The Politics of Righting Canadian Native Indian wrongs

Tu Tangata, Issue 36, 1 June 1987, Page 33

The Politics of Righting Canadian Native Indian wrongs

HE RERENGA KORERO

Augie Fleras, Sociology Department, university of Waterloo, 1987

// essence of Canada . . . I has been the coexistence, .M. the sharing that our ancestors had with settlers . . . and from that arose the concepts of racial tolerance (extended to) the immigrants who came from other parts of the world. There have been times when maybe that’s been bruised a little, but that concept of Canada has maintained itself . . . there is no other country in the world where indigenous peoples, nations, have come together to work out an agreement with the colonizing governments the provincial and federal governments.” Chief Gary Potts, Constitutional Negotiator for the Assembly of First Nations, 1987.

Canada once again has forfeited a rare opportunity to serve as a beacon for the rest of the world in redefining government-aboriginal relations. Consistent with previous outcomes which also ended inconclusively, both the federal and provincial governments as well as Native Indian leaders failed to reach a workable formula for extending the right to aboriginal self-government within the constitutional framework of Canadian federalism. Neither preliminary sessions nor two days of formal negotiations cleared the way for a compromise draft of a text entrenching aboriginal self-rule rights. Even a watered-down version proposed by Prime Minister Mulroney collapsed under the collective weight of diverse interests and competing delegate positions. The implications of this fourth and last conference which ended in disarray amid accusations of racism and hypocrisy were immediate. Not only did Canada lose out in an effort to become the first country in the world to enshrine the constitutional and aboriginal rights of its indigenous population, it also relinquished an opportunity to create a unique level of government for aboriginal peoples to serve as a model for constitutionally similar countries such as Australia and New Zealand.

How and why this breakdown occurred will remain the subject of numerous second-guessing in the months to come, but already the pieces are falling into place. I will attempt to cast light on the logic underlying the First Minister conference by looking at the participants, the issues, the results, and the implications in terms of revising aboriginal-government relations. The participants to this First Ministers conference convened in an effort to specify the nature and extent of those aboriginal rights pertaining to Native Indians as stipulated in the Constitution Act of 1982. Included were the Prime Minister representing the federal government, the premiers of the nine

provinces (Quebec did not attend in a formal capacity since it never agreed to the Constitution), and native and territorial leaders. Any constitutional amendment required the agreement of the federal government and seven of the provinces with at least 50% of the population. Native organizations consisted of the Assembly of First Nations representing status Indians (those under the jurisdiction of the Indian Act), the Inuit Committee on National Issues representing the Inuit, Native Counil of Canada representing non-status Indians and Metis, and Metis National Council representing the majority of Metis. Two top ranked officials from the United Nations also attended the proceedings as observers invited by native groups. The very breadth of representation provided some idea of the potential conflict of interests, and the complexity of the negotiations in forging a suitable compromise.

The issues at the core of the debate were relatively straightforward. What was more complex consisted of sorting out the underlying logic and rational that not only defined the often competing positions of the participants, but also influenced the course and direction of the proceedings. On the surface was a concern with spelling out the implications of section 35 (1) of the Constitution Act of 1982 which already had recognized and reaffirmed ‘existing aboriginal and treaty rights’. But section 35(1) did not specify exactly what

these aboriginal rights consisted of, or how they would be exercised particularly remaining silent over aboriginal self-governing the rights. Beneath the surface, however, lay more fundamental concerns related to aboriginal selfgovernment, including questions of power, jurisdiction, and costs. Much of the controversy centred about the extent to which the provinces were willing to compromise their constitutional right to self-rule in exchange for aboriginal claims to self-government. Equally significant was the issue of whether the details of self-government were to be politically defined by the courts ex post facto. To try and determine what unique rights Native Indians were entitled to under the Constitution’s aboriginally provisions, the Constitution made arrangements for a series of up to four First Minister conferences, this being the last.

