Title: Constitutional Silence, Section 36 and Public Services on Indian Reserves

Date: Tuesday, January 27, 2026

Description: Canada’s long-delayed legal reckoning with unequal public services on Indian reserves is only beginning. This article has two main parts. First, it examines why courts have largely avoided the constitutional questions raised by decades of inadequate services on reserves. That silence is striking, given the persistence and scale of the problem.

Second, it argues that Section 36 of the Constitution Act, 1982 should play a central role in that debate. Section 36 calls for “reasonably comparable services” and “essential public services of reasonable quality” for all Canadians. Yet Indian reserves have effectively been excluded from equalization, a gap that has allowed inequality to persist.

The article proposes treating Section 36 as a set of directive principles — not directly enforceable rights, but more than political promises — to guide courts and governments. Although no Canadian judge has yet used Section 36 this way, it offers a promising tool for addressing long-standing inequities.

Speakers:

• Andrew Stobo Sniderman - PhD Cand., Harvard Law School & Co-author of Valley of the Birdtail: An Indian Reserve, a White Town, and the Road to Reconciliation

Podcast:

Transcript:

Great.
00:00:00
So Bojon and Dinawemaka Ni Dog, Nija Anishinaabeg, Nijpamatasig, Nikigin Dodem, Gigita Indigo Anishinaabemong, Niashinigmeen Nidonjiba, and Niminoaya Nongom.
00:00:12
Hello, everybody.
00:00:13
It's wonderful to be here this morning or this afternoon with Stobo Snyderman.
00:00:19
And I just introduced myself and Anishinaabemowin.
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My name is Lindsay Burrows.
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I'm a professor here at Queen's.
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I'm a member of the Otter Clan.
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And it's just a real delight to get to have Stobo back here to share what I view as the constitutional law journal article
00:00:42
that is the companion that I was desperately wanting as I read The Valley of the Bird Tale book, which he is co-author on.
00:00:50
And The Valley of the Bird Tale book, I just want to talk about that for a moment here because it was my introduction to Stobo.
00:01:01
A couple, actually three years ago, we had a upper year JD student here at Queen's who had come across the book in the summer and read it.
00:01:11
And she had never met me, but she reached out to me and said, we have to get these authors to come to Queen's and talk about these stories and these issues related to the unequal provision of education services on Indian reserves.
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And here we are now, just a few years later, and every single first-year student at Queen's Law has now read the book or is in the process of finishing it up.
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Yay! Yes, that's right.
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And although we have been a small part of sharing the book, the book was already a national bestseller and it's a part of the curriculum in the grade 11 English courses in the Ontario education system.
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So it's just exciting to think about this next generation coming up here who are going to be these future policy and governance leaders, but also moms and dads and teachers and plumbers and people in society.
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who are going to have some background on these topics that just several decades ago many people weren't exposed to in public schools.
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Stobo is a SJD candidate at Harvard Law School.
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He is a Rhodes scholar.
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He is a lawyer.
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He's argued before the Supreme Court of Canada.
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He's an accomplished author, even beyond these law journal articles that he writes in his books, but also writing in the New York Times and McLean's and the Globe and Mail.
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And he has this ability to really reach a wide audience with his ideas.
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He strikes this balance of depth and clarity that I really admire as a professor and someone who also strives to communicate effectively.
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And he has two children, a four-year-old and a two-year-old, and a wonderful partner, Mariella, who Josh supervised when she was doing her LLM at Queens.
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So he has that connection to this university as well.
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And he tells us that we are the most organized of any law school
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that he's been to when giving a talk.
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So we have Natalie.
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Yes, we have Natalie to thank for that.
00:03:38
Yeah, and I guess what I just want to say before turning it over to you for the talk today is I think the issues that
00:03:47
Sobo is really grappling with in his scholarship, including the paper today, are so important because they reveal clearly the weaknesses of the Canadian state to support First Nations people living on reserves.
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And they help us to really think through, so what now?
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Because I think that's the big question.
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Like we need to show what's happening and how bad it is.
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And it's only when we can really see that truth that we can then say, okay, so what are we going to do about this?
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Like what is our sphere of influence?
