Australian Indigenous Law Reporter
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Australian Indigenous Law Reporter |
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Commentary
Peter Jull[4]
School of Political Science and International Studies
University of Queensland, Brisbane, Q 4072
The purpose of this report is to outline briefly Indigenous peoples’ relationship with Canada’s formal political system and the dominant non-Indigenous political culture. It sketches the historical Indigenous–white relationship in Canada, and notes some major documents and decisions. It then illustrates recent post-1945 transformations through some of the most important Indigenous policy and political outcomes – the Northwest Territories’ recent political evolution; reform of Canada’s Constitution; creation of Nunavut; and the impact of active Indigenous internationalism. Finally the report moves to discussion and observations drawing in part on the Canadian national election of 2000; and ends with conclusions which are a de facto Executive Summary. The observations and conclusions reflect on all of Canada, a general summing up, while the four cases described are chosen for their richness in illustrating aspects of that generality — and for the author’s familiarity with them. The report attempts to contextualise instances of elections, political parties, and national political systems at work vis-à-vis Indigenous politics and peoples in order to show how Canada’s process-oriented and steadily evolving national and Indigenous political cultures shape and are shaped by these.
In this report I am not interested in the good intentions or official motives of the general public or white-run governments. Those were well known and well publicised at the time, and were usually the sole Indigenous news source for Canadians until the native movement found voice and gained media access in the 1970s. Rather, I am interested in outcomes or perceptions of non-Indigenous actions and policies on Indigenous politics; in ways with which Indigenous peoples engaged the White Man’s political order in response; and in new political interactions and structures resulting. In Russia, for instance, some of the Czars had endless good ideas and happy thoughts about how to better the lives of Indigenous Siberians, but these had almost no impact ‘on the ground’ except, frequently, results opposite to their intent. In Canada some officials and former officials have been unable to distinguish between noble motives in one place and culture, and flawed outcomes reported from another, despite the fact that they are clearly two separate (and sometimes almost unrelated) situations, and despite deeply different subjectivities in play in each.
Canada was visited from c AD1000 by Norse based in Greenland, according to saga evidence.[5] In 1497 the era of persistent European contact began with the voyage of John Cabot for England, followed in 1534 by Jacques Cartier for France. Permanent European settlement began with the French brought by Champlain from the early 1600s. Whites, indigenous, and mixed-blood or métis peoples lived side by side and co-operated well enough until c 1815. Then the era of indigenous peoples as fur trade producers and wartime allies ended and they became a nuisance in the path of settlement, land-hungry, and development interests. The next 150 years were grim and indigenous people today are still overburdened with the scars and ills of that time. However, World War II brought forces and factors which would soon break that 150 year era.
The Depression, World War II and the Cold War laid foundations for a new indigenous–white relationship in Canada. The war similarly had large impacts in indigenous Australia, Greenland, Alaska, Sápmi,[6] European Russia, and Siberia. Confident materialism became the answer to human ills, an extension of gung-ho wartime spirit. The long postwar economic boom and public shame at racial disadvantage combined to fuel Indigenous and hinterland policy in the national government. Education was most important, giving greater numbers of indigenous persons means to deal more confidently with the white man’s culture, myths, and society — and showing that practice in white relations with Métis, Inuit, and Indian First Nations was far short of stated Canadian ideals.
The north became an important new myth. Its great expanse — made greater by Mercator projection maps in schools and offices — was an emptiness where national energy and purpose would create technical marvels and population centres, rather like the Americans were imagining for the Moon and Mars. These visions were notable in two ways: they were material achievements, and there was too little thought given to the Inuit, Indian nations, and Métis who lived there. In one memorable Federal Government film, The North Has Changed, c 1967, we begin with an indigenous hunter in skin boat silently crossing a northern lake when an explosion ends the scene and fast-paced music brings us to noisy construction and extraction sites.
Dynamiting the Native North was how many indigenous people saw (or experienced) the policy of that era. With bumptious ignorance and innocence Canadians’ national Government poured money into the two northern territories and Arctic Québec. After 1960 nationalist governments in Québec rejected and replaced Federal roles in Arctic Québec, while in the Northwest Territories (NWT) and Yukon indigenous political movements targeted social discrimination, political disadvantage, and environmental damage. (See below.)
Non-indigenous people knew that indigenous conditions nationwide were bad but had little idea of precisely what to do, or how to do it. However, they were sure that Ottawa should do something! When the Government of Canada’s 1969 white paper on Indian policy had the opposite effect of its intention — uniting indigenous people from coast to coast behind a rights agenda and against perceived assimilation — this seemed more urgent. Meanwhile, the Supreme Court of Canada has revalidated equal relations in decisions on two 1760 treaties, Sioui[7] and Marshall[8]. But the depth of public ignorance had been revealed when ‘mainstream’[9] Southern media took a long term interest during the 1975–77 Berger inquiry into a proposed Mackenzie Valley gas pipeline to carry Arctic Ocean gas through Inuvialuit (Western Arctic Inuit) and Dene territories to southern Canada and the USA. News reports were often baffling, raising more questions than they answered for those who knew the north. But the Berger inquiry became a national ‘teach-in’ and a turning point in national consciousness. Most importantly it introduced many northern indigenous voices and their needs to the Canadian public.
From 1945 the themes of colonising history, politics, and identity were confronted anew when the pragmatic materialism and equality ideals of Depression and war-weary Canada turned northwards. The experience of the Northwest Territories (NWT) has been both an illustration and an epicentre of indigenous political change.[10] It reveals contradictions and confusion in Canadian political culture, but also an ability to respond creatively. With political determination a small number of isolated, mostly illiterate, and scattered hunter–gatherers won great victories and rewrote the script of indigenous–white relations.[11]
The NWT was 34 per cent of Canada’s land area until Nunavut’s creation in 1999. The 1996 NWT population (including Nunavut) was merely 64,402 out of Canada’s total 28.8 million. With the census taken in summer the northern total and the proportion of non-indigenous people is swollen by skilled tradespeople and other visitors. Inuit, Dene, and Métis comprised an indigenous majority. The NWT was ‘left over’ from earlier nation-building processes. With Nunavut withdrawn the rump NWT is estimated now to have a small majority of non-indigenous people.
At the end of the 1960s a recognisable and articulate native movement in the north appeared. A white action research specialist who had worked in the Mackenzie Delta became an Ottawa official helping to achieve core funding for indigenous political associations across the north and across Canada.[12] In retrospect core funding by which indigenous groups received predictable multi-year funding may have been Canada’s key reform. It enabled indigenous representatives across Canada to work full time articulating their peoples’ needs and seeking better policies and a remedy to injustices. It was approved by Prime Minister Trudeau and Cabinet because it provided the voice in government affairs which the small numbers of indigenous peoples could not achieve through election of sympathetic spokespersons or their own representatives in Parliament. Ottawa’s Citizenship Branch argued that the north was part of Canada, and that indigenous peoples everywhere were Canadians, too, and for both reasons deserved opportunities to work for the improvement of their communities which were largely unrepresented in the mainstream political system.
