1. On April 17, 1982 the Constitution was patriated. It provided in section 35 that "the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed''. In addition, section 37 required the holding of a First Minister's Conference on matters that directly affect the aboriginal peoples of Canada "including the identification and definition of the rights of these people to be included in the Constitution".
2. A Constitutional Conference on Aboriginal Affairs was held pursuant to section 37 in 1983. It made some progress. An "ongoing process" was entrenched in the Constitution calling for three additional conferences. These were duly held in 1984, 1985 and 1987. There was little agreement. The optimism of 1982 gave way to frustration and recriminations. However, some good came out of these talks. A number of useful additions were made to section 35 by way of clarification. The awareness of nonnative Canadians was raised by live television coverage of the Constitutional Conferences on Aboriginal Affairs. Canadians generally are much better informed today than S years ago because of the articulation of native concerns by gifted speakers on behalf of the Assembly of First Nations, the Native Council of Canada, the Métis National Council, the Inuit Committee on National Issues and many others. But at the end of five years of effort the principal objective of the aboriginal peoples--the right to selfgovernment within the Canadian federation--remains an elusive vision.
3. Despite evident frustration about their own dealings with the First Ministers of Canada, most representatives of aboriginal peoples who testified to the Joint Committee welcomed the successful resolution of the "Quebec question". Mr. Zebedee Nungak of the Inuit Committee on National Issues, for example, told us:
At the outset I want to make it clear that our people and our committee and our organization have absolutely no quarrel with the principle of Quebec being included or being a full partner in the Constitution of Canada. We know what it is to be outside looking in.
4. Aboriginal peoples, like Quebec, believe that Canada would be strengthened by a recognition of the collective rights of their distinct society, and the further recognition that they too have a "role" to play in governmental terms in the protection and promotion of their distinct identity.
5. Effective Canadian sovereignty in the North is a particular concern of Canadians, and Mr. John Amagoalik of the Inuit Committee on National Issues told the Joint Committee:
Arctic sovereignty is not just icebreakers, sovereignty is not just nuclear submarines; sovereignty can also mean giving the people up there the right to selfgovernment, to make their laws and to enforce them. That is real sovereignty. We were born up there; we live there; and we will die up there. We are guardians of the Canadian Arctic, and that is the best form of Arctic sovereignty.
6. Some of the major concerns raised by the aboriginal organizations in testimony before the Joint Committee include the following:
(i) Aboriginal people see little "political will" on the part of First Ministers to come to terms with their demands even though aboriginal people constitute the majority in an area that encompasses over one third of the land mass of Canada (including the northerly third of Quebec);
(ii) Recognition of Quebec as a "distinct society" ignores the reality that aboriginal peoples also form "distinct societies";
(iii) Section 16 of the 1987 Constitutional Accord safeguards the rights of aboriginal peoples from the "linguistic duality/distinct society" interpretation clause, but not from any of the other consequences of the 1987 Accord including, for example, changes to the federal spending power;
(iv) Some aboriginal organizations believe that section 37 of the Constitution Act, 1982 requires that their representatives be invited to participate at any First Ministers' Conference that includes agenda items respecting constitutional matters affecting in any way the aboriginal people of Canada including fiscal arrangements, sharedcost programs and (in the "second round") fisheries and Senate representation. They were not invited to Meech Lake;
(v) Aboriginal people want a new constitutional process specifically dealing with treaty and aboriginal rights and "this process should continue until the process is complete".
7. The suggestion that the Constitutional Conferences on Aboriginal Affairs did not succeed because of a "failure of political will" on the part of First Ministers is, we believe, an unfair oversimplification.
8. It was the aboriginal peoples' organizations themselves that defined "aboriginal selfgovernment" within the Canadian federation as the threshold question that had to be resolved before any progress could be made on other aboriginal issues. Introducing a third order of government into the Canadian federation raises questions of great importance and difficulty. How, for example, is legislative and executive power to be redistributed among the federal, provincial and aboriginal governments? Would senior levels of government have any say in the education of youngsters living in aboriginal communities? Would the Criminal Code continue to apply to offences committed in all parts of Canada? How would aboriginal governments finance their programs? Mr. Jim Sinclair of the Métis National Council offered a philosophic response to this last question:
... many of the nonnative people who have come and talked to us will always tell us, if you Indians and you halfbreeds would begin to go to work and earn some money, you would be like us. They say, we came here and we had nothing when we came here, but look at us now. But my answer back to those people is always yes, you had nothing, and many of you people came from countries where there was oppression, where you were forced to leave because you did not like the system. And when you came to this country, you came with nothing. So where did you find the riches? You found them right here, right here in Canada. The resources that made people rich are right here in Canada. We feel those resources are ours, and we want to share in those resources. We are not asking for everything. We want to share in those resources, so we can participate in the economy of this country and the democracy of this country. And you cannot tell me that democracy works if you do not have some sort of economic backup in terms of our people being selfsupporting.
