Box of Treasures or Empty Box?: Twenty Years of Section 35

David Mardiros is a lawyer and anthropological consultant in Terrace,
British Columbia.

A vantage point of two decades is rarely long enough to undertake a fair
evaluation of historical trends. However, in the case of Section 35 of
the Canadian Constitution, which recognizes Aboriginal and treaty
rights, so much has occurred that a review of the lessons of the past 20
years is timely and most welcome. The contributors to this book
(lawyers, scholars, political leaders, and community members) bring a
wealth of experience to bear on what have been some of the most hotly
contested social and legal issues that have arisen since the passage of
the Constitution Act, 1982.

The first part of the book describes how Aboriginal and treaty rights
came to be included in the Constitution and provides a brief analysis of
the Supreme Court of Canada decisions that have interpreted and defined
Aboriginal rights in a variety of contexts. This section of the book is
useful to a general readership as a succinct study of how thorny and
intractable the issues are despite the constitutional protections
offered by Section 35. For those already familiar with the history of
Aboriginal rights litigation, the book’s second will be of greater
interest: it discusses what the future may bring given the parameters
that have been established.

The perspectives on possible future developments are varied and,
indeed, conflicting. While some authors focus on how continued
exploration of Section 35 in the courts could prove to advance the
arguments of Aboriginal peoples, others argue that a fundamental
transformation of the interpretation of the Constitution is necessary if
the real rights and aspirations of First Nations are to be realized.
Still other contributors argue that solutions cannot be determined in
this forum because of the constraints and boundaries forced on the
parties by the nature of the Canadian state. The latter argue that if
fundamental change is to occur in the relationship between Aboriginal
peoples and Canada, international agencies and bodies will have to be
involved to craft solutions based on a nation-to-nation relationship.
The divergent views presented in this book raise thoughtful and
provocative questions for those interested in the role that the
Constitution may play as we continue to work through disputes between
Aboriginal and non-Aboriginal peoples in this country.