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How can
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we contribute to differences, what kind of ideas can we come up with here?
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So we'll see where the conversation goes after the presentation today.
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But I'll turn the time over to you now to teach us.
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Thank you.
00:04:52
Thank you.
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Thank you.
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Thanks for those warm words.
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The best part of my morning so far was meeting her daughter who has matching earrings that Lindsay also beaded.
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So it was the best welcoming committee.
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And I do want to thank Natalie.
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You've been wonderful.
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And you stole my Josh Cardin thunder, but he's my original link.
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So thank you for being here.
00:05:21
And I want to thank my mom.
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especially because she's why I can be here, because there's a snow day today in Boston, and I'm just hoping that she can get through the day with minimal injury to herself or my children.
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So thank you, mom.
00:05:37
Okay, so my plan today is to, and thank you to the online people if you're there, and thanks everyone for taking some time in your day.
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I got a lunch.
00:05:48
I'm sorry you didn't get a lunch.
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So my plan is I'm going to talk for about 40, 45 minutes-ish, and then I really welcome your back and forth online or in person.
00:06:04
And my goal today is to get you excited about a part of the Constitution you maybe have not thought about ever.
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I had not until kind of stumbling upon it.
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I've given you a handout.
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You don't have to really dwell on it yet.
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I think the words matter.
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And I think there are moments that where I, even as a lawyer, wonder whether these words that were written down in our country in 1982 mean anything.
00:06:35
But I think they do have power and they can have power.
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And it's kind of up to us to breathe that life into them.
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So you can tell me at the end of this if I have succeeded in getting you interested.
00:06:49
Okay, I've got a slideshow.
00:06:51
I usually don't because it usually goes wrong, but I've got an expert with me, so I think it's going to get a lot of it.
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Okay, so what I'm going to share with you is available in a recent article.
00:07:02
If you're interested, please take a look.
00:07:04
I'm not going to go through everything, just the most salacious bits.
00:07:08
So to start off, I want to give you a couple pieces of context.
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The first thing you may know,
00:07:17
is, as Lindsay just mentioned, just the fact of worse public services on reserves by any measure of a province or a territory.
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So what does this actually mean?
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This means worse schools all across Ontario, all across Canada.
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It means your teachers are paid less.
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It means you run out of school supplies.
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It means you don't have
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literacy counselors, and so on and so on.
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And it's linked to the fact that graduation rates and outcomes are worse for students on reserve.
00:07:59
So we're talking about 110,000 Canadians there.
00:08:04
We're talking about drinking water, which has been in the news of late.
00:08:09
in lawsuits.
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And you may know that in a Mohawk community of the Bay of Quinte, 65 kilometers from here, there was a boil water advisory that just ended in 2022 that was in place for 14 years.
00:08:25
So they could not turn on the taps and get drinkable water.
00:08:29
And that is true for many parts of our country and in some cases for decades and decades.
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We're talking about police.
00:08:37
There was just a big Supreme Court case that I talk about at the beginning of this paper where indigenous police services, which are present in many communities of our country, just have demonstrably worse capacity to do a good job.
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And I talk about this one community in northern Quebec where squad cars literally were running out of gas.
00:09:01
They didn't have speed guns to monitor speeding near schools.
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They cannot do
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very serious things like investigate sexual assault cases and so on.
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So we're talking about police, talking about emergency services.
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People have died because their homes have caught fire in communities in Ontario and the services were just not immediately available as they would have been had they been living in a town nearby.
00:09:29
And we're talking about child and family services.
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I know that
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Some students maybe in this room were hearing more about this yesterday.
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And there's a famous case that was decided about 10 years ago about child welfare services on reserve, where this was at the kind of the heart of this case, led by Cindy Blackstock.
00:09:48
And so that's affecting children all across this country as well.
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And so on.
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I'm not going to dwell on why this is the case, why there is this fact.
00:10:00
And if you're interested,
00:10:02
Douglas and I do our best to explain why this happened in the context of schools, and it's related to why it happens across the board.
00:10:10
And I think it's a mix of legal reasons and social reasons and historical reasons, and we do our best to explain that in this story.
00:10:20
So my best answer is there, and maybe you'll be there tomorrow to hear more about that.