The first such NWT organisation, the Committee for Original Peoples Entitlement (COPE) in the Mackenzie Delta, hoped to unite Inuit, Dene and Métis, but Ottawa decided to fund separate Indian First Nations, Métis (and non-status Indians), and Inuit bodies in each province and territory. COPE became a regional organisation for Inuit and in 1984 achieved a Western Arctic land claims settlement — with work still proceeding today on regional and local government structures. An Indian Brotherhood later to be renamed the Dene Nation, and a Métis Association, were formed in Denendeh, while the Inuit regions outside COPE’s area would later become Nunavut with three regional organisations under a national Inuit association, Inuit Tapirisat of Canada (ITC). ITC also included Labrador and Quebec Inuit, but its focus was Nunavut. Through creation of special subsidiary bodies it negotiated Nunavut claims and self-government from 1976 to 1993.
The differences between Denendeh and Nunavut were many. Denendeh bore the full brunt of the white man’s settlement, resource development, and construction projects. Already in the early 1960s the Federal Government in Ottawa decided with bipartisan support to split Denendeh from the Inuit areas of the east. The Inuit and their region were slow to develop, it was said, and it would be better to allow the Mackenzie region of Denendeh to move ahead faster.[13] There was even a coat of arms drawn up for a new Inuit territory, ‘Nunassiaq’, but the whole idea was dropped, partly because Inuit had not been consulted. (When Inuit themselves later proposed Nunavut within similar boundaries to ‘Nunassiaq’, however, this was seen as dangerous separatism by many white officials.) Dene, Inuit and Métis were in broad agreement on the need for land claims settlements, greater environmental control of resources and other development projects threatening their livelihoods and food species’ habitats, and indigenous self-government. They also agreed on the failure of first Federal and, after 1967, the Northwest Territories governments to design and implement cultural, social, and environmental programs appropriate to indigenous peoples.
On the one hand the white man was pouring money and improvements into the NWT for indigenous benefit, but indigenous people generally felt disoriented by and sceptical towards so much change. Furthermore, white workers and their families moving in from the South seemed to get the greatest benefit. The scattered camps and seasonal movements of Indigenous peoples were largely replaced by unhappy new settlements where indigenous people were living in little houses in rows watched over by young white administrators with all power over their lives. With population now concentrated, any hunting had to be within reach so areas near villages were quickly over-hunted, leaving older people with little familiar activity or meaning in their lives.
The NWT was imagined by the best minds and hearts in Ottawa as a model region which, unlike the disastrous experience of the slaughter of the buffalo (that is, bison) and marginalisation on reserves of prairie indigenous peoples, would see indigenous people as well as whites sharing new communities and jobs in a mineral resources boom. The north would be happy, prosperous, and multiracial. There were also dreams of high-tech solutions, including a bubble dome over Frobisher Bay (Martin Frobisher’s locale which has now become Iqaluit, the Nunavut capital) under which even palm trees might grow! Something successfully multiracial has now happened, but rather differently, and with different assumptions. For one thing indigenous peoples are not an undifferentiated mass of backwardness, but a patchwork of peoples and cultures across the NWT, each with its own language or dialect, and unique traditions, and aspirations. Furthermore, white ideas about ‘northern development’ have not been superior. Material visions — building up, digging out, blasting through — came to seem mindless vandalism, and social intentions to seem paternalistic. Indigenous northerners hired white experts and lawyers to get those messages through to environmental panels, courts, parliaments, and ministers. In the process they highlighted their own knowledge of Arctic and sub-Arctic ecosystems.
While the Federal Government and its creation, the NWT Government, wanted to overlook differences among people and ignore legislation like the Indian Act 1985 in search of a new equality, indigenous peoples saw such measures as the bare minimum recognition of their status and native rights. They fought hard to keep such recognition and, far from supporting assimilation, they wanted rather to build new political structures supporting and enhancing their languages and cultures.
In the mid-1960s the Federal Government moved to strengthen its Indigenous political vision. For the first time there would be elections in what is now Nunavut for three Arctic seats newly created in the NWT Council. (The Council was made up of both appointed and elected members, the former being often more socially progressive.) However, few Inuit understood what was at stake and in two of the new seats whites fluent in the Inuit language were elected without anyone else running against them. Both turned out to be excellent and articulate representatives — one was world renowned scholar and author on Inuit and circumpolar studies, RG Williamson. The third seat was won by Simonie Michael, an Inuk of Iqaluit. Among the appointed members were also one Inuk and one Dene.
Ottawa had appointed a commission to recommend future political structures and programs for the NWT. This Carrothers Report[14] was a landmark. Devoted to finding ways to ensure that indigenous peoples were not marginalised in politics or society, it cleared the way for creation of a full NWT Government rather than the two field administrations for Denendeh in Fort Smith and for Nunavut (and Arctic Quebec) in Ottawa. The Northern Affairs Branch in Ottawa would be scaled back and most jobs moved to the new capital, Yellowknife. The report’s economic development proposals were ignored. However, the call for fully elaborated local councils and local government to be the centrepiece of indigenous social and political development was heeded. Indeed, the huge commitment of Ottawa and Yellowknife in funds, new buildings, and personnel was astounding. The new bodies, each with a meeting hall, offices, and a strange new coat of arms (usually displaying Arctic wildlife in biologically impossible or improbable poses) provided places for Inuit, Dene and Métis to master new skills. However, when they realised that they were only going to be allowed to practise limited decision making for needs they had never worried about, for example street lamps, disillusionment set in. The immediate result was a more general turning to land rights and self-government, that is, to the native movement, to achieve political goals.
From 1968 the frontier resources frenzy in Canada saw tremendous pressure by government and industry to explore, develop, ship and market NWT oil, gas and minerals. Indigenous peoples worked through their core funded political associations as well as the courts, Southern Canada media, national church groups, and other bodies to oppose development of their territories until Indigenous land ownership was settled and proper environmental safeguards put in place. This was a radical agenda from a radical extra-parliamentary group to most Canadians. It became much less radical and much more threatening in 1973 when the Supreme Court of Canada found in Calder that indigenous native title rights existed in principle in all parts of Canada.[15] (Much of Canada’s indigenous rights experience is found readably contextualised in Tennant 1990.[16]) A successful 1970s question of aboriginal rights in the NWT courts, Re Paulette,[17] was an immense stimulus to Dene and Métis determination, undermining Indian Treaty 11, albeit a finding struck down on appeal.
In 1968, too, another milestone occurred. Pierre Trudeau, who had newly succeeded Lester Pearson as Liberal Prime Minister, called an election and visited Yellowknife during the campaign. Trudeau spoke in a packed school hall where only about two indigenous persons — an Indian chief on stage and a Métis government clerk in the audience — were present. While Northern affairs minister Laing gave his usual resource development speech, Trudeau said that his northern priority was social policy. In answer to a question he said that he was prepared to negotiate new NWT constitutional arrangements. Any comfort whites had from the hope of more power in the NWT was more than mitigated by his social policy commitment, a term well understood as code for indigenous interests and aspirations. Trudeau’s candidate won the seat. For once northerners had been able to vote on northern policy.
