Aboriginal Law Bulletin
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Aboriginal Law Bulletin |
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by Doug Sanders
Aboriginal self-government was a major piece of unfinished constitutional business, left over from the First Ministers' Conferences that ended in 1987. Constitutional recognition was supported by the 1983 Penner report, the 1991 federal proposals and the 1992 Beaudoin-Dobbie report. On 12 March, 1992, a new negotiating process was launched by the federal and provincial governments. Aboriginal representatives were included as full participants.
Reasonably quickly there was agreement on the constitutional recognition of an 'inherent right of self-government', resulting in 'three orders' of government. Premier Wells of Newfoundland continued to have doubts and pressed for a clear listing of the powers of Aboriginal governments, something opposed by aboriginal leaders. When Premier Bourassa of Quebec joined the process in July, he wanted to safeguard the "territorial integrity" of Quebec. That is, he wanted to protect the James Bay and Northern Quebec Agreements from new challenges in order to facilitate the Great Whale hydro-electric project. He also opposed judicial definition of the powers of Aboriginal governments. By August 28 there was unanimity on the following new constitutional provisions.
A new s.35.1 will recognize that "the Aboriginal peoples of Canada have the inherent right of self-government within Canada" (paragraph 41).
The powers of Aboriginal governments will be described in the constitution, not defined. Paragraph 41 has a 'contextual statement' which tells us that Aboriginal people, through their governments, will safeguard and develop their languages, cultures, economies, identities, institutions and traditions and develop, maintain and strengthen their relationship with their lands, waters and environment so as to determine and control their development as peoples according to their own values and priorities and ensure the integrity of their societies.
Until Aboriginal laws are in place, federal and provincial laws will continue to apply (paragraph 47). In other words, Aboriginal governments will develop at their own pace, with their own priorities, without any jurisdictional vacuum being created along the way. Federal and provincial laws will cease to apply only when Aboriginal governments enact their own laws on a particular matter. This permits a gradual development of Aboriginal governments, similar to the evolution of tribal powers that has been occurring in the United States over the last thirty years.
The wording of paragraph 41 indicates that Aboriginal legislative powers will always overlap with federal and provincial powers, and that Aboriginal laws will have paramountcy over the laws of both of the orders of government.
The limitations on Aboriginal governmental powers are:
(a) the principle that Aboriginal governments co-exist with two other orders of government in Canada;
(b) the general descriptive language on the purpose of Aboriginal governments in the Canada Clause and in the 'contextual statement' in paragraph 41 [though the wording is inclusive, not exclusive);
(c) the application of the Charter of Rights and Freedoms; and
(d) a provision in paragraph 47 that Aboriginal laws "may not be inconsistent with those laws which are essential to the preservation of peace, order and good government in Canada."
Paragraph 47 was added to reassure Quebec. As well, paragraph 44 says that the Aboriginal constitutional provisions on self-government do not themselves affect rights to land. Premier Bourassa has stated that these modifications to the package have protected Quebec's “territorial integrity”.
The Assembly of First Nations failed to get any specific reference to Aboriginal justice systems or a description of Aboriginal peoples as 'distinct' societies.
There was strong pressure for a listing of powers of Aboriginal governments. Aboriginal leaders opposed any list. Alternatively, powers could have been defined in negotiated agreements. Aboriginal leaders opposed exclusive reliance on negotiated agreements arguing that such an arrangement made the 'right' of self-government 'contingent' on successful negotiations and, therefore, not a right.
The Charlottetown agreement strongly favours negotiated agreements on self- government, but allows, in the end, for judicial definition of self-government powers if the negotiation process fails.
Paragraph 45 commits the federal and provincial governments to good faith negotiations with Aboriginal peoples. The result is to be agreements:
"... elaborating the relationship between Aboriginal governments and the other orders of government. The negotiations would focus on the implementation of the right of self-government, including issues of jurisdiction, lands and resources, and economic and fiscal arrangements."