00:10:26
Another piece of context for you is that for a couple
00:10:32
strange reasons, our constitutional law has really struggled to see this problem, even though it's been affecting hundreds of thousands of people for decades across the board of these critical parts of our lives.
00:10:49
And there's a couple of recent exceptions, one of them relating St.
00:10:54
Teresa Point.
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There was just a recent case about drinking water and housing.
00:10:59
in Manitoba.
00:11:00
But for the most part, for decades, even though it's been a big problem, our constitutional law hasn't been able to see this.
00:11:08
And as Lindsay just put it nicely, you know, the way that the structure we have just misses these big problems.
00:11:16
And I think this is a pretty pressing example of this.
00:11:20
I explained this in the paper why this has happened, and I'm not going to detain us now unless you want to hear about it more later.
00:11:30
Third piece of context, and this is why the Department of Justice asked me to present this paper to hundreds of their lawyers and to the Department of Indigenous Services a couple months ago.
00:11:41
And that's because there's billions of dollars of liability at stake.
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I mentioned a case that was just, it's a class action that's proceeding
00:11:52
where billions of dollars are at stake because there is not drinkable water in large parts of northern Manitoba and Ontario.
00:11:59
But it's also relating to schools.
00:12:02
There's a big human rights case about schools and housing, as I mentioned.
00:12:07
And so there's 10s and even hundreds of billions of dollars on the line.
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And sadly, if we're going to see this problem or if the government's going to see this problem, it's because there's a legal liability that is slowly
00:12:21
coming into shape.
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And that's why, finally, the government is starting to see this as a legal problem they actually have to grapple with.
00:12:31
So these are the piece of context that kind of bring us to Section 36 as I see it.
00:12:38
So I want to bring you back to 1982.
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We have the Charter of Rights and Freedoms and the rest of, in addition to our
00:12:50
formal constitutional text that is signed.
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If you're in this room, it's because you're familiar with this document, the Charter of Rights and Freedoms.
00:12:59
You may know that it has 34 sections.
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You also likely know that Section 35 is about Aboriginal peoples of Canada.
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Every con law class will teach you about this.
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You may not know, I did not know until about two years ago,
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The thing that comes next is a thing called Section 36.
00:13:25
And I think it actually has a huge deal of relevance for thinking about this problem that I started with of unequal services on reserve.
00:13:38
And it's never been substantively interpreted by a judge.
00:13:42
So it's been 44 years.
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We still hasn't, we still don't have a judge who's told us what they think this means.
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So it's kind of up to us to figure out what it means.
00:13:55
So what does this mean?
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I think there's, you know, we're Canadians and thankfully we're not originalists, but neither is amnesia very helpful in this case.
00:14:09
So I think if we learn about the history,
00:14:13
They can help us figure out, you know, the principles and the values behind this.
00:14:17
And as it happens, between 1969 and 82, there were eight drafts of this text.
00:14:25
And at the time, it had two main purposes.
00:14:30
And you still don't have to kind of parse the text in front of you, but I'll just, in the big picture, the second part of this, it's about equalization, as you may hear about it in the news.
00:14:43
And what's going on there is that the provinces really wanted a commitment in our constitution to guaranteed unconditional transfers to help them deliver services.
00:14:56
So if you're PI or if you're Manitoba or you're a poorer part of Canada, you really wanted a commitment by the federal government that every year you're for sure going to get more money to help deliver your services.
00:15:08
Because until that point, starting in the 1940s, the federal government had
00:15:13
started to give these on a discretionary basis.
00:15:16
And there's this wonderful book by Mary Jannigan that talks about the history of equalization.
00:15:23
And her book kind of ends in 1982 when we get this section.
00:15:28
So a lot of this section is about equalization.
00:15:31
It's about how we share money to poor parts of Canada.
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And the first part of this, section 36-1, is about the federal government
00:15:42
wanting to secure their authority to give conditional money.
00:15:47
So equalization is about unconditional money that we send to provinces and territories.
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And this first part is things like the Health Act, where the federal government says, we're going to give you money in provinces, but we're going to set conditions.
00:16:00
And it wasn't quite clear pre-1982 whether that was respecting the division of powers.
00:16:08
And so this text helped clarify that.