The 1970s were a time of anger and dispute in the NWT. There was a breakdown of indigenous–white relations at the very time when many young Dene, Inuit and Métis were coming out of school with mainstream skills. The new NWT Government was under firm control by an Ottawa-appointed Commissioner, Stu Hodgson, a big man for a big job. Slowly but steadily during the decade more power was shared with members of the elected NWT Council (which optimistically renamed itself NWT Legislative Assembly). The NWT Government did not acknowledge the indigenous political associations, and they in turn regarded the Government as the unacceptable and authoritarian face of the white man’s colonialism. There were a few Indigenous persons elected, but most indigenous leaders called for a boycott of the Legislative Assembly. Ottawa was moving imperceptibly towards a position where it would require, in effect, the agreement of both indigenous organisations and the elected assembly on constitutional and rights issues.
But a Federal election in 1972 brought an omen of the future, one from which indigenous peoples and their friends took heart. Despite the tight white hegemony in the NWT and its institutions, and the denial by those in power in Yellowknife of indigenous rights or cultural imperatives, an indigenous candidate won the Federal seat of NWT. More importantly, his campaign posters ignored his party label (NDP, or ‘labour’) and simply said ‘Our land, our man’ while his obviously indigenous face filled the rest of the poster, with ‘Vote Wally Firth’ at the bottom. It was a plain challenge to the white man’s political system, but one using the mainstream system and drawing the pan-indigenous vote regardless of conventional political labels. Firth, a popular but reclusive radio broadcaster from a well known Métis family, got votes from all peoples. Liberals and Conservatives who had always won the seat previously had to accept that a new social agenda and a challenge to white supremacy were emerging. Firth won again in the next election. (In recent times the seat has been comfortably held by a Dene woman, Ethel Blondin, a Federal Liberal cabinet minister.)
In the mid-1970s the Berger commission was set up by Ottawa to resolve a fundamental NWT conflict.[18] A pipeline to carry Beaufort Sea gas through Inuvialuit and Dene lands along the Mackenzie River to Southern Canada and US markets was opposed by indigenous peoples on environmental and social grounds, but eagerly sought by the NWT Government and white business people. This conflict, Judge Berger’s patient style, community meetings in rough cabins, the anger and wisdom of indigenous persons speaking through interpreters, and glib company representatives all provided a long running national drama. For the first time the national media were revealing the real north, the indigenous north. It was a place of many locales, of homely concerns of almost unknown peoples — a place unlike the ‘empty’ spaces which Canadians imagined. These hearings and public disputes became a turning point. The whole issue of hinterland development became a national political issue in which all Canadians were involved. Literally it was such an issue, one for resolution by legislation of the national Parliament. It became a vessel into which environmental and progressive social interests poured their idealism. Canadians now found themselves having to choose between a powerful arrogant system acting in their name to make money out of further disadvantage to some very poor indigenous people, and, the environmental needs (and daily livelihoods), cultures, and society of those people. The Trudeau Government was not so unwise as to overlook Berger’s eloquent recommendations. Berger’s report quickly became an international classic on indigenous–white relations.[19]
But now the NWT whites and government felt bypassed and mistreated, and threatened to organise a public inquiry on constitutional progress as recommended by Carrothers for the 10 year anniversary of his commission’s work. Ottawa, anxious to avoid further inflaming race relations, decided to appoint a special representative, senior former cabinet minister Bud Drury. Drury’s preference for discreet private consultations was understandable as an Establishment figure but out of keeping with the times and with the mistrust of northern indigenous leaders who boycotted his work. Nevertheless, when his report was released in early 1980, delayed by a national political crisis, the fall of the Clark Government, and an election, its quiet but damning criticism of the operations and style of the NWT Government was all an indigenous rights advocate could ask.[20] In preceding months other things had happened, too.
1979 was a very big year in NWT history. Commissioner Hodgson, a man now too large and too unashamedly pro-development for the quiet transition to democratic rule, was replaced by his more discreet deputy. Indigenous leaders now decided that the time had come to take control of events though the legislature and several ran for election. There was much speculation about what Drury and Ottawa might be proposing, a process not helped when a Yellowknife newspaper printed parts of a report by this author.[21] The report may have seemed provocative to the NWT white establishment but merely reflected the reality that Dene, Inuit and Métis were the overwhelming majority of permanent NWT residents and that the political institutions and political economy must reflect and address their needs first and foremost.
An unhelpful event nearby created indigenous uncertainty. The longtime Yukon MP, and now a minister in the short-lived Clark Conservative Government in Ottawa, propelled his Prime Minister into prematurely transferring power to the extremely indigenous-unfriendly Yukon Territory Government. Yukon Indians (including Métis) had been negotiating land claims quietly for years and the Commissioner there was seen as a balancing force to help make sure the indians were not steamrollered by aggressive pro-development whites. The transfer set off alarm bells across all indigenous Canada, especially the NWT, as people wondered what policies the Clark Government might reveal next. In fact Clark backtracked quickly and meetings were held to reassure Indians and restart negotiations. However, this brief episode, albeit typical of new and inexperienced governments everywhere, was one of several faux pas by the Clark Government in 1979 leading to its defeat in Parliament and defeat in the elections following in early 1980. It created a very negative image of Clark in indigenous eyes — sad because the man was (and presumably is, being national Tory leader again today) genuinely sensitive and committed on indigenous issues.
Meanwhile, the great 1979 breakthrough after the change of NWT Commissioner was the territorial election. Older redneck whites were replaced by younger better educated whites with no racial anxieties, persons happy to accept indigenous rights and to work with indigenous people. Also elected were a number of well known indigenous leaders — Métis, Dene and Inuit. Most extraordinary was the newly elected members’ first act. They convened quickly in a short special session to repudiate the constitutional and indigenous rights positions of their predecessors and they established a ‘unity committee’ to report on the future of the NWT. The main finding of the report delivered in 1980 was that territorial unity and the existing NWT Government were neither natural nor acceptable to indigenous peoples, and that the existing NWT structures were seen as merely an ‘interim arrangement’.[22] As in the Drury report, ‘Banquo’s ghost’ who insisted on disrupting the party was Nunavut. The NWT future hinged on the future of Nunavut and what Inuit would do. As subsequent events would show, Inuit commitment was clear and persistent.
The question for the future NWT constitution now was not if change but how and when to achieve it. Inuit were determined to have Nunavut, and even the Drury report, which had botched the question, was unable to reject it entirely. In April 1982 an NWT-wide referendum was held on whether or not to create Nunavut. Ottawa panicked and said it would not respect the outcome.[23] In the 1982 referendum many in Denendeh did not bother to vote. In Nunavut, however, not only did Inuit vote in record numbers, but they voted 4–1 for Nunavut. This was too clear a signal even for a timid Ottawa. Creation of Nunavut became both NWT and Federal Government policy. Luckily, the Inuit also had a reasonable majority in the NWT-wide vote so they had ‘won’ the referendum in every sense.
