When states are absent, rights -by any definition- are impossible to sustain. States are not structures to be taken for granted, exploited or discarded, but are the fruits of long and quiet effort. It is tempting but dangerous to fragment the state – Timothy Snyder[i]
The basis of our political system is the right of the people to make and to alter their constitutions of government – George Washington[ii]
A State without the means of some change is without the means of its conservation. Without such means it might even risk the loss of that part of the constitution which it wished the most religiously to conserve. – Edmund Burke[iii]
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A plan that can never be changed is a bad one.
The plan behind the 1982 enactment of section 35 of Canada’s Constitution – the section that recognizes and affirms “the existing rights of the aboriginal peoples of Canada” – is working out so badly for Canada and Canadians that this plan must forthwith be abandoned by repealing section 35.
Bob Rae, one of the “framers” of section 35, explained that the plan, such as it was, behind putting it into the Constitution without any prior study or public consultation was that:
“…although some protested that no one knew exactly what the implications of section 35 were, we knew full well we were making progress in reducing the unilateral prerogative of governments.”[iv]
Well, the framers have certainly achieved that “progress”.
With the assistance of the Supreme Court of Canada and other politicians as heedless in this regard as Mr. Rae and his framer cohorts, Canada has “progressed” so much that, contrary to the basic state-preserving rule that a government’s most basic function is to protect its own sovereignty, section 35 has enabled the Canadian state to become fragmented, weakened and diminished to a crisis point.
Legitimate nation-states like Canada have hierarchical, coherent governing structures, and rules-based laws developed organically over time. They are supported by organized bureaucratic systems interacting with each other on an impersonal, secular basis. No Aboriginal group, “people” or “nation” can ever achieve these levels of development. The exercise of their new section 35 rights within Canada only fragments, weakens and diminishes the Canadian state’s remarkable achievements of these complex, sophisticated (but fragile) levels of development.
Mr. Rae and his framer colleagues forgot that, as Francis Fukayama wrote:
” A liberal society preserves order by creating a powerful state but then constrains that power under a rule of law. The state’s power is based on a social contract between autonomous individuals who agree to give up their rights to do as they please in return for the state’s protection. It is legitimated both by the common acceptance of the law, and…through popular elections. Liberal rights are meaningless if they cannot be enforced by a state, which is a legitimate monopoly of force over a defined territory…Ultimate power, in other words, continues to be the province of national states, which means that control of this power at this level remains critical.”[v]
The crisis point, national damage caused by section 35 is evidenced by the facts, all indicators of a failing state, that:
- “Aboriginal peoples” have become a third fount of constitutional sovereignty.
- The federal government and the provincial governments are no longer sole and supreme law-making authorities within their own jurisdictional spheres.
- The federal and provincial governments no longer have supreme control over all of Canada’s physical territory.
- Canada’s economy is under threat because of the unsolvable conflicts and resulting legal uncertainty caused by pro-Aboriginal laws, a fact admitted by B.C. Premier Eby.
- The constitutional consult and accommodate obligation, which usurps the state’s right to have the sole and final say over resource projects and other projects proposed for both public and private lands, now gives Aboriginal peoples a practical veto over them.
- Aboriginal title, which usurps the state’s supreme power over private property, undermines the rights of private property holders and thus undermines the business and private property certainty absolutely required for Canada’s capitalistic economy to function.
- State laws designed to protect the rights of individual and vulnerable Aboriginals, administered and enforced by neutral and professional state institutions, are being supplanted by amateurish, unregulated, sub-state Aboriginal organizations, thus endangering these vulnerable Aboriginal individuals.
- –American Indians have acquired Canadian Aboriginal rights, thus enabling foreign interests to interfere in Canada’s internal affairs.
- The Canadian judiciary, in interpreting section 35, consistently manifests the appearance of bias and excessive activism in favor of Aboriginal causes and interests, thusly betraying its core state sovereignty-maintaining function and undermining public trust in it.
- Section 35 has caused a serious rise in divisive and illiberal Aboriginal race talk and racial exceptionalism.
- Aboriginals are experiencing historically high levels of social dysfunction and failure. Section 35 Aboriginal rights are preventing the Canadian state from ameliorating this dysfunction and failure.