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And as far as I know, no one working on this text was thinking about Indigenous peoples, about First Nations.
00:16:20
But I think today it's of great help to us, and I'm going to try to explain why.
00:16:28
So now I'm going to kind of zoom in on this second part of the text you've got before you.
00:16:35
And if you're online and you're really keen, you can just Google the
00:16:42
Text here.
00:16:42
I don't know if they can see the slideshow.
00:16:44
I hope you can.
00:16:44
Yeah, great.
00:16:45
So I'm just a little bubble in the top right and it's mostly the slides.
00:16:48
That's great.
00:16:50
Okay, so I want to call this the equalization clause because I think that's kind of what's going on.
00:16:56
And, you know, again, the, you know, what is equalization?
00:17:01
It's a program, a federal program.
00:17:04
The federal government collects tax dollars federally across the country, and then they send money, billions and billions of dollars, I think it was $20 billion last fiscal year, to provinces and territories with less fiscal capacities, what they call it.
00:17:18
Basically places that can't raise as much tax revenue.
00:17:22
And the point of this is to help places like Prince Edward Island and the Northwest Territories deliver decent schools.
00:17:34
and hospitals that they otherwise couldn't afford.
00:17:38
And Mary Jannigan, this wonderful historian, journalist, talks about equalization as the improbable glue that holds a nation together.
00:17:49
I wouldn't quite put the nation thing as she did, but I think it's this unheralded, amazing thing that our country does, which is we share
00:17:58
resources in a way that makes it so that if you're attending school in New Brunswick, you actually attend a decent school.
00:18:06
It's an amazing thing.
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We figured out how to share and we institutionalize it in our law.
00:18:17
Excuse me.
00:18:19
Okay, so why do we have equalization?
00:18:23
I think it's kind of been implied in what I've said, but the first reason is
00:18:27
we want our poorer provinces to survive because if they have terrible services, people will leave.
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And if they have to raise taxes to a huge level to pay for decent services, people will leave.
00:18:41
So you want to kind of avoid those two problems.
00:18:48
Your daughter's getting me sick.
00:18:51
I'm just struggled.
00:18:52
The second, the
00:18:53
The second reason is because there's this basic realization that we're interdependent.
00:18:58
So if one province does a terrible job of educating people, those people end up moving elsewhere.
00:19:05
And so there's externalities, good and bad.
00:19:08
And we realizing that we want there to be decent schools everywhere.
00:19:13
And then there's this third kind of more ephemerable element, which Trudeau Sr.
00:19:20
talked about, which is we wanted kind of this shared
00:19:23
national sense of community.
00:19:28
And he talked about the provision to every citizen wherever he and should have said she lives of adequate levels of public services.
00:19:37
And in particular, he was talking about health and welfare and education services.
00:19:40
So he wanted us to be bound together.
00:19:45
And if you are reading carefully, you'll see
00:19:53
that this principle of equalization wasn't actually extended to territories it just talks about provincial governments and seeing this Canada immediately passed a statute that also included territories so that's why Yukon and the Northwest Territories and Nunavut also are part of this system
00:20:19
So these are the parts of our country that are bound together by this. And just to give you a sense of how important this is, here's the amount of money that's being distributed, if you can read it. And here's the percentage of a provincial budget that's coming from equalization. So in New Brunswick, it's 23%. It's pretty big. I'm from, I grew up in Montreal. 11% of the provincial budget. If you're in a territory, it's the majority of,
00:20:46
what you're using to deliver services. So it's very significant. And last year, Alberta, Saskatchewan, and BC didn't get anything, which is why you hear about equalization complaints only in those places. Okay, this was my point about how the territories were not yet included. This is a map of reserves in our country. Every red dot is a reserve, an Indian reserve.
00:21:18
And I want to, and there's 330,000 people that live in these places. And the punchline of this map is that these communities are completely excluded from equalization. They are not part of the program. The principle literally stops at the reserve border. That doesn't mean that if you're a
00:21:43
ban council government, you don't get federal transfers. You do. And often they're in kind of the Nunavut level of a function of your budget. But it does mean that there's no legal principle that entitles people living in those places to comparable services. That applies everywhere else that we've given to 35.7 million people. These 300,000 people, they're just excluded from this.