Denendeh was where the bigger problems were. Not only were the several Dene nations — for example, Dogrib, Deh Cho (also known as Slavey), Gwichin, Sahtu, Chipewyan — of differing views, but the Inuvialuit (Inuit of the Western Arctic) and white towns had decidedly different agendas. Since the 1982 vote, just as in the years before, the Dene would try to lead or at least manage successive constitutional development exercises in Denendeh, but they were unable to win sufficient support from others to carry arguments to conclusion. They also had their preliminary land claims agreement fall apart amid recriminations. But the whites overplayed their hand. Having resisted many Dene proposals for years, they found themselves now faced with Inuvialuit and Dene regions, each with its own land claims settlement and regional government structure agreed or under negotiation. This would decentralise NWT governance to such an extent that some doubted that the NWT Government would have a serious role. The NWT might become a sort of confederation. Meanwhile, today it is enjoying its 6th or 7th indigenous Premier.
The NWT narrative will move to Nunavut, below. However, the NWT story is common to many countries in its basic dynamics. A national government ambivalently or alternately favouring environmental and indigenous values on the one hand, and national development and resource extraction projects on the other, is faced with noisy classical liberalism from settlers who wish to control hinterland politics through their command of, or familiarity with, the national political system. Indigenous rights and imperatives are initially dismissed as backward or racist. However, the truculence of settler bodies and leaders repels national authorities and national opinion, while the skill or pathos of indigenous peoples attracts growing sympathy. Solutions lie in changing conventional systems or adding new elements to them, for example, Sami parliaments or national indigenous rights guarantees in law.
The Constitution has been central to Canada’s political debates since the mid-1960s.[24] In some ways this assisted indigenous peoples by opening up the fundamental law for reform and in increasing public awareness of Federal principles. That is, Canada has two distinct levels of government, Federal and provincial, each with its own sovereign power and each protected by the Constitution and the Supreme Court of Canada from interference by the other level. Ottawa cannot simply intervene in matters for which provinces have jurisdiction (for example, lands and resources), and provinces cannot interfere in Federal matters (for example, criminal law, Indian and Inuit rights). Persons unfamiliar with Federal states find this structure difficult to understand. It is also difficult for Canadians and their governments because disentangling jurisdiction in, for example, water, can be virtually impossible.[25] Ottawa cannot override provincial governments at will. However, some important matters have not been tested. It is believed that Ottawa could not make land claims settlements without provincial co-operation as these involve matters that are either under provincial jurisdiction or relate closely to provincial responsibilities, for example, forestry management.
Federalism complicates many issues. Canadian anxiety since the early 1960s about ‘Quebec separatism’ — that is, the possibility that Quebec would secede and break up Canada — has made governments and public fearful about indigenous claims and agendas as another fragmenting force.[26] A further threat has been ‘Western alienation’ — that is, resentment in Manitoba, Saskatchewan, Alberta and British Columbia, the provinces with the highest proportions of indigenous people,[27] against Ottawa, some national policies, and the political dominance of the great central provinces of Ontario and Quebec. Western provincial politics have been polarised between the NDP (New Democratic Party, the labour party) and various Right parties. However, it is not always easy to make generalisations about party politics in Canada. The Conservatives (‘Tories’) nationally have strong ‘Red Tory’ elements with progressive social outlooks overlapping with NDP and Liberal views at national level,[28] Saskatchewan voters may elect the NDP provincially but Conservative or even more conservative members to Federal Parliament in Ottawa; and Quebec has often elected gradualist separatist Parti Québecois governments provincially but sent staunch federalist Liberals to Ottawa. In Canada the provincial Premiers are usually the real opposition to the Federal Government. Provincial agendas vis-à-vis Ottawa have much continuity despite changes of provincial governing party. Because Canadian parties are not vertically integrated, for example, provincial Liberals in British Columbia have indigenous policies very different from the national Liberal Government, political provincialism is deepened. Recently the Reform party, now recreated as the Canadian Alliance, has been a more visible and audible Opposition in Ottawa because of its populist Right positions on social and cultural (including indigenous) issues.
Indian nations had long realised that constitutional recognition and constitutional change were both necessary for their security. They rejected the official Ottawa view that the Federal Indian Act 1985 gave them what rights they had. They believed that their rights existed prior to the white man’s settlement and governance in North America, and that governments today should recognise them. However, Ottawa’s full power in indigenous affairs in the 1867 Constitution was the essential protection for Indians and Inuit from provincial governments, that is, protection from provincial land and resource powers. (Australia embodies the grim results of sub-national governments combining land powers and control of indigenous matters, that is, a history of racial violence and black marginalisation creating a contemporary socio–economic morass.)[29] Inuit, Dene and other northern peoples have also been anxious that their rights and future be secured against provinces seeking to extend their boundaries northwards as happened earlier in the 20th century. After indigenous people achieved northern territorial government reform (see NWT section above), they and northern whites were anxious to have guarantees that those territorial governments and territories not be diminished.
Indigenous Yukon and NWT peoples, like those in Northern Quebec, had been negotiating de facto constitutional change through land claims agreements or treaties. It was not called ‘constitutional’, but it was that all the same. New governments and political institutions were being created, and the powers and roles of existing territorial governments were changing. (British Columbia’s new Nisga’a treaty[30] is being challenged in court because it is said to represent constitutional change and therefore requires special scrutiny under British Columbian law. Strictly speaking, it is like the northern claims settlements; that is, possible in principle under Canada’s Constitution from 1763. Whether or not these treaties are constitutional changes per se, in practice they are something new.)[31]
After failed attempts to agree on national constitutional changes, Prime Minister Trudeau invited Indians, Inuit, and Métis to join Ottawa and the provinces in yet another attempt in mid-1978.[32] If recognition of various rights could be negotiated, the result could be enshrined in a new Constitution. In February 1979 this was broadened by Trudeau and Ontario Tory Premier Davis who set the pace for the other Premiers in a small in camera meeting (which had broken off from a televised heads of government conference) to a broader invitation to indigenous leaders to meet with government leaders face to face to discuss constitutional issues. ‘Red Tory’ Joe Clark continued this initiative after he defeated Trudeau’s Government in May 1979. In September 1979 Clark met with Canada’s national and regional Indian leaders and promised that face to face federal–provincial–indigenous meetings would be a forum for discussion of many items, not simply one new item squeezed into Canada’s already long list of constitutional issues. In December 1979 a committee of Federal and provincial constitutional ministers met with indigenous leaders in a preliminary discussion, one in which Inuit leader Charlie Watt enumerated subjects of likely interest. The Federal Minister warned that there would be many practical problems in future meetings because indigenous and government people had very different ideas and experience of law and of Canadian history, and different concepts of constitutional matters, but that if everyone tried to be patient and tolerant successful outcomes could be achieved. This would prove prophetic. But also in December the Clark minority Government’s Budget was defeated in Parliament and elections were called. Trudeau was persuaded not to leave politics and he returned as Prime Minister early in 1980.