The agreements would gain constitutional status as "treaties", protected by section 35 of 1982 (paragraph 45). Some agreements, it seems, could be handled as "inter-governmental agreements" and protected from unilateral change [paragraph 26], a lesser level of protection.
Who are the parties to the negotiations? Major Indian groups insist on 'bilateral' negotiations, between Canada and individual First Nations, excluding the provinces. Metis have been more open to 'tripartite' negotiations. This contentious issue is not dearly resolved in the text. Paragraph 46, sub-item 7, lists parties to the ratification of agreements, suggesting three parties. Paragraph 26 on "inter-governmental agreements" refers to the possibility of "both bilateral and multilateral agreements" involving Aboriginal governments. Paragraph 48 on clarifying or rectifying treaties allows the exclusion of provinces, in most cases.
Negotiations are to be facilitated in three ways. A "dispute resolution mechanism involving mediation and arbitration should be established" to assist the negotiation process. [paragraph 46, sub-part 9].
Judicial review is blocked for five years by paragraph 42, to give time for negotiations to establish some patterns. And paragraph 41 provides that a court or tribunal should "enquire into the efforts that have been made to resolve the issue through negotiations" and may make orders designed to facilitate a negotiated settlement. Judicial definition of powers is, therefore, supposed to be a final resort when negotiations fail.
The issue whether litigation is to go to the regular courts or "special courts or tribunals" is to be considered at a First Ministers' Conference [paragraph 42).
The application of the Charter of Rights and Freedoms has been one of the most contentious issues. The bitter legacy of older patterns of sexual discrimination in the Indian Act meant that the issue was played out as a women's issue. The negotiating forum was male, with the exception of three Inuit women: Nellie Cournoyea, government leader in the N.W.T., Rosemarie Kuptana, head of Inuit Tapirisat of Canada (ITC), and Mary Simon, also of ITC. The Native Women's Association of Canada sued to get a seat at the table. The Federal Court of Appeal ruled in their favour on August 20th, when the process was effectively over (see casenote by Larissa Behrendt on p.14 of this issue [1992] AboriginalLB 46; 2(58)pg14).
Paragraph 43 provides that the Charter applies to the governments of Aboriginal peoples. The application of the Charter is, however, subject to two major qualifications. Firstly, s.25 of the Charter had been included in 1982 to protect the special rights of Aboriginal peoples from other provisions in the Charter. Now s.25 is to be strengthened to "ensure that nothing in the Charter abrogates or derogates from Aboriginal, treaty or other rights of Aboriginal peoples, and in particular any rights or freedoms relating to the exercise or protection of their languages, cultures or traditions" [paragraph 21. Traditional matriarchal or patriarchal kinship systems would be protected by this new provision. The provisions in s.25 are supplemented by paragraph 51, which allows Aboriginal programs of affirmative action and cultural advancement. These provisions fit with the recognition in the Canada clause of both individual and collective human rights. Secondly, Aboriginal governments will be able to override the Charter in the same way that s.33 of 1982 allows the federal and provincial governments to enact legislation which will operate "notwithstanding" the Charter.
Gender equality issues are to be on the agenda of a First Ministers Conference [paragraph 52].
The Canada clause states that Aboriginal governments "constitute one of three orders of government in Canada..." In some ways Aboriginal governments are equal to the other orders and in some ways not.
Aboriginal leaders achieved full participant status in the constitutional negotiations from May 12 to August 28. In future they will be participants in four special First Ministers' Conferences on Aboriginal constitutional matters (paragraph 53). For regular First Ministers' Conferences, Aboriginal people will only participate on matters directly affecting them [paragraph 23], though the question of fuller participation is listed in Part VI as a matter "not finally resolved".
Constitutional amendments that directly refer to Aboriginal peoples will now require Aboriginal consent [paragraph 601, not simply a First Ministers' Conference with Aboriginal participation, as had been provided in s.35.1 of 1982.