00:22:12
And I submit to you that one of the reasons why services are worse is because this legal safety net is just not there. And to me, it's this glaring fault in our constitutional architecture that we haven't really chosen to dwell with. And I should say that, you know, a banned government is different from a provincial government
00:22:41
or a territorial government. It's not as simple as sending more money to a band council government because services are delivered in often different ways. And I also want to clarify that what I mean is not that every part of our country should have open heart surgery, whether you're in northern Ontario or northern Manitoba, but it does mean that you should have access to quality services. And part of what our book is really about
00:23:10
is this appalling reality that you have parallel communities all across Ontario, all across Canada, where you have towns with quite good services. And right next door, there's all these deficient services. So it's true that if you're in a very rural area, you're going to get different kinds of health care than if you're in downtown Toronto. But that's not really what we're talking about. And the idea of giving quality services, I think, is quite capacious. And
00:23:38
bears no resemblance to what we're actually doing. I wanna also kind of bring to your attention that if you read in the fine print of modern treaties, and these are these quite amazing constitutional arrangements that have been negotiated in the Yukon, in Quebec, that are sharing jurisdiction with indigenous governments, there's always a provision that says,
00:24:06
something like the equalization principle that says you're going to get comparable services, which makes it all the more galling that all these reserve communities are excluded. So this is a big problem. And I think Section 36 helps us see it. But the way it's written, as I pointed out, on its face, because it's just about provincial governments,
00:24:34
I don't think in court it's of any use to us. In the same way that the federal government had to write a statute to extend it to territories, it's kind of a choice that's up to us. Do we write another statute? Do we extend this principle in some way? That's kind of up to us. A court cannot do that for us. So in the meantime, the action to me is here. Section 36 1C.
00:25:02
And hopefully the handout is a bit helpful to you in just kind of grappling with the words of this provision. And I confess to you, if you've glanced at this while we're together, it's actually not a very easy thing to read, especially the first 20 words. I'm still not sure what it means. Maybe we can figure it out together. So I've focused in on a part that I think is most interesting to us, and that's what I'm going to call the quality clause. And it talks about
00:25:34
delivering essential public services of reasonable quality to all Canadians. And there are some cases where this has come up in the past, but as I told you before, no one's actually gotten to the stage where we try to figure out what these words mean. And the issue has always been whether it's justiciable, that is, you know, it doesn't give you a right
00:26:01
of action in court. Can someone lift up their hand and say, my Section 36 1C equality clause was infringed, can I go to court? And that's occupied all the oxygen. And Lauren Sosson and many other wise people have talked, you know, made arguments that, yeah, it actually should be justiciable. And courts have said, some courts have said no, some courts have said yes, but it's actually never gotten to the merits. So
00:26:31
We don't really know yet, but that's been what the debate has been about. There's one asterisk which I want to get back to, which was this recent case I mentioned earlier, which where Section 36 was argued. Hopefully they use my paper on appeal. And it came up a little bit, and I think kind of a disappointing way, but it did actually a judge had a chance to say something about it, and they didn't, but it did come up, and so.
00:26:58
It is actually kind of in play in a way that it wasn't. Part of what I'm trying to do in this paper is to help us think through, since no one has really done this yet, you know, what we think 361c means. And I come up with a pretty straightforward way to think about it. And the young constitutional law students can
00:27:24
hopefully recognize some of the ways that we're thinking about it here. So think of a spectrum of what words in the Charter of Rights and Freedoms mean, for example. On the one hand, you've got a preamble, which is kind of fluffy,
00:27:48
usually quite agreeable words that you're not going to use in court to get you a remedy. And on the other side of the spectrum is an enforceable right, where you can say, yes, my freedom of speech was infringed. I am entitled to a remedy. So Peter Hogg
00:28:13
thought that Section 36, or at least part of Section 36, was kind of like a preamble. It was a political, moral aspiration that didn't really mean anything. There's this interesting category that I think in law schools, in common law classes, we don't spend that much time thinking about. It does come up in the secession reference, which I think most students read. And it's this idea of a non-enforceable constitutional duty, like the duty to
00:28:43
negotiate or constitutional conventions, in our system of government. So it's the kind of duty where you say it exists, it's a real thing, but a court's not going to enforce it. I think as law students or even as lawyers, we're not used to thinking about this box of things. We're used to thinking of either it's useless, airy fairy stuff, or it's an enforceable right.