It must be remembered of these constitutional developments — and those in the NWT and Nunavut — that all this was happening against a background of major constitutional dispute between Ottawa and Quebec about the future of Canada. There was also dispute between Ottawa and Western provinces wanting more power and recognition for their growing population and dynamic society, and between Ottawa and all provinces on several niggling issues. Trudeau, meanwhile, was determined to entrench a constitutional Charter of Rights, including French language rights, and to secure a constitutional amending formula so that Canada did not have to ask the British Parliament to rubberstamp constitutional changes, while some Premiers and public opinion opposed such changes. Trudeau wanted a package of ‘patriation’ reforms. Not repatriation, because the Constitution had always been a British law and now it would come to Canada for the first time (although its details had been worked out in the 1860s by Canada’s legendary founding Prime Minister, Sir John A Macdonald, and other Canadian politicians). Any changes, however, would have to pass through the British parliament for one last time. In the 1979–81 period, not only were Quebec politicians lobbying in London against Trudeau’s proposals, which they feared would inhibit their future exercise of power, but Indian and some Métis leaders were a frequent presence in London attracting publicity to their socio–economic and constitutional needs and demands at home. Inuit took out a half-page ad in The Times in December 1980, putting their case to the British Parliament, carefully written to pressure but not enrage Trudeau or his justice minister, Jean Chrétien. (Within 48 hours a senior Federal minister came to the Inuit to discuss possible constitutional agreements.)
When Trudeau returned to power in early 1980, provinces which had opposed him in early 1979 were now facing a new situation. He withdrew his conciliatory 1979 offers to them. But first there was a Quebec referendum on independence or ‘sovereignty-association’ in June 1980. Successive Quebec premiers have blurred the question in these referenda so that they can claim to be separatist and not separatist at the same time, thereby appealing to more voters — a practice which has now led Prime Minister Chrétien to legislate a Clarity Act 2000 to force a clear referendum choice. Trudeau made several speeches in 1980 before this first referendum, and even referred positively to the ‘Inuit nation’, despite the fact that Inuit themselves do not use this term. In late April he made a major pre-referendum speech to Canada’s indigenous leaders. In particular, he wanted Quebec’s indigenous peoples to vote in large numbers, despite the fact that they would normally be busy ‘out on the land’, that is, away from their villages, with the spring goose hunt. Inuit and many Indians in Quebec are strongly pro-federal and oppose Quebec independence, so their votes could be important. In this speech Trudeau changed the constitutional outlook for indigenous peoples by explicitly accepting their preferred agenda topics rather than the usual white man’s categories. Ottawa would support constitutional discussion between governments and indigenous peoples on indigenous self-government within Canada, ‘aboriginal rights’ (the first time that term had been used at a high level by the Canadian government), treaty rights, indigenous political representation (for example, in Parliament), and the actual needs and delivery of government programs by all levels of government to indigenous peoples. Trudeau and Clark had earlier agreed to provide constitutional funding to enable indigenous peoples to hold consultations, hire experts, and prepare their case.
In mid-1980 Trudeau pressed the provinces to work on the patriation package, a long hot constitutional summer, leaving aside indigenous peoples who were supposedly not affected. However, indigenous peoples feared that any changes which strengthened the provinces or changed the rules for constitutional amendment would pre-empt their hopes for rights recognition. They lobbied in London to publicise their case. A special parliamentary constitutional committee was set up in Ottawa to consider elements of the patriation package. The Tories insisted that its proceedings be televised. To the amazement of many, Canadians took a strong interest in this unlikely TV show and especially in the discussion of rights. Because they watched American TV police dramas, Canadians blandly assumed that they had the same enumerated rights as Americans. They did not. As this was revealed, a strong public sentiment for constitutional rights grew — despite some traditionalist premiers and élites arguing that elected legislatures, not appointed judges interpreting constitutional law, should determine rights as the need arose. The reply was that entrenched rights are needed precisely to protect people who may be unfashionable and unable to win legislative support. Indigenous groups performed impressively, although some hardline leaders lost their cause support. The best of all, the group who made Canada sit up and take notice, were the Japanese–Canadians. In World War II they had been persecuted and then forced into prison camps in the Rocky Mountains, their property and business assets confiscated. Canadians were shocked that such things ‘could happen in our country’.
This was a turning point in Canadian constitutional politics. No longer was the Constitution a matter for a few older males in dark suits to discuss and decide behind closed doors, but now it was a truly popular (of the people) issue. The public and various lobby groups demanded and won many changes. For indigenous peoples the big day was Friday 30 January 1981. Justice minister Chrétien arrived at the parliamentary committee hearings from hospital looking like a corpse. Before long he was fresh and happy because the Inuit promised him their support and there was likely Métis and Indian support for the patriation package in return for several clauses they sought. At the time the package was in deep political trouble across Canada so the support of aggrieved indigenous peoples would be very significant. The Inuit delegation, led by Mark R Gordon, sought the recognition of ‘aboriginal rights’ (a Canadian term including native title rights), explicit recognition of the contents of the Royal Proclamation of 1763, the specific recognition of Inuit and Métis no less than Indians, and a constitutional commitment to hold face to face indigenous constitutional conferences with heads of government. Chrétien wanted to leave out the last clause, such an apparently procedural detail seeming almost bizarre, but Inuit insisted. At day’s end the national TV news showed Chrétien sitting with the three national indigenous leaders whom he graciously called ‘my advisors’, announcing the most positive changes in Canadian Indigenous policy since the War of 1812.
In following days and months some indigenous leaders complained that the January 30 amendments were too little, while others said that any amendments were bad and might diminish indigenous rights by their implicit recognition of Canadian governments and sovereignty. They campaigned against the amendments. This gave provincial and Federal governments the excuse which some wanted: in November 1981 they met to finalise the ‘patriation package’ and threw out the indigenous amendments. Suddenly, some of the most vocal indigenous opponents of the January amendments were now shouting on air about betrayal. The following three weeks were extraordinary.[33] Many indigenous leaders gathered in Ottawa and others in provincial capitals. They held press conferences, had demonstrations in the streets, lobbied anyone and everyone they could find in governments, held strategy meetings, and travelled from coast to coast whipping up support. Except for the one day following the Federal Budget, they kept the issue of their betrayal as a main item on front pages of the press and TV news. Indigenous leaders had little money and no high powered professional support but they had a just cause. Canadians responded to their claim that the white man had betrayed them yet again. A new Premier, Howard Pawley, elected in Manitoba, announced that his government would support the indigenous clauses. Then the other governments fell into line, and with the addition of the word ‘existing’ to qualify ‘aboriginal rights’ (and to save face for the hardline Alberta Premier), the indigenous clauses were restored. When the Supreme Court of Canada at last interpreted this s 35 of the new Constitution in Sparrow,[34] 1990, the word ‘existing’ was really no obstacle at all.
The Constitution Act 1982 includes Pt I, Canadian Charter of Rights and Freedoms, and then Pt II, Rights of the Aboriginal Peoples of Canada. Part II says, inter alia:
35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
Then the Métis were included, and Inuit[35] were specified in 35(2):
In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada.
It then specifies in s 35(3) inter alia that “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired’, an important protection for Indigenous claims agreements yet to be negotiated. Part IV, Constitutional Conferences, consists of s 37 specifying Indigenous-government constitutional conferences.
One longer-term consequence of these 1981/82 amendments took Canadians by surprise in the Powley[36] judgment of February 2001, 20 years after Inuk leader Mark R Gordon fought in that January committee room to have Métis included in the definition of ‘aboriginal peoples’.