Aboriginal governments are not included in the provisions on appointments to the Supreme Court of Canada or on equalization payments. Both matters have been put off to a future First Ministers' Conference. In the meantime, provinces and territories are to consult with Aboriginal peoples in preparing lists of Supreme Court of Canada nominees [paragraph 20].
Aboriginal peoples will get special representation in the Senate [paragraph 9], with a possible veto on matters affecting them. The issue of special representation in the House of Commons is put off [paragraph 221.
There are tremendous differences in the situation of Aboriginal communities in Canada. Indian reserve communities are the most obvious beneficiaries of the new provisions.
They have territories and government institutions. They have already been assuming more governmental powers. The only Metis groups similarly positioned are the Metis Settlements in Alberta. Constitutional protection of the Alberta Metis Settlements had already been worked out. Paragraph 55 confirms those arrangements and safeguards provincial legislative jurisdiction.
Metis issues, apart from the Alberta settlements, are distinctive because the population is dispersed. There are Metis communities, but without defined territories or Metis local governments. None are exclusively Metis. Some of these communities may be able to reorganize as self-governing units, but there would probably have to be some formalization of a land base. Paragraph 56 suggests that a separate process for dealing with Metis issues will be established by a Metis Nation Accord, to be negotiated between the Metis National Council, the federal government and the five most westerly provinces.
Paragraph 45 recognizes the possibility of "non-ethnic governments". This provision is responsive to the Nunuvut agreement, under which Inuit, as a majority population, will control a separated territory in the eastern arctic. Non-Inuit residents would be able to vote and run for office, making it a 'public, not 'ethnic government.
What about Aboriginal people living in towns or cities? The Native Council of Canada has long argued that there should be equality between the Aboriginal peoples, that is between Indians, Inuit and Metis. This demand reflects the relative lack of government attention to Aboriginal people not living on reserves. The differing situations of Aboriginal peoples make a firm equality provision impossible. But four
provisions are a response to this concern:
Paragraph 48 describes special provisions on treaties with Aboriginal peoples. The provisions codify favourable interpretation rules already developed by the Supreme Court of Canada. They also provide for a negotiating process "to clarify or implement treaty rights, or to rectify terms of treaties when agreed to by the parties." Provincial governments can be excluded from this process by the Aboriginal side in most cases.
The final part of paragraph 48 makes it dear that this treaty clarification process will not be a substitute for self-government negotiations. Agreements under paragraph 48 cannot deal with the jurisdiction of governments.
Premier Bourassa had serious reservations about the Aboriginal package. Premiers Getty of Alberta and Harcourt of British Columbia reasoned with Bourassa in the light of their own experience with Aboriginal claims. Premier Rae of Ontario was credited with the last-minute drafting of additional provisions favouring negotiations, which apparently were sufficiently reassuring to Mr Bourassa. The result was unanimity. Within days the opposition, Parti Quebecois, in Quebec stated their opposition to the package on the basis that it permitted judicial definition of Aboriginal government powers.
Aboriginal support for the package is not uniform. The Indian Association of Alberta pulled out of the Assembly of First Nations on May 22, urging a purely bilateral process. The well-known Mohawk activist, Billy Two Rivers, attacked the position taken by Ovide Mercredi, head of the Assembly of First Nations, on television news in August. However, a special summit of Indian Bands in British Columbia unanimously approved the package in September.
There will be a separate tally of Aboriginal votes, at least for reserve residents. Ovide Mercredi has said that if the package is rejected by the Indian vote, it would be a call for more negotiations.
The Aboriginal provisions are a synthesis and balancing of the goals and concerns of all the actors in the negotiations. The western provinces, which played negative roles in 1981 and in the First Ministers' Conferences, were supportive. Quebec, which has long prided itself on the most enlightened approach to indigenous peoples in Canada, pulled back from opposition when it obtained some limited modifications to the provisions. We see inn the paragraphs the hands of all of the parties. A remarkable process of consensus building.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1992/45.html