00:29:06
And we're interested in those because courts can tell people what to do. We don't spend that much time on this, but our law does see this. And part of what I'm trying to do in this paper is to say, there's kind of this thing in between, the non-enforceable duty and the enforceable right. And I'm getting this from by looking at international cases. And there's this term called directive principles, which was new and interesting to me. And the idea is that
00:29:34
In a text like Section 36, it's aspirational, it's not quite enforceable in the same way, but it means something. It's not just window dressing in a constitution. And if you look across the world, it's amazingly common to have sections like this. And in some places like Ireland and India, there are explicit sections after the fundamental rights, there's a section that talks about
00:30:03
directive principles. And it talks about things like a right to a livelihood and, you know, access to courts. They say things about income inequality and things like that. And if you look at this case law, in some places it's justiciable, in some places it's not. In some parts of the constitution, in some constitution it says you can't enforce this in court. And in some places like Canada's,
00:30:32
We don't say anything about whether what a court's rightful place is. And what I'm trying to argue in the paper is that the main takeaway I want to get at a minimum is that whether or not
00:30:47
Section 36 is justiciable, it's still helpful to us in court. We can still use it. And I'm, you know, getting inspired by India and other places where you can see that it's used as an interpretive aid, these directive principles. So as you're interpreting something else, you can actually make use of these words, which may sound obvious, but there's this amazing resource, I think, that has been sitting there
00:31:17
And there are more and more court cases about these deficient services, and I'm kind of imploring my legal friends to use them. And I think if we, as I said earlier, we can imagine that it's useful. I think it will become useful. So for example, I think if you interpret
00:31:35
an equality right, a Section 15 right, in conjunction with Section 36, it becomes a much sharper claim. I think with treaty rights, you can combine it with Section 36 language. I'm most familiar with Treaty 4, and there is, for example, a right to a school on reserve. And if you combine that with
00:31:57
the right to a quality, Section 36, you might get something resembling a commitment to a quality school because the federal government in some legal contexts feels like it doesn't have much of an obligation at all beyond just there being a physical school standing there. I think you can imagine cases where your
00:32:18
using the honor of the crown as a principle, and you're using contractual language, like in this policing cases, and you're using Section 36. And together, again, I think you get a much sharper claim for a judge and for your legal argument. And I even think that if you're just interpreting a statute outside of the context of a constitutional right, I think it is also
00:32:47
helpful. It's never been used, though. You know, it was recently argued in this case, but but it is up to new litigators to use it. And I I think the reason I think the Federal Government is a bit worried about it, and that's why they were interested in talking to me, because it is starting to come up in Facta. Okay, that's the heart of my claims. I just want to take a moment. I think I've still got plenty of time.
00:33:18
Forgot some of my fancy diagrams. Okay, that's the takeaway. I think they're still helpful as interpretive aids. I want to show to you that I see some objections that might come up, and I think they're good objections. And the first three have to do with Section 36.2. So if you read it carefully, you may be wondering to yourself,
00:33:47
And by the way, Section 36-2, we all agree, it's not going to be something that helps us in court, but I still think the principle of equalization is a very powerful, normative story that helps us to figure out what's wrong. So you may wonder to yourself, what does it mean to have reasonably comparable levels of services at reasonably comparable levels of taxation? If you've ever done any work in this area, you know that the first thing you almost always hear is, oh, but
00:34:16
taxation is different on reserve. And it's usually more derogatory ways to put that. And so you might wonder, well, if in some cases, for some reasons, for some kinds of income, if taxation is diminished on reserve, does that mean the commitment to services is proportionally diminished? If you look at how equalization actually works, the answer to that question is no. Because the question
00:34:46
the federal administrators of equalization ask themselves is, how much revenue government would you raise if you had standard taxation? And for almost every reserve economy, many, I would say the majority, not almost every, but many economies, even if you had totally standard taxation, you would have very little capacity to generate tax revenue. And so that's what is relevant, not
00:35:10
how you tax, it's how much you would raise if you were taxing normally. So I don't think that's a big objection, even though on the surface, it seems like a problem. If you're a federal public servant, the first answer to me is always, well, comparability, comparable services, it's policy for us. It may not be a legal
00:35:34
written in the Constitution. But to us, it's policy. And it's true that if you go look at these policy documents that are updated every year and the links always get broken, and so I always forget to take pictures of the government websites, but it'll say something like, on reserve, our goal as a federal government is to have comparable secondary school education, for example. And that sounds good, and it is in some sense.