In early 2001 in Powley, a moose hunting case, the Ontario Court of Appeal found that Métis near Sault Sainte Marie had rights as a people, Sharpe J writing that:
I fail to see how a bald promise that has not been acted on can justify limiting a constitutional right. As I have already noted, efforts to negotiate an agreement have been sporadic at best. I do not accept that uncertainty about identifying those entitled to assert Métis rights can be accepted as a justification for denying the right. The appellant [the Ontario government] has led no evidence to show that it has made a serious effort to deal with the question of Métis rights. The basic position of the government seems to have been simply to deny that these rights exist, absent a decision from the courts to the contrary. While I do not doubt that there has been considerable uncertainty about the nature and scope of Métis rights, this is hardly a reason to deny their existence. There is an element of uncertainty about most broadly worded constitutional rights. The government cannot simply sit on its hands and then defend its inaction because the nature of the right or the identity of the bearers of the right is uncertain. The appellant failed to satisfy the trial judge, the Superior Court judge on appeal, and has failed to satisfy me that it has made any serious effort to come to grips with the question of Métis hunting rights. [166]
And so in an instant, after so many decades of suffering, loss, and denial by those in authority, a whole people living from Atlantic to Pacific and nearly to the Arctic Ocean are recognised and validated. One may hope that governments rise to the occasion and opportunity presented by this judgment to address some of the worst and most widespread social disadvantage and injustice in Canada — that of mixed blood people, or people legally designated as mixed blood.
Throughout the land claims era it had been assumed in government that the Atlantic provinces were not subject to any legal ‘unfinished business’. So on 17 September 1999 there was considerable shock when the Supreme Court of Canada found in Marshall that a British treaty of 1760 in respect of indigenous fishing must be honoured. Writing for the majority Binnie J said, inter alia:
This appeal should be allowed because nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi’kmaq people to secure their peace and friendship, as best the content of those treaty promises can now be ascertained. If the law is prepared to supply the deficiencies of written contracts prepared by sophisticated parties and their legal advisors in order to produce a sensible result that accords with the intent of both parties, though unexpressed, the law cannot ask less of the honour and dignity of the Crown in its dealings with First Nations. An interpretation of events that turns a positive Mi’kmaq trade demand into a negative Mi’kmaq covenant is not consistent with the honour and integrity of the Crown.
Marshall built on the principles in Sioui which concerned an urgent ad hoc treaty in its purest military sense between the commander who had succeeded General Wolfe at the latter’s death on the battlefield of the Plains of Abraham with Indians nearby.
These and other leading court cases and other useful documents are now available online from the Courts who issued them and from various indigenous law sites.[37] The language, concepts, and principles of these tremendous cases have seemed almost biblical as Canadians and their governments have attempted to rethink and renegotiate the fundamental terms of human settlement and peaceful intercultural relations in North America. That so much is being achieved so painlessly, hysterical talkback radio hosts notwithstanding, is the remarkable fact.
Because Canada’s indigenous political renaissance owed little, initially, to formal political philosophies or the social sciences as has occurred in northern Europe and Australia, and because it occurred in the era of welfare state paternalism when indigenous people mostly dealt with rule bound and rule minded junior personnel in local offices for their official contacts, it lacked an appropriate or recognisable rhetoric.[38] Traumatised by the reaction to the 1969 white paper, the Federal Government for its part said as little as possible as elliptically as possible, fearing a repeat of Indian rage. And so some few phrases leaped out — ‘Canada’s two founding peoples’ (that is, French and British!), ‘the Dene Nation’, and at the first televised indigenous government conference Nisga’a chief Gosnell’s view of his people’s rights ‘lock, stock and barrel’ to their territories. The first was absurd, for which reason it helped the general public embrace Indians and Inuit as actual and obvious founding peoples; the second and third generated public confusion and anxiety. Thus, the white man’s high court responses became the dominant verbal, moral, and philosophical stream in Canada’s English-language culture with respect to indigenous peoples, while indigenous leaders became nationally known in the white man’s culture no less than in their own with their plain, clear, and often eloquent English. The two sides of this verbal continuum were worthy equals.[39] Canadians generally knew nothing of the debates within indigenous communities or in indigenous languages. Moses and the Promised Land were an image much used among Inuit seeking Nunavut, for example — a people who had thoroughly absorbed missionary Christianity.
In June 1982 indigenous teams met Prime Minister Trudeau in three separate meetings — Inuit, Indian, and Métis — to discuss the process for holding the indigenous government conferences now required by the Constitution. This process would turn into a multi-year series of televised First Ministers Conferences (FMCs) held in March or April in 1983, 1984, 1985 and 1987.[40] FMCs and executive federalism had long been the central feature of Canada’s political and policy culture. They have many uses in finding political consensus among players long familiar with each other and with the issues they discuss. They are élite rituals full of coded terms and little protocols. They were, therefore, highly improbable forums for indigenous persons to bring their anger, grievances, hopes, and demands in search of clear answers. Things are rarely clear in First Ministers Conferences. On the other hand, no other forum or process could signal so loudly the national importance of indigenous peoples and their concerns.
A First Ministers Conference is a high peak in a mountain range. It is preceded and followed by ministers’ meetings and high officials’ meetings, and much work goes on for a long period in preparation for all of these. The first serious meeting of Federal and provincial officials (that is, public servants, not politicians) with indigenous delegations in late 1982 was a breakthrough. Indigenous issues had previously been seen as a low order rural welfare matter carried out by low order government bureaux, but now the best and brightest of Federal, provincial, and territorial governments were assembled and ready to be involved. What these persons might lack in background knowledge or experience of indigenous issues they would make up in liberal outlooks and access to influence and expertise. The Indian leaders had decided to boycott the meeting and had only observers present, so the young Inuit leader Mark R Gordon was the principal Indigenous spokesperson. This was fortunate because he was articulate, incisive, amusing, and could present the most difficult issues and problems with ease across the cultural divide. The provinces were unconvinced about this whole Indigenous constitutional initiative, and about the possibilities of reasonable dealings with Indigenous leaders at all, but by the end of the first of the meeting’s two days Gordon had won them around on both counts.
Inuit sent a simple powerful message at the televised FMCs. At some point, an Inuk speaker or a TV crew would point to the booths for simultaneous interpreting in the chamber — English, French and Inuktitut. Across the northern third of Canada the language of daily use was neither English nor French, something few Canadians really understood.
The conference years were astounding with their high drama and low farce. The process was kept alive through the years by political accords which papered over stalemates and disagreement, providing opposed sides with more time to work through difficult issues and to keep talking to each other.[39] A fine video, Dancing Around the Table, shows the interplay of indigenous grass roots reality and high conference rhetoric.[40] The quality of governmental political leadership, vision and expertise was significantly greater at the beginning than at the end. The disappointment of the indigenous delegations was powerfully and passionately expressed in the final session of the last conference by Saskatchewan Métis leader Jim Sinclair. While Prime Minister Mulroney and the Premiers could not sign up to indigenous self-government because it was too vague, they said, the same men had no trouble signing up to truly vague constitutional recognition of Quebec’s unique status some weeks later at Meech Lake. (When the deadline for the Meech Agreement to become law was reached in 1990, a single Indian member of the Manitoba legislature used a procedural veto to kill the whole package.) The indigenous disappointment of 1987 was left by governments to fester for several years until indigenous anger erupted in mid-1990 at a small Mohawk reserve, Oka, at the mouth of the Ottawa River over a 290 year old land rights grievance. This fuelled activism and tension in several other locations. At Oka the deployment of the Canadian army and its tanks against a small community of Indians did very little for Canada’s image in the world, sharing TV news images with Saddam Hussein’s tanks in Kuwait. Fortunately, some of the Indians and some military personnel present saved Quebec and Ottawa political leaderships, saved themselves, and saved the country from bloody disaster.