If one critical issue could be singled out at the crux of the debate, it was the question of aboriginal self-governing ‘rights’ as interpreted by Constitutional experts. The debate focused on whether section 35(1) represented an ‘empty box’ clause which contained no specific rights until negotiated politically; or did it constitute a ‘full box’ of rights, as native spokespersons asserted, which needed only to be clarified by the First Ministers. Native lobbies argued that they possessed an inherent right to selfgovernment by virtue of their status as the ‘ancestral occupants’ of the land whose right to political sovereignty and land entitlement had never been extinguished either by treaty or conquest. The inclusion of section 35(1) merely reaffirmed for aboriginal groups what had already existed from ‘time immemorial’; namely, their status as a nation within a nation whose selfgoverning rights predated the Confederation. In opposition to this were the federal and provincial governments who countered with what might be termed a contingent rights approach to aboriginal self-government. Under this type of arrangement, Native Indians would be conferred the right to selfgovernment as set out in section 35(1) of the Act, but entrenchment of this right would be ‘contingent’ upon prior negotiations over details with the different levels of government. No proposal for self-government would be enshrined within the constitution that had not been politically negotiated beforehand or without the consent of the negotiating province. In other words, unlike native groups who proposed to entrench the principle of selfgovernment first and negotiate the specifics later, the provincial and feder-

al governments were prepared to negotiate the terms and powers of selfgovernment first, then constitutionally protect what had been specified. Why did Native and government spokespersons assume such diametrically opposed positions with respect to clarifying the ‘rights’ over aboriginal self-government? For native groups the entrenchment of an intrinsic right to self-government with no strings attached was crucial. They entered the conference promising to settle for nothing less than an unqualified right to self-government, and notwithstanding some wavering as the conference progressed, they retained a common front to the end. In the opinion of participating native organisations, prior entrenchment of aboriginal selfgoverning rights was indispensible in severing the bonds of dependency and underdevelopment engendered by the

provisions of the Indian Act. Yet verbal assurances by the government to negotiate in good faith could not be accepted in light of repeated acts of political expediency. Only with constitutional amendment and recourse to the courts to exert pressure on recalcitrant provinces could Native organizations be assured of meaningful political participation. They demanded as close to an iron-clad guarantee as possible, as to ensure that the right to selfgovernment was not lightly revoked or undermined by future government officials. Towards that end, Native groups refused to accept any process where the parameters of this self-governing right were contingent upon the threat of a provincial veto. Such a position was perceived as compromising their political leverage since it left little in the way of recourse to the courts should negoti-

ations falter. Opposed to this interpretation were the government sectors who generally disdained any form of self-government that bypassed political negotiation. Not that federal or provincial representatives were unsympathetic to aboriginal self-rule aspirations. On the contrary. Premier David Peterson spoke earnestly of the ‘sense of historical grievance that aboriginal peoples brought to the conference’. But he like others tempered this statement by acknowledging the ‘sense of caution that governments brought’ to the sessions. Financial and jurisdictions considerations provded to be major stumbling blocks. Most provinces hesitated over an unrestricted right to self-government for fear of incurring excessive costs and substantial cost-sharing with the federal government in areas such as welfare transfer payments. Also worrisome was the logics of implementing self-governing provisions. British Columbia was particularly adamant about any prior entrenchment of aboriginal selfgovernment. The province contains 197 bands (one third of all Canada’s), and 1,628 reserves (or 72% of the Canadian total). If the constitutional rights of native persons were guaranteed, Premier vander Zalm argued, the province would find itself in the daunting position of negotiating self-government agreements with each particular group. He warned of splitting the provinces into “three hundred and fifty small nations, where nobody would pay taxes, but would still claim the same privileges as other Canadians”.

The attorney-general for Ontario, Mr lan Scott, echoed British Columbia’s apprehension. According to Mr Scott, one of the fundamental problems was not of conferring the right to selfgovernment to Native Indians within geographic areas such as reserves. Rather, entrenchment problems were envisaged in areas where self-rule rights would be demanded by groups of ‘landless’ natives particular those dwelling in urban areas. Finally, the provinces could not bring themselves around to any amendment which transferred jurisdictional control over aboriginal government to the judiciary. They united against any constitutional agreement which could be used against the government by the courts whose decisions in the past veered toward a liberal interpretation of aboriginal rights. Provincial premiers disputed the right of judges to define the meaning of vaguely worded constitutional agreements over aboriginal self-government which had eluded elected politicians. Definitional matters could not be taken

lightly. To be sure the concept of selfgovernment represented a key component of aboriginal efforts towards selfdetermination, yet there was little consensus regarding its form or function. Even fixing a level of self-government within Canada’s existing tiers proved to be problematic, running the gamut from federal to provincial to municipal structures. Not surprisingly, despite Native assurances that entrenchment of self-government was intended as a progressive innovation to promote development rather than a plot to undermine existing powers, provincial authorities stayed clear of any proposal to open a pandora’s box of aboriginal self-governing rights.