00:36:01
But if you actually look at what the federal government's position in litigation is, it's, yes, it's our goal, but it's a discretionary aspiration. It's not a duty on us. And that was the government's position in the water case. It was, well, we see how much money is available in a given year. We want to give you drinking water, but if we don't, we're not legally liable. That's literally the, that's literally in the legal position of the government.
00:36:30
probably unsurprisingly. So I don't take it very seriously that it's written in a policy document that can change on a dime, which they do. Third thing you might be thinking, if you've read carefully these cases about discrimination of child welfare services, part of what these cases are arguing is that
00:36:54
In fact, we don't want comparable services in indigenous communities. We want to do things differently. So I don't want a carbon copy of high school education from Kingston in the Bay of Quinte. And I think that also is a serious seeming problem. And in some ways it is. But I think
00:37:16
There are ways to talk about quality education that still uses the language that I'm interested in and gets around with this idea of just copying what is done elsewhere. And I think there's ways to affirm comparable goals like quality education without getting stuck in the fact that you need to replicate what is happening in a regular public school education. So I'm not that concerned about these three. The 4th
00:37:45
objection might be, certainly if I was a government lawyer, I would look at 36 1C, where it says providing essential public services of reasonable quality to all Canadians. And their position is going to be, if you sue them, essential is quite a narrow box. And in fact, the federal government
00:38:04
has abandoned a piece of legislation that said policing is an essential services on reserves. And part of the concern, I think, is that they're signing on to a whole bunch of liability, because then they'd actually have to ensure that there's quality policing on reserves. So I think, you know, if there's someone in this room or, you know, in a future archival piece of work I'm going to have to do is really to get to the bottom of, you know, what did essential mean when they were writing these words?
00:38:31
Can that help us figure out what it means today? And as I mentioned briefly earlier, certainly Trudeau in speeches, they had a lot more in mind than COVID emergency services. It's not just police and what an emergency law we would think of as essential. It's also health in schools. So I think there's a lot of room there to nail things down. And it's not as scary to me as it might seem. I just want to
00:39:00
I've got two more. And then I hope you have more objections, 'cause that's the whole point of being here, is to improve this argument. Okay, so judges, you may know, they're scared of asking the government to spend huge amounts of money in general. And it's tied to this broader principle and ethos of being a judge, of being restrained. And indeed, in this recent case, which if I have a moment, I'll talk about, when the judge
00:39:28
looks at Section 36, they quote this big paragraph, which is half of their discussion of Section 36, which is, in constitutional law, we should be restrained in what we say, because we don't want to open a can of worms and we have these other ways to resolve the issue. And so we're going to step back. And so Section 36 is scary, I think, to a judge. And I want to acknowledge that. And I think that's part of why I'm looking for this interstitial space between duty
00:39:57
and preamble to help a judge read some results without them thinking that it implies this duty, that it implies billions and billions of dollars that they have to spend. Because I think certainly that straw man or that cascade will be an argument that comes up. So this is a serious, I don't want to say it's a problem, but that's a part of this conversation. And as Lindsay
00:40:25
pointed out within 30 seconds of picking me up today, I want to be clear that even if I have my way and we read this text as I would like us to, it doesn't say anything about who delivers services.
00:40:44
So even if there was this norm of quality services on reserves, it doesn't tell us whether it should be the federal government that doesn't, the provincial government,
00:40:55
a banned government, an Aboriginal government that is bigger than that.
00:41:02
And that, as you may know, is maybe the most complicated thing of all, is these overlapping jurisdictions that's left us in some cases in policing, for example, where you have, you know, OPP and federal police and on reserve police, and it is a difficult thing to manage.