The failure of these 1980s conferences was an opportunity missed but not a dead end.[41] They had highlighted the fact that indigenous peoples — unlike great cities, unions or business — could sit down with Prime Minister and Premiers to renegotiate the Constitution itself and the wider constitution of arrangements small and large which make up Canada. They had introduced non-indigenous Canadians to a plethora of new indigenous personalities, many of them charismatic and articulate, who made too familiar Premiers and ministers look rather pedestrian. The passion of their cause was a change from the bland circumlocutions of daily political talk.
Soon Prime Minister Mulroney had to open the door to a more intense round of indigenous work as part of the broad negotiated constitutional packages embodied in the Charlottetown Accord, 1992. Although that Accord was defeated in a national referendum, polling showed that the indigenous elements were relatively popular. (Mulroney also had to appoint a Royal Commission on Aboriginal Peoples, most of whose Commissioners were indigenous, to appease indigenous anger. So great was the distrust of Prime Minister Brian Mulroney, by this stage in his career known as ‘Lyin’ Brian’, that he entrusted the terms of reference for RCAP to former Chief Justice Dickson and then published the final version plus Dickson’s proposals so that we would all see that he had not made mischief with such important questions.)
But ultimately, little may have been lost despite the 1987 and 1992 failures. This is the hard fact: the processes of negotiation were part of a longer stream, and the evolving consensus and evolving indigenous political culture have been positive. The period of breakdown from the March 1987 FMC to Oka in July 1990 was the only interval for decades in which Canadian indigenous policy and constitutional accommodation were not progressing. When they resumed in 1990, they progressed more quickly. Trying to avoid constitutional conferences which Quebec might turn into a separation scenario, Canadian anglophone and some francophone politicians, and indigenous leaders, have been content to help move constitutional consensus along more quietly. Charlottetown would have made indigenous government a third order of government along with existing Federal and provincial governments, but this is occurring willy-nilly. Prime Minister Chrétien and the Federal Government have formally accepted an indigenous ‘inherent right to self-government’ since August 1995. Canada now has three sections of the public with very different senses of national identity — anglophone, francophone and indigenous — but sharing a common civic identity.[44]
Part 2 of ‘“Nations with whom we are connected” — Indigenous peoples and Canada’s political system’ will be published in the next issue of the AILR.
[1] King George III on the need to respect ‘the several Nations or Tribes of Indians with whom We are connected’, Royal Proclamation of 1763.
[2] An earlier draft of this paper with the same title appears abridged in Wessendorf K (ed) Challenging Politics: Indigenous Peoples’ Experiences with Political Parties and Elections IWGIA Copenhagen 2001 p 192. That book’s contents were commissioned as an international research project of the International Work Group for Indigenous Affairs (IWGIA), Copenhagen, funded by the European Union (EU). The entire draft of the paper with complete references, etc is available from AILR.
[3] This article is to be published in two parts: the first part appears here in (2001) 6(2) AILR; the second part is to appear in (2001) 6(3) AILR.
[4] Special acknowledgments for the writing of this report are due to Helena Kajlich with whom I discussed indigenous constitutional politics in Canada for 20 months while she wrote on the subject, and thanks also to several other students engaged on overlapping topics, Kathryn Bennett, Christie Groves, Erin O’Connor, Jodhi Rutherford, and Deborah Verco. Also I have been influenced by reading the fine new edition of Miller’s Indigenous–white relations history of Canada, Skyscrapers Hide the Heavens, and the work of Bjørklund, Brantenberg, and their collective centred at Tromsø Museum resulting in the wonderful words and images of the Sami politics exhibition catalogue, Sápmi – Becoming a Nation. Special thanks to Professor Emeritus Peter H Russell of the University of Toronto who kindly checked various key points and made helpful suggestions now incorporated, and Professor Rick Ponting of the University of Calgary for commentary on some recent events. Thanks also to Kathrin Wessendorf, my editor in Copenhagen, and Lucy Macmillan and Edwina MacDonald of AILR in Sydney.
[5] Gad F The History of Greenland, I, Earliest Times to 1700 (translated E Dupont) McGill Queen’s University Press Montreal 1971; Jones G The Norse Atlantic Saga (2nd ed) Oxford University Press New York 1986.
[6] Sápmi is the Sami (Lapp) term for the Sami homeland across northern Norway, Sweden, and Finland, and Russia’s Kola Peninsula.
[7] R v Sioui [1990] 1 SCR 456.
[8] R v Marshall [1999] 3 SCR 456.
[9] The mainstream is a much overused word in modern English, with more imagined locations and sources in the late 20th century than the Nile in Europe’s imagination in the 19th century.
[10] Jull P Political Development in the Northwest Territories Background Paper No 9, Government of Alberta Edmonton 1984; Cameron K and White G Northern Governments in Transition: Political and Constitutional Development in the Yukon, Nunavut and the Western Northwest Territories Institute for Research on Public Policy Montreal 1995.
[11] Jull P ‘Them eskimo mob: international implications of Nunavut’ (2nd ed) For Seven Generations: The Report of the Royal Commission on Aboriginal Peoples Public Works and Government Services (Publishing) Ottawa 1996, including Background Reports, CDROM; Jull P ‘Inuit and Nunavut: renewing the new world’ in Dahl J and Jull P (eds) Nunavut — Inuit regain control of the lands and their lives International Work Group for Indigenous Affairs Copenhagen 2000 p 118; Jull P ‘Resource management agreements with aboriginal communities in Canada: regional agreements’ in Fisher DE and McNamara N (eds) Integrated Water and Land Management: Essays on Comparative Approaches to the Integration of Water and Land Management Faculty of Law, Queensland University of Technology Brisbane p 453.
[12] Lumsden RP Background to Core Funding and the Development of the Indian Political Organisations (unpublished report) Carleton University Ottawa 1987.
[13] Robertson RG ‘History of modern north’ Memoirs of a Very Civil Servant: Mackenzie King to Pierre Trudeau University of Toronto Press Toronto 2000 p 107.
[14] Carrothers AWR et al Report of the Advisory Commission on the Development of Government in the Northwest Territories Department of Indian Affairs and Northern Development Ottawa 1966.
[15] That is, where such rights had not been extinguished by clear and plain law, such as treaties or Federal statutes, or by development which removed indigenous use in fact, like locating a city on former hunting land. Mabo v State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 and Wik Peoples v State of Queensland (1996) 187 CLR 1 in Australia are similar.
[16] Tennant PAboriginal Peoples and Politics:The Indian Land Question in British Columbia, 1849-1889University of British Columbia Press Vancouver 1990.