In view of this conflict of interest between Native and government sectors over the issue of contingent versus inherent rights, the proceedings ground to a halt. As far as native groups were concerned, until the right to aboriginal self-government could be tested by the courts, it was not a right worth pursuing. By way of contrast was the government sector which rejected any prior entrenchment of aboriginal selfgovernment until jurisdiction details were settled. In an effort to break the log jam, the Prime Minister put forward a compromise solution based on conceding the principle of an explicit right to aboriginal self-government. This compromise proposal aimed at guaranteeing for native communities certain enforceable rights such as the power to negotiate over land bases, as well as the resources to institute legislative bodies with powers similar to municipal councils. At the same time the ‘explicit’ rights notion sought to protect federal and provincial governments from infringement upon existing powers and jurisdiction. Federal and provincial governments would be

shielded against court challenges by ‘irresponsible’ native groups intent on undermining already existing provincial laws to their advantage. Eliminated also by the compromise would be the fear of conferring upon the courts they were entitled to, at the risk of eroding provincial/federal power and resources.

Despite this last-ditch attempt at compromise, the conference did not attain its goals. Unlike the 1985 conference of First Ministers which managed to attain political if not native support, the provincial and federal governments failed to reach any consensus among themselves, let alone to present a coherent proposal for assessment before the native groups. British Columbia and Alberta opposed any effort to entrench an unfettered guarantee of selfgovernment within the constitution. Saskatchewan and Newfoundland voiced certain problems with the concept of entrenching an unqualified right and decided eventually to reject the compromise. Ontario and the remaining Maritime provinces appeared willing to make the necessary adjustments to reach a compromise, but only Manitoba among the provinces was prepared to accept an intrinsic right to aboriginal self-government without reservations.

It came as little surprise that no consensus was attained. Considering the politics of power at the core of the constitutional debate, nothing short of a miracle could have pulled out a solution. The conflict of interest proved to be insurmountable for, as Professors Menno Boldt and J Anthony Long from the University of Lethbridge pointed “The differences between what Indians demand and what the first ministers are prepared to concede was virtually irreconciliable.” On the surface, Native Indians appeared to be the losers in this

exchange, frustrated by the inability of the constitutional process to negotiate a self-governing agreement. The loss of the only regular avenue for bargaining with the nation’s top politicians did not sit well with many aboriginal spokespersons. But the situation is far from hopeless notwithstanding this temporary setback at the postconstitutional table. Alternate strategies and tactic are available. Native leaders have vowed to carry on the struggle to entrench the constitutional right to self-government even if this should entrail a reliance on either the courts or international forums. None other than Premier Peterson suggestion that in lieu of any ‘big solution’, there remains the possibility of ‘mini solutions’ whereby individual bands seek negotiating agreements with the provinces over land claims and the right to self-determination through Indian self-government. The creation of Nunavut (the merging Inuit homeland in the North) constitutes but one example where Native and government leaders are positioned to negotiate for mutually acceptable changes. But if future constitutional talks are to be proposed as a basis for delineating aboriginal self-governing structures, the First Ministers will need to reassess procedures and tactics. They must at minimum (a) clarify jurisdiction (who will pay for self-government, and who is responsible for metis and non-status Indians?); (b) institute a more generous approach to native land claims; (c) establish a new sensitivity to community self-government; and (d) institute more flexible funding arrangements than exist at present. Until these concessions are incorporated as part of the overall negotiating process, there is always the chance of alienating aboriginal peoples to the point where open confrontation is a possibility.

Canadian Native Peoples occupy the margins of society, and as a group tend to be under-represented in those socioeconomic domains where it counts. But the winds of change are now evident. After a century and a quarter of federal domination and bureaucratic control, Native leaders are proposing to decolonize the once paternalistic agenda underlying government-aboriginal relations in lieu of one consistent with the principles of aboriginality. Proclaiming a right to self-determination through the establishment of self-government, they are determined to proceed along these as yet uncharted grounds on the assumption that native solutions to the ‘lndian problem ’ cannot be any worse than what has preceded them.

A slightly revised version of this article appeared in the Kitchener-Waterloo Record on the 10th April, 1987, entitled, “Self-rule Impasse”.