Even if this approach were accepted as valid, and we are not asked to express an opinion on it one way or the other, implementation of "resource sharing" involves highly complex arrangements. How, for example, would different levels of government share the responsibility for the conservation and management of important renewable resources, such as the salmon fishery in British Columbia? Moreover some aboriginal leaders contemplate a multiplicity of different types of selfgovernment from place to place and First Nation to First Nation:
... there is no way you can have one form of selfgovernment across this country when you have so many different economic regions and different tribal associations across the country.
9. There is no comparison, in our view, between the task set for themselves by Canada's aboriginal peoples--namely, creation of a third order of government--and constitutional recognition in an interpretation clause of Quebec's "distinct society". Among other differences, Quebec already has its governmental powers and jurisdiction spelled out in the Constitution Act,1867.
10. Aboriginal representatives told the Joint Committee that they too would be satisfied with a simple straightforward oneline statement in the Constitution recognizing aboriginal selfgovernment. Some of them suggested that this would be no more difficult than to add an interpretative clause recognizing the "distinct society" of Quebec. This assumes that an interpretation clause performs the same function in the Constitution as a clause creating a new level of government. This is incorrect.
11. For example, if a law of the Quebec legislature were challenged in court by a disgruntled inhabitant of the distinct society, the judges would have before them a defined catalogue of legal powers, e.g. section 92 of the Constitution Act, 1867 (including, it is proposed, a "distinct society" interpretation clause) and a well-established legal framework within which to assess the legal merits of the challenge. But if a law of an aboriginal selfgovernment were challenged in court, the judges would have no idea, in the absence of a catalogue of powers for aboriginal self-governments analogous to the detailed provisions of the Constitution Act, 1867, where the jurisdiction of aboriginal selfgovernments begins and where it ends and whether the challenged law is within its (undefined) powers or not.
12. Accordingly, the Joint Committee does not share the view that the failure of the Constitutional Conferences on Aboriginal Affairs can be attributed simply to a failure of "political will".
13. Aboriginal people say that they too constitute "distinct societies" within Canada. This is not denied by the 1987 Constitutional Accord. Indeed, recognition in the preamble of the Constitution that aboriginal peoples form distinct societies that have made and continue to make an important contribution to Canada was discussed at the First Ministers' Conference on Aboriginal Affairs in 1983 and generally rejected by aboriginal leaders at that time as mere symbolic windowdressing.
14. Having regard to this rejection, Mr. John Amagoalik of the Inuit Committee on National Issues told us:
It hurts us very much when political leaders like the Prime Minister continue to say that the two founding nations of this country are French and English. We have been saying for years now that we are of this country. We are of the soil. We did not come on a ship or immigrate to this country. We are of it. We are getting tired of being ignored in this respect.
and Chief Georges Erasmus of the Assembly of First Nations said:
How can you deny that First Nations, with their land, their cultures, their institutions, their people that have been here for thousands of years, are not a distinct society?
It is necessary to keep in mind that recognition of aboriginal people as part of the "founding nations of this country", (a statement that we readily acknowledge to be true) was not denied by the First Ministers. The Constitutional Conferences on Aboriginal Affairs were simply working on a different agenda that had largely been set by the aboriginal organizations themselves, i.e. aboriginal selfgovernment.
15. With respect to the potential decentralization of national sharedcost programs that could affect aboriginal people, Chief Georges Erasmus of the Assembly of First Nations told us:
Our experience shows us that when provincial governments choose to deliver services or programs to First Nations, be they national or provincial programs, they fall far short of what we need.
If federal powers are to be increasingly weakened in favour of the provinces, without including aboriginal protections, we believe the ability of the federal government to, exercise its moral and legal responsibility in practical terms under section 91(24) of the Constitution Act, 1867, will be significantly eroded, whatever the Constitution says.
16. In the view of the Joint Committee, however, Parliament, retains full authority under section 91(24) of the Constitution Act, 1867 to legislate for "Indians and lands reserved for Indians". The federal legislative power is expressly immunized by section 16 of the 1987 Accord from being "affected" by the distinct society clause. Nor have we heard any evidence to suggest that federal jurisdiction in this area will be weakened by other provisions of the 1987 Accord. There is some question about whether Métis people fall within section 91(24) of the Constitution Act, 1867 but this particular legal quarrel is not affected by anything in the 1987 Constitutional Accord.
17. A distinction must be drawn between rights enjoyed by aboriginal people as Canadians and those enjoyed by them by virtue of their status as aboriginal peoples. The second category is safeguarded by section 16 of the Accord. No special treatment is offered in respect of the first category because in respect of such matters as national sharedcost programs (as distinguished from programs formulated especially for aboriginal people) all Canadians are entitled to equal treatment.
18. Nor does the Joint Committee accept as justified the demand of aboriginal organizations for what amounts to a permanent seat at First Ministers' Conferences. It is true, as Chief Georges Erasmus told us, that:
In the west, in the east, in the high Arctic and inland waters, aboriginal people take the approach that fishing is absolutely vital to their continuing as a people and that it has to be a jurisdiction they have under their control.