[17] Re Paulette et al and Registrar of Titles (No 21) (1974) 43 DLR (3rd) 8.
[18] Berger T Northern Frontier, Northern Homeland: the Report of the Mackenzie Valley Pipeline Inquiry Minister of Supply and Services Ottawa 1977.
[19] Berger above note 15.
[20] Drury CM Constitutional Development in the Northwest Territories Report of the Special Representative, Minister of Supply and Services Ottawa 1980.
[21] Jull P ‘The paper Ottawa didn’t want you to see’ Pt 1 and Pt 2 Political Development in the Northwest Territories Studies and Research Group, Privy Council Office/Federal–Provincial Relations Office Ottawa 1978, abridged in Northern News Report Yellowknife,
[20] September 1979 at 2 and 27 September 1979 at 7.
[22] MacQuarrie R Report of the Special Committee on Unity to the 3rd Session of the 9th Assembly at Frobisher Bay, October 22, 1980 Tabled Document No 16–80, Legislative Assembly of the Northwest Territories Yellowknife 1980; Jull P An Aboriginal Northern Territory: Creating Canada’s Nunavut Discussion Paper No 9, Australian National University North Australia Research Unit Darwin 1992.
[23] This is a good example of Ottawa’s long-time fearfulness of anything which could be seen as accepting principles of separatism and, therefore, feeding Quebec nationalism — whether support for indigenous rights at the UN or overdue changes at home. The mere name of the Dene Nation, when adopted in 1975, set off a frenzy in Ottawa, with one nervous minister publishing an attack poster in reply. The fact that King George III had no trouble with the word ‘nation’ for indigenous peoples 200 years earlier was apparently forgotten.
[24] Russell PH Constitutional Odyssey: Can Canadians Become a Sovereign People? (2nd ed) University of Toronto Press Toronto 1993; Robertson above note 13.
[25] The author represented his Federal Government office on the interdepartmental committee which oversaw drafting of the Canada Water Act.
[26] Russell P and Ryder B Ratifying a Postreferendum Agreement on Quebec Sovereignty Commentary No 97 CD Howe Institute Toronto 1997.
[27] However, much higher proportions of indigenous peoples are found in the Territories — Nunavut, NWT and the Yukon in descending order.
[28] Nevitte N and Gibbins R New Elites in Old States: Ideologies in the Anglo–American Democracies Oxford University Press New York 1990. (Figure 2.2 p 37, overlap of political party platforms.)
[29] The best introduction may be the social histories of Queensland Aboriginal policy by Rosalind Kidd, frontier histories of Henry Reynolds, and the essay-style historical survey by David Day.
[30] NiTC Nisga’a Tribal Council Website 2000 <www.ntc.bc.ca/>. See also case note in this issue, Campbell et al v A-G (BC), A-G (Cda) and Nisga’a Nation & Ors p 59.
[31] On 10 March 2001, another major British Columbia agreement in principle or treaty in principle was signed with the Nuu-chah-nulth, the people Captain Cook called Nootka, whose territory is the western half of Vancouver Island. One of their reserves near Port Alberni hosted the founding conference of the World Council of Indigenous Peoples in autumn 1975. They are negotiating an agreement involving, inter alia, the Pacific Rim National Park, environmentally and culturally iconic islands of primeval forest, fisheries, the forest industry, self-government and so on. See NuTC Draft Nuu-chah-nulth Agreement-in-Principle Nuu-chah-nulth Tribal Council, Government of British Columbia and Government of Canada Port Alberni BC 2001. Online: <www.aaf.gov.bc.ca/aaf /nations/nuuchah/ntcaip.htm>.
[32] Jull P ‘Aboriginal peoples and political change in the north atlantic area’ (1981) 16 Journal of Canadian Studies 41. Not the least reason for the opening was the Federal hope that provinces would do their part in future indigenous policy. They had refused to meet with Ottawa or discuss major intergovernmental issues for fear of high costs or a move to dump Federal constitutional obligations on them. This meant in practice that they were (and are) running the risk of urban racial explosions like those Canadians witnessed in the USA in the 1960s. Indians have been so wary of any Federal moves to dump them on the provinces that they helped maintain Federal timidity. Any Ottawa fantasies of dodging or shifting responsibilities to provinces died with the 1968 white paper. So the national constitutional process from the early 1980s brought indigenous and provincial sides together in a climate which, at its best, has allowed for easier solutions of many practical problems of public services delivery, capital works, and so on. The late 1980s saw the first published studies of intergovernmental and constitutional politics appearing, notably such fine books as Long JA, Boldt M and Little Bear L Governments in Conflict? Provinces and Indian Nations in Canada University of Toronto Press 1988; Hawkes DC (ed) Aboriginal Peoples and Government Responsibility: Exploring Federal and Provincial Roles Carleton University Press Ottawa 1989; and Dacks G (ed) Devolution and Constitutional Development in the Canadian North Carleton University Press Ottawa 1990.
[33] Jull P ‘Canada: A perspective on the Aboriginal Rights Coalition’ IWGIA Newsletter No 30, International Working Group on Indigenous Affairs Copenhagen 1982 p 82. (Abridged version of a 35-page paper, ‘A Necessary Victory’.)
[34] R v Sparrow [1990] 1 SCR 1075.
[35] Since a Supreme Court of Canada reference in 1939 the Inuit had been deemed a full federal responsibility as ‘Indians’ within the meaning of the British North America Act 1867 (now renamed Constitution Act, 1867). They do not fall under the Indian Act however.
[36] R v Powley (2001) 53 OR(3d) 35. Extracted and headnoted in (2001) 6(1) AILR 85.
[37] For example, for cases in the period 1763–1973, see: <library.usask.ca/native/cnlc/index.html/>. For later Supreme Court of Canada cases, for example, Sioui and Sparrow, see: <www.lexum.umontreal.ca/csc-scc/en/pub/1990/vol1/index.html>.
[38] And so Indigenous political and policy debate across the ethno-cultural divide is full of the small change of official jargon such as ‘meaningful consultation’, ‘ongoing process’, ‘consultative mechanisms’, and so on, although such lugubrious bureau-speak may be better than sharp clear words bringing sharp clear divisions.
[39] I am grateful to Justice Binnie’s Marshall and Justice Sharpe’s Powley judgments for reminding me of this power of language, and to Professors Northrop Frye and James Carscallen at Victoria College, University of Toronto, for making me conscious of ‘great codes’ and of prophecy as social vision, back in the 1960s.
[40] NFB Dancing around the table National Film Board of Canada Ottawa 1987; Kajlich H Transforming Constitutionalism: Indigenous–White Relations in Canada 1983–1987 Honours thesis Dept of Government University of Queensland 2000.
[41] Kajlich above note 40.
[42] NFB above note 40.
[43] Jull P ‘How self-government must come: detailed work ... after the failure of the constitutional conference’ (1987) 8 Policy Options 10; Kajlich above note 38.
[44] Russell PH ‘Constitutional politics in multi-national Canada’ (1999– 2000) 14 Arena Journal 75; Kymlicka W Finding Our Way: Rethinking Ethnocultural Relations in Canada Oxford University Press Toronto 1998.
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