly; and

(d)       freedom of association.

However, while we can all agree on the general protection of a value so fundamental as freedom of speech, we don't or can't always agree on exactly what that means.  More importantly, perhaps, it is possible for reasonable people, reasonably to disagree about these questions.  So, for example, a dispute about whether or not the Province of Quebec is able to pass a law that requires persons to have signs on their businesses in French must ultimately be determined by the Supreme Court of Canada, for the very reason that the answer isn't cut and dried.⁴  It is one that must be measured against the values that the protected freedoms are designed to enhance and promote.

The law, and particularly a constitution, is an organic instrument not just a collection of rules.  It is a narrative that must speak to the society it regulates in a manner that is meaningful and relevant over time.  Perhaps it is exactly for this reason that the Canadian Charter does not provide much in the way of text to guide our legal decision-makers.  They must unpack the meaning from the text by looking elsewhere than just at the words. In the Quebec sign law case, they looked at the jurisprudence in Canada as well as of the United States and of the European Court of Human Rights and European Commission of Human Rights, as well as sociological and legal academic commentary about language and human rights. 

The meaning of the Charter, then, is constructed from, not found in, its words.  This implicit basis for the right to communicate lies in the words of the Supreme Court of Canada when it described the underlying values of the Charter guarantee of freedom of expression as including, "the value of seeking and attaining truth; the value of participation in social and political decision-making; and individual self-fulfillment and human flourishing".⁵ 

The Right to Communicate as Foundational

Human beings are not generally, by nature, solitary.  We live and work in large population concentrations and in a variety of networks, both physical and virtual, which enable us as individuals to concentrate our energies and resources and to develop our skills and expertise.  These four fundamental freedoms enshrined in the Charter are all implicitly founded upon a much larger human need, the need to live in community.  The Supreme Court recognized this in the Manitoba Language Rights case http://ql1.quicklaw.com/cgi-bin/QL002?UGET=Q0170142,SCJ:

The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.⁶

This recognition of community finds its way into other provisions of the Charter, too.  Section 1 limits all of the rights contained in the Charter by those lawful measures that can be demonstrably justified in a free and democratic society.  In other words, limitations can be placed on the rights of individuals in the name of society as a whole.⁷  Section 33 of the Charter permits Parliament and the legislatures to override certain rights guaranteed in it, including the fundamental freedoms, for limited time periods.⁸  This is another means by which the right of the community through its elected representatives can prevail over the rights of the individual.  And finally, Section 25 directs the courts to interpret the individual rights guaranteed in the Charter in such a manner so as not to infringe upon the Aboriginal and treaty rights of the Aboriginal peoples of Canada. 

Thus a right to communicate can be found imbedded in many locations throughout the Charter: in sections 1 and 33, and in section 2, itself.  But more intriguing is the notion of a right to communicate as an underlying or a priori principle that animates the notion of an inherent right of Aboriginal peoples to govern themselves, which is implicitly protected in two ways: by virtue of section 25, which, as described above, limits the manner in which individual rights are to be understood in the face of the survival of the community, and by section 35 of the Constitution.

Aboriginal and Treaty Rights

Sections 35 is a very simple provision.  It states:

The existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.⁹

That's it.

Section 35, while enacted at the same time as the Charter, is not actually part of the Charter.  This means that it is not specifically subject to the limitations permissible under section 1: those that are demonstrably justifiable in a free and democratic society.  However, the Supreme Court of Canada has held that, because of the nature of the relationship between the Crown and Aboriginal peoples - which it has described as fiduciary¹⁰ - the power of the federal government in relation to Aboriginal peoples¹¹ must be reconciled with its fiduciary obligations.¹²  The result is that federal laws¹³ that infringe on Aboriginal or treaty rights must be justified, on the basis that they are enacted to achieve legitimate objectives, that they minimally impair the rights affected, and the Aboriginal peoples who hold the rights affected have been consulted.¹⁴  In other words, the Aboriginal and treaty rights of an Aboriginal community within Canada may be sacrificed to the overwhelming needs of the larger community that is the whole of the country.

Of course, the first decision a court is called upon to make in a section 35 case is whether or not an Aboriginal or treaty right exists that is protected.  Canadian governments have recognized in general terms the existence of an inherent right of self-government that is implicitly contained in section 35 as an Aboriginal right, or as a right that is implicitly recognized already by the fact that Canada has entered into treaties with Aboriginal peoples on a nation-to-nation basis.  But they have not recognized any such rights in particular.

As of yet, there is no definitive or comprehensive pronouncement from the Supreme Court of Canada about the existence or content of an inherent right of self-government.  The Supreme Court has held that self-government claims must be considered according to the same test as is applied to other Aboriginal rights claims.¹⁵  This test, the Van der Peet test, was articulated by the court in the following manner:

... in order to be an Aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group asserting the right.¹⁶

As a result, it would appear that the potential scope of an Aboriginal right of self-government must be connected to those practices, customs or traditions that are integral to culture.  Thus it would appear that the most fundamental of such rights would have to include a right to communicate.  Without such a right, community is not possible.