However, many groups in Canada are vitally affected by the allocation of jurisdiction over fisheries and the outcome of that agenda item at future First Minister's Conferences. The Joint Committee takes the view that for these purposes aboriginal people, like other Canadians, are appropriately represented by the leaders of the federal and provincial governments that aboriginal peoples help to elect.
19. Representatives of the aboriginal people urged the Joint Committee to recommend that aboriginal issues be placed on the agenda of the next First Ministers' Conference. Mr. John Amagoalik told us:
I have no confidence in the First Ministers agreeing to get aboriginal matters back on the agenda unless this Committee and Parliament decide that this issue is important enough and it should be back on the agenda.
20. The Assembly of First Nations told us that unless its five proposed amendments (Erasmus, 9:5253) were adopted, the 1987 Constitutional Accord should be rejected (Erasmus, 9:60). We do not agree. There is a broad consensus that Quebec's five conditions are realistic and achievable and that the time is ripe for decision. There is no comparable consensus at this time on aboriginal selfgovernment or other constitutional matters directly affecting aboriginal people.
21. Quebec has supported a new deal for aboriginal peoples. Its participation in future Constitutional Conferences on Aboriginal Affairs, which would be made possible by its acceptance of the Constitution, would be to the benefit of aboriginal people and may perhaps break the impasse among some of the provinces that now impede progress in this area.
22. The Joint Committee believes that while the 1987 Constitutional Accord does not itself represent a significant problem for aboriginal people, nevertheless, it is clear that their constitutional agenda has not yet been fully explored. Possibly one of the reasons for lack of progress was the public nature of the discussion. Mr. Smokey Bruyère of the Native Council of Canada acknowledged that some reconsiderations of that issue might be warranted in light of the success at Meech Lake.
Mr. Keith Penner: Do you think the failure of those four First Ministers' Conferences was because the process was wrong? If it had been different, and if you ever have another chance at this constitutional recognition, would you propose that you follow a different pattern and go into seclusion somewhere and try and hammer out an agreement and stay there until you get one?
Mr. Smokey Bruyère: It is an interesting solution. I think that that should be tried.
23. In any event, whatever the nature of the process preferred by the participants, we share the view that constitutional issues that directly affect aboriginal people deserve continued prominence until solutions are identified and implemented. The social and economic plight of many aboriginal people is well known. While many have achieved great success in different walks of life, others have not. Mr. Jim Sinclair of the Metis National Council spoke on behalf of the dispossessed when he told the Committee:
We have been living on a system of welfare. We have been living in a system where there are jails, foster homes; where we are unemployed; where there are courts and police and social workers who make a living off our people. So in a sense in Canada we have become a source of revenue for nonaboriginal people. We probably provide the most jobs of any industry in Canada, because billions of dollars, supposedly, are spent on our people.
24. Efforts by Canadian governments over the decades to break the cycle of property and dependence affecting a substantial number of aboriginal people have not worked. The failure of past policies calls for a fresh approach. Selfgovernment appears to be the solution preferred by many aboriginal people. It deserves the best consideration that all governments, with the participation of aboriginal peoples' organizations, are capable of giving to it.
25. The Joint Committee was therefore particularly concerned to be told that government funding to enable aboriginal organizations to pursue constitutional reform on matters that especially concern them has been either cut off or seriously curtailed. Some representatives of aboriginal groups alleged that the money was cut off because some governments did not like what the aboriginal people had to say:
When we came to the conference in March, and we spoke out about the way we were being treated, what was happening to our people, our funds were immediately cut off 100% because we spoke the way we did. Now, is that democracy?
26. It is, of course, quite possible that funding for the constitutional process was terminated because no further constitutional meetings on aboriginal affairs are scheduled. Yet, in the view of the Joint Committee, the important constitutional issues raised by aboriginal people remain on the nation's agenda as unfinished business. To deprive aboriginal organizations of money to carry on this work will not make the problems go away. It will simply exacerbate the already overwhelming sense of grievance felt by native Canadians towards the dominant nonnative governments and bureaucracies.
27. Despite our view that the unsuccessful Constitutional Conferences on Aboriginal Affairs should not stand in the way of acceptance of the 1987 Constitutional Accord, we regard the issue of aboriginal selfgovernment as unfinished business of high constitutional importance. In these circumstances the Joint Committee:
(ii) recommends that the federal government restore funding to aboriginal organizations at an appropriate level to enable them to continue to participate in the preparatory work that is essential to successful constitutional negotiations;
(iii) recommends that a timetable and serious work plan be established by the federal government, in consultation with the provinces and the aboriginal organizations, to prepare for a further Constitutional Conference (or Conferences) on Aboriginal Self-Government:
(iv) recommends that serious consideration be given to conducting such Conference(s) on Aboriginal SelfGovernment in closed sessions as well as open sessions.
(v) recommends that the first such Conference take place no later than April 17, 1990 and that any further conferences that may be required be scheduled at that time in light of whatever progress has been achieved.
William F. Maton