Memorandum from F.J.E. Jordan to Jean Chrétien, Entrenchment of Aboriginal Rights (24 November 1981)
By: F.J.E. Jordan, Government of Canada
Citation: Memorandum from F.J.E. Jordan to Jean Chrétien, Entrenchment of Aboriginal Rights (24 November 1981).
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CONFIDENTIAL – BY HAND
November 24, 1981
FROM: A/ADM, PUBLIC LAW
SUBJECT: ENTRENCHMENT OF ABORIGINAL RIGHTS
The entrenchment of aboriginal rights in the Constitutional Resolution will raise questions of how this provision (Part II) is to be amended in the future.
In the April Resolution, specific provision had been made for amendments of Part II by the general amending formula or by referendum. Amendments to the Charter of Rights were also specified to be done in this manner (old section SS).
However, with the inclusion in the new Resolution of the amending procedures proposed in the April Accord, there is no specific provision for amendments to either the Charter or aboriginal rights. Thus, amendments to these parts will be done under the general amending formula in section 37.
Therefore, if an amendment to these parts is one that derogates from the legislative powers or proprietary rights of a province, opting out by up to three provinces would be permitted. On the other hand, if the amendment did not derogate, then there would be no opting out.
Some may argue that there should be a special amending formula for amendments to aboriginal rights which would apply the general amending formula with no rights of provinces to opt out. However, this would be unacceptable to the provinces and be seen by them as a violation of the November 5 agreement. An amendment to the aboriginal rights clause is just as susceptible as other amendments affecting provincial powers to derogate, especially in respect to provincial proprietary rights.
Therefore, we recommend that you take the position that there should be no special amending formula for aboriginal rights in the same way as there is no special formula for amending the Charter. Both will be subject to the general amending formula under section 37, and to attempt to insert any special formula for these parts would not receive the agreement of the provinces.
c.c. Deputy Minister
Mr. Michael Kirby
Mrs. Barbara Reed
Mr. James Hurley