Issues of Aboriginal rights have been most exhaustively addressed by the Royal Commission on Aboriginal Peoples (RCAP).¹⁷  In the Commission's view, the inherent right of self-government is recognized and affirmed by section 35 and "generally comprises all matters relating to the good government and welfare of Aboriginal peoples and their territories".¹⁸  The Commission divides this sphere of Aboriginal jurisdiction that might be exercised under an Aboriginal inherent right of self-government into two parts, which it labels the "core" and the "periphery".  The core of inherent Aboriginal jurisdiction includes those matters that are vital to the welfare of a people, culture and identity and that do not have a major impact on adjacent jurisdictions or otherwise are a matter of overriding federal or provincial concern.  The periphery, of course, is everything else.  Everything else is roughly equivalent to the scope of federal jurisdiction under section 91(24) of the Constitution Act, 1867, which provides the authority to enact laws in relation to "Indians, and Lands reserved to the Indians".  According to RCAP, Aboriginal peoples can act unilaterally to enact laws in the core of their jurisdiction, but must negotiate self-government agreements to enact laws in the periphery.

The Commission's basic conception of an inherent Aboriginal right of self-government is not so very different from the basic description of self-government that arises out of the application of the Van der Peet test developed by the Supreme Court.  This is not to suggest that the courts are likely to find an inherent right of self-government to exist in the abstract.  Rather, it is to suggest that if the scope of an inherent right were to be played out through litigation relating to its unilateral exercise, it would begin with the basic claim to self-determination that manifests itself through the constitution by a people of their governmental structures, the ability to determine membership in the group and the ability to transmit¹⁹ their language and culture to future generations so as to preserve their identity and existence.²⁰

A Right to Communicate for Aboriginal Peoples

In Switzman v. Elbling²¹, where the Supreme Court of Canada struck down Quebec's padlock law, Mr. Justice Rand again spoke strongly on this issue, saying:

But public opinion, in order to meet such a responsibility, demands the condition of a virtually unobstructed access to and diffusion of ideas. Parliamentary government postulates a capacity in men, acting freely and under self-restraints, to govern themselves; and that advance is best served in the degree achieved of individual liberation from subjective as well as objective shackles. Under that government, the freedom of discussion in Canada, as a subject-matter of legislation, has a unity of interest and significance extending equally to every part of the Dominion. With such dimensions it is ipso facto excluded from head 16 [of section 91 of the Constitution providing power to provinces over matters of a local or private nature in the province] as a local matter.

This constitutional fact is the political expression of the primary condition of social life, thought and its communication by language. Liberty in this is little less vital to man's mind and spirit than breathing is to his physical existence. As such an inherence in the individual it is embodied in his status of citizenship.

In the same case, his colleague, Mr. Justice Abbott, said, at p. 326:

The right of free expression of opinion and of criticism, upon matters of public policy and public administration, and the right to discuss and debate such matters, whether they be social, economic or political, are essential to the working of a parliamentary democracy such as ours.

The lifeblood of these freedoms is the ability to communicate ideas to others, and of the individual to access the ideas that others communicate. The right to communicate embodies the individual's right to belong to a community in an era when the nature of community is changing. A 100 years ago, the community to which the individual belonged was the one created in his or her contiguous physical space.  That world was circumscribed by the limitations of transportation and communications technology on the one hand and of geography and climate on the other.  The changing world of technology has resulted in a changing world of community.  The links that bind a community together are no longer constrained by physical proximity.  Community can now be defined by intellectual, emotional and psychological proximity.

This understanding of community may be of particular interest to Aboriginal peoples who are or may be physically separated from their communities, but bound to them by non-physical ties, which can be far more powerful.  The right to communicate grounds the idea of community, and the preservation of Aboriginal communities, as traditional ways of life have given way to changing times and the arrival of the European newcomers. 

On the Canadian prairies, for example, the nomadic life of small communities, following the seasons and the wildlife, gave way to a settled life on specific "reserved" lands.  In Saskatchewan, one of the prairie provinces and one with a significant Aboriginal population, rural depopulation since World War II has seen an exodus from both non-Aboriginal farming communities and from Indian reserves.

Prior to World War II, about 70% of the province's approximately one million people lived outside the major cities; by the end of the century that proportion had declined to the point where more than half the population now lives in cities.²²  In that same time period, half of Indian band members have moved off reserve lands into cities, not necessarily as a matter of choice, but because of an absence of educational, economic and other opportunities.  As Aboriginal peoples leave "home" they are more likely to experience a loss of their identity and their culture.  In these circumstances, a right to communicate takes on a much larger meaning, and has to be understood in a way that allows Aboriginal peoples to create their communities in different ways.

Conclusion

The fundamental freedoms have more significance in a globalized economy, not less.  And what underlies them all is the ability for individual human beings to come together in the communities they design for themselves.  As others have said more eloquently:

If the right to communicate begins with the right to information, it also encompasses the right to being involved in creating and distributing one's information and, what is more and more crucial, the right to knowledge -- that is, the ability to select information based on the democratic needs and aspirations of individuals and communities.²³

In Canada, I would argue, the right to communicate must be understood to exist as a foundation on which are built the other rights that we have expressly declared to be guaranteed.  In particular, we have recognized and affirmed the rights of the Aboriginal peoples of Canada to live in their own communities and to preserve their culture and language, and thereby their identity.  A right to communicate is a necessary ingredient of community and must therefore be implicitly contained in the rights to which Aboriginal peoples are entitled by virtue of the fact that they are peoples.

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