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Thursday Thinkpiece: Webber on Evolution in Constitutional Law

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The Constitution of Canada: A Contextual Analysis

by Jeremy Webber © 2015 Hart Publishing. Reprinted with permission.

Author’s note: This excerpt comes from the very end of the book: pages 262 to 265. One of the book’s central themes is that any constitutional order is a work in progress, constantly being created and recreated by its participants and that to understand the operation of the order one has to understand the multiple claims made upon it and the contesting visions projected onto it. A constitution is not a definitive product, fully elaborated, internally coherent, done and dusted. And indeed in a complex democratic society such as Canada’s, one in which its citizens are understood to be primary agents in its development, it shouldn’t be. This has important implications for constitutional reform and constitutional interpretation in Canada. This excerpt draws that theme to a conclusion.

In 2009, the Government of British Columbia and the Haida people entered into the Kunst’aa guu–Kunst’aayah Reconciliation Protocol, as ‘an incremental step in the process of the reconciliation of the Haida and Crown title’ and as a framework ‘to guide joint decision-making regarding land and natural resource management on Haida Gwaii [formerly the Queen Charlotte Islands]’. The protocol was implemented in the Haida Gwaii Reconciliation Act (2010).(1) The Preamble to this provincial statute is remarkable. It includes, in one of its recitals:

WHEREAS the Kunst’aa guu–Kunst’aayah Reconciliation Protocol provides that the Haida Nation and British Columbia hold differing views with regard to sovereignty, title, ownership and jurisdiction over Haida Gwaii, under the Kunst’aa guu–Kunst’aayah Reconciliation Protocol the Haida Nation and British Columbia will operate under their respective authorities and jurisdictions;

It then goes on to enact the special land-management structures agreed in the protocol. The protocol itself is still more remarkable. It begins with the following statement: ‘The Parties hold differing views with regard to sovereignty, title, ownership and jurisdiction over Haida Gwaii, as set out below’. Two parallel columns follow. The one on the left states:

The Haida Nation asserts that: Haida Gwaii is Haida lands, including the waters and resources, subject to the rights, sovereignty, ownership, jurisdiction and collective Title of the Haida Nation who will manage Haida Gwaii in accordance with its laws, policies, customs and traditions.

The one on the right states:

British Columbia asserts that:

Haida Gwaii is Crown land, subject to certain private rights or interests, and subject to the sovereignty of her Majesty the Queen and the legislative jurisdiction of the Parliament of Canada and the Legislature of the Province of British Columbia.

Here we have, in the statute, the legislature and, in the protocol, the government of British Columbia, conceding that the parties hold different views on the most fundamental questions, expressly noting their disagreements, saying that each will implement the agreement under its own institutions’ authority, and then proceeding to act upon the agreement made.

And why not? This example shows that the issues constitutional lawyers often take to be fundamental—to be the inescapable premises of all political action—may be held in suspension, each party maintaining its own position and yet collaborating nevertheless. Arguably, that has been the pattern in Canadian political life generally, given the significantly different perspectives Quebecers have had on the role and legitimacy of their federal and provincial governments, in comparison, for example, to that of Ontarians. It might be called agonistic constitutionalism, for it acknowledges that parties often do disagree over fundamentals—indeed, may push very hard to have their view of the world accepted—and yet find a way to collaborate nevertheless. The principles remain important. The parties are deeply committed to them; certainly the Haida Nation and the government of British Columbia are. But the parties place the maintenance of the relationship ahead of agreement on the fundamental structure of sovereignty.

Once one realizes the possibility of an agonistic constitutionalism, one begins to see it everywhere. The centuries-long debate over the ultimate location of sovereignty in the British constitution, a history that Canada has also inherited, is another striking example. Indeed, continued debate over the most fundamental principles is the normal condition of human communities, where we disagree over so much, and yet nevertheless find a way to sustain our lives in common. It is a mistake to think that countries are founded on agreements that should be written into the constitution and enforced. Their foundation is generally more ambiguous than that, the parties finding that they are living together and that they have good reason to continue to live together, so they then begin to fashion the terms on which they might do so. Those terms are always partial and provisional, furnishing at their best the means of carrying on a conversation rather than decreeing what the content of that conversation must be.

Indeed, imposing that content prematurely might prevent the conversation from even beginning. One of the great developments of the last 30 years in Canada has been the attempt to find a mode of engagement between Aboriginal peoples and the Canadian state that holds the possibility, someday, of justifying Canada to Aboriginal peoples, so that the relationship is something other than fundamentally colonial. For that to occur, Canada has to draw upon languages of justification that have currency within Aboriginal traditions of legality and authority. The search for cross-cultural legitimation requires that one engages simultaneously with both Aboriginal and non-Aboriginal stems of legitimacy—with Aboriginal and non-Aboriginal law—to work out a way of living together. What is the Preamble to the Haida Gwaii Reconciliation Act but an agreement to initiate that search? If, in contrast, one began by imposing the foundational premises, one would render genuine collaboration impossible. One can draw a direct analogy to the Secession Reference. In that case, the Court might have decided that a Canadian majority trumps a Quebec majority, but it would then merely have communicated that Quebecers were held within Canada by force.

Thus far, in this chapter, we have concentrated on the special challenges of sustaining a deeply diverse political community, but the lessons can be generalized. Citizens of any society disagree significantly about fundamental principles, indeed perennially debate what those principles are and how they should be put into operation. The most important dimensions of any constitution therefore deal with how decisions are made, by whom, and the mechanisms by which deliberation is sustained. Of course, if the deliberation is to mean anything for people’s daily lives, there have to be points of closure, where decisions to adopt a particular way forward can be made. But those decisions will always be provisional, the best one can achieve right now, liable to being superseded by the decisions of tomorrow. Otherwise one is shackling the citizens of tomorrow to the necessarily limited understandings of today. A good constitution therefore provides mechanisms for sustaining the conversation, for enabling citizens to determine their rulers, for testing the assertions of those in power, for building the stock of dependable information on which decisions are made, for coming to decisions, for ensuring that those decisions are faithfully and consistently put into effect, for attending to the impact of decisions on individual circumstances so that one can correct especially harsh consequences, and for allowing for those decisions to be revisited in the future. Those mechanisms are the core of the constitutional lawyer’s métier. We have seen many examples of their elaboration over the course of this book. They matter much more in the long run than any declaration of substantive values, for of course the latter too always need to be interpreted and applied.

A constitution can do good work in constructing democratic deliberation and sustaining the contributions of its citizens. Certain aspects of that structure may even be worth entrenching (made subject to special requirements for amendment) precisely so that the channels of participation are insulated from manipulation by those in power today. Indeed, that may be one of the conditions for sustaining breadth of participation, for it ensures that those in a minority have some reasonable terrain on which to work towards winning the argument tomorrow. But one should never fall into the error of believing that constitutions can be the bedrock of the political order. Even in their central provisions, they too are subject to interpretation; they too are subject to reconsideration, reinterpretation and reform; they too are constantly subject to evolution and elaboration. A constitutional order is a matter of a community governing itself, ideally through an array of well-considered and well coordinated institutions, but nevertheless governed through institutions that are sustained and given life by its members.

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(1) Kunst’aa guu–Kunst’aayah Reconciliation Protocol between the Haida Nation and Her Majesty the Queen in right of the Province of British Columbia (14 December 2009), available at www.llbc.leg.bc.ca/public/pubdocs/bcdocs2010/462194/haida_reconciliation_protocol.pdf; Haida Gwaii Reconciliation Act, SBC 2010, c 17.

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