- The aggressive and insulting pursuit of section 35 race-based rights is causing increasing racial tension, resentment and division between Aboriginal and non-Aboriginal Canadians.
These damages and divisions are endangering Canada and must be lessened and eventually eliminated. Only repealing section 35 can bring this about. Legislating the repeal of UNDRIP and DRIPA, while absolutely required as well, will not fully or fundamentally address these damages and divisions, which are constitutionally, not legislatively, based.
Had Mr. Rae and his fellow framers imagined this they would never have put section 35 into the Constitution.
As Edmund Burke wrote in Reflections:
“Men have been sometimes led by degrees, sometimes hurried into things, of which, if they could have seen the whole together, they would never have permitted the most remote approach.”
The price for section 35 – the grave social and economic harm caused and the constant legal challenges to and the resulting impairment of Crown sovereignty itself- has proven to be too high.
Constitutions can and should be amended when circumstances warrant.
As historian Jill Lepore recently wrote:
“Amendment is a constitution’s mechanism for the prevention of insurrection – the only way to change the fundamentals of government without recourse to rebellion. Amendment is essential to the …constitutional tradition -so methodical and so entirely a conception of endurance through adaptation -that it can best be described as a philosophy. It is at this point a philosophy all but forgotten. “[vi]
The American constitution has been amended twenty-seven times, including to abolish slavery and give women the right to vote.
Many countries in Europe have had several constitutions over the one-hundred-and-fifty-year era of European constitutional democracy, demonstrating that nothing constitutional should be considered to be permanent.
The makers of the Constitution Act, 1982, knowing that future generations might feel the need to amend it, built in an amending provision. Seven provinces out of ten representing at least 50 percent of the population must agree to the proposed amendment.
Amending our constitution would not be doing something undemocratic. Rather it would be doing something consistent with the wording of, the intentions of the framers and sound constitutional theory.
The unforeseen, modern Aboriginal reality is that the vast majority of Aboriginals, with the exception of their well-to-do and powerful elites, have become a segregated, disadvantaged underclass of Canadian society, straitjacketed by bad, race-based, illiberal laws.
This can only change by repealing section 35, the root cause of the crisis.
Aboriginal elites and many others will correctly charge that repealing section 35 would constitute an abrogation of Aboriginal rights.
But section 35, the main source of those rights, has been fairly tried and found seriously wanting. Aboriginal leaders would lose rights, but Aboriginal peoples would gain immeasurable benefits, including the right and privilege of being treated equally under the law.
Abraham Lincoln’s abolition of slavery represented a breach of the original agreement amongst the founding states of America that slavery would be permitted. He is a deal-breaker in that regard and is hailed, partly because of that, as one of America’s greatest presidents.
As in the case of the abolition of American slavery, an egg well worth breaking for the omelet of freedom and equality, repealing section 35 for the purpose of bringing about racial and legal equality between Aboriginal and non-Aboriginal Canadians would be regarded in hindsight as a much-needed and morally justified act – an act that would bring Canada’s reality into conformity with its Enlightenment ideals.
The eventual affording to Aboriginals of the status of full equality with their non-Aboriginal fellow citizens would be Canada’s version of Lincoln’s Emancipation Proclamation.
It would constitute the Crowns’ full and final satisfaction of their enduring duty to act honorably towards Canada’s Aboriginals.
The effort to repeal section 35 would have to be elevated to the political and moral status of a national undertaking akin to other similar, risk-bearing nation-building and nation-defining undertakings Canada has carried out in the past, with attendant risks and disturbances to be resolutely endured and overcome.
In addition to restoring the health and efficacy of the Canadian state, repealing section 35 would mend a gaping, illiberal tear in our national fabric and set the stage to begin the long process of bringing Aboriginal Canadians into the Canadian family as true equals.
Peter Best
Sudbury
January 5th, 2026
Thereisnodifference.ca
[i] From Black Earth – The Holocaust as History and Warning, Tim Duggan Books, New York, 2015
[ii] From his Farewell Address
[iii] From Reflections on the Revolution in France, Penguin Books, London, 1986
[iv] Canadian Lawyer Magazine, July 2014
[v] From Liberalism and its Discontents, Farrar, Strauss & Giroux, New York, 2022
[vi] From How Originalism Killed the Constitution, The Atlantic, October 2025