00:41:23
And so,
00:41:24
I have nothing to say about this.
00:41:25
I have views, but Section 36 cannot help us at all.
00:41:28
And that's a, it's not a deficiency, it's just kind of a, it doesn't help us there.
00:41:34
And I think that may be the most challenging thing of all.
00:41:38
I wanna end formally by reminding ourselves of the stakes.
00:41:44
And I think it's this very basic thing that Trudeau was trying to articulate as they were arguing over this provision, which is,
00:41:54
that we seek to make it possible for all of us to enjoy decent services wherever you live.
00:42:03
And I think for most of us, that's true.
00:42:05
And I'm hoping that I've persuaded you that this might be a way that we can do a better job of forcing our government to do that in places where it's not.
00:42:16
So I'm going to take a breath.
00:42:20
And there's an optional
00:42:22
addendum, which I should probably add now, which is this case, St.
00:42:27
Teresa Point, which came out after the paper was published.
00:42:31
And I'm sure it's going to be appealed because it involves a lot of money.
00:42:38
And it's a class action, which is how we've indigenous communities have solved the problem of access to constitutional justice, which is so expensive.
00:42:46
Now we have class actions combined with charter claims
00:42:51
And that's why lawyers are representing them in the 1st place, which is another real problem that I just mentioned briefly in the paper.
00:42:59
And what the judge decides, interestingly, is they go for enforceable right.
00:43:08
So they say the claim was about access to drinking water and housing on reserve.
00:43:16
And the judge in this case said there is a fiduciary duty
00:43:21
enforceable fiduciary duty of the government to provide these services.
00:43:26
And so they went all the way, which may hold up on appeal and on the next appeal.
00:43:35
And so I'm trying to find a more modest way forward.
00:43:41
And the judge in this case had one paragraph, as I said, on Section 36, and they said three things, or two main things.
00:43:48
One of them was, I want to be restrained.
00:43:51
I don't need to go there.
00:43:52
I'm not gonna go there.
00:43:54
And the second thing, which is the thing that kind of troubles me, is they said, if I may quote, The wording of Section 36 clearly shows that it relates to equalization between the federal and provincial levels of government.
00:44:10
And now I'm paraphrasing, and there's no evidence that it has anything to do with First Nations people.
00:44:16
And what is disappointing about that is that Section 36 has this other part.
00:44:20
that was indeed argued at Section 36-1, the quality clause.
00:44:24
And that's not about equalization.
00:44:27
And it's true that there's this textual problem when it comes to the second part and equalization.
00:44:33
But Section 36-1, I think, is totally live.
00:44:36
And it clearly talks about all Canadians.
00:44:43
So it seems very curious to me that a judge would want to say, well,
00:44:49
They literally said it's clear that Section 35 relates to Aboriginal peoples, but this Section 36 thing is just about provinces and the feds.
00:44:57
And that just doesn't seem, I would want to argue on appeal that that's not a good interpretation.
00:45:03
I've spoken to the lawyers.
00:45:04
I don't think they are going to go this way because they're winning already on other things, but I think it's a bad obiter paragraph that hopefully one day is overturned.
00:45:16
So with that,
00:45:18
I'm going to take a real pause and invite any reaction, any question, any skepticism, ad hominem attack.
00:45:25
I'm here for it.
00:45:26
And thank you for your attention so far.
00:45:28
Good place to end here.
00:45:29
We're at time.
00:45:30
And I'm looking at that arrow on the screen here.
00:45:34
And I feel like our conversation has gone from ranging from the technical to the expansive in this.
00:45:40
So this has been really fascinating.
00:45:42
And thank you so much for
00:45:45
all of your thoughts that you've put into this and passion and sharing it with us today.
00:45:50
Thank you.
00:45:51
Thank you very much.
00:45:52
And you read this when I was about 8 months pregnant with this paper.
00:45:55
So special thanks to you for giving your feedback.
00:46:00
And as anyone knows who's written any piece of work, there's lots and lots of people who helped me think this through.
00:46:06
And I'm grateful to get your thoughts.
00:46:08
I've written them all down and I appreciate you helping me think through this as a part of a group.
00:46:13
So thank you.