Nettheim, Garth --- "Constitutionalising Aboriginal Rights Canadian Style" [1987] AboriginalLawB 14; (1987) 1(25) Aboriginal Law Bulletin 6

• Constitutionalising Aboriginal Rights Canadian Style

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Constitutionalising Aboriginal Rights
Canadian Style

by Garth Nettheim

The final First Ministers' Conference mandated by the Canadian Constitution in regard to Aboriginal rights is scheduled for April 1987. Garth Nettheim, on a recent visit to Canada, attended a lead-up Ministerial level meeting on 15-16 October, 1986.

Over 200 Canadians convened in a Toronto conference hall to discuss Aboriginal self-government under the Canadian Constitution. Those present were attending on behalf of 17 parties - the federal government, the governments off the ten provinces and the two territories, and the four national organisations which politically represent the aboriginal peoples within Canada.

The native organisations are the Assembly of First Nations, which speaks for most of the 580 Indian bands, the Native Council of Canada, which represents non-status Indians and Metis; the Metis National Council which speaks particularly for the historic Metis peoples of the west; and the Inuit Committee on National Issues representing the Inuit (Eskimo) peoples of the north. The discussions were simultaneously translated into three languages - English, French and Inuktikuk.

I was able to attend as a consultant with one of the native organisations. Throughout. I had the continual sense that such a meeting simply could not happen in Australia. On later reflection, however, I wondered, why not?

This was by no means the first such meeting about Aboriginal rights, nor will it be the last. Such meetings have proceeded now for several years, and function at three levels: there are meetings of senior officials from all 17 parties; these pave the way for Ministerial meetings; and these culminate in what is known as First Ministers' Conferences (FMC, for short). The October meeting was a Ministerial meeting - there will be further meetings of officials and of ministers prior to the next FMC in April 1987.

The key to the process lies in the Canada Act. 1982. This Act (like the Australia Act, 1986) required enactment by the United Kingdom Parliament. The primary objective was to achieve Pierre Trudeau's long-held ambition to 'patriate' Canada's Constitution, i.e., to introduce an amending formula so that the Constitution (formerly British North America Act, 1867, and its many amendments) could be amended within Canada, without any further need to resort to the UK Parliament. This is set out in Part V of the Constitution Act, 1982, (which is a Schedule to the Canada Act). But the Constitution Act, 1982, added other elements to Canada's Constitution, notably Part I, 'Canadian Charter of Rights and Freedoms', and Part II 'Rights of the Aboriginal Peoples of Canada'. Part 11 was further amended (under the new procedure) in 1983.

As a result, Canada's Constitution now recognizes and affirms 'the existing aboriginal and treaty rights of the aboriginal peoples of Canada' who are defined to include 'the Indian, Inuit and Metis peoples of Canada'.

The rights of the aboriginal peoples are not identified or defined in the Constitution; instead, a process was established to do this, comprising a constitutional conference of the Prime Minister of Canada and the first ministers of the provinces, representatives of the aboriginal peoples and representatives of the governments of the Yukon Territory and the Northwest Territories. The Constitution Act, 1982 contemplated that one FMC would suffice, and required that it be held within one year of the commencement of Part ll of the Constitution. The 1983 FMC did not settle the issue but did produce agreement for further amendments, including provision for the further FMC meetings held in 1984 and 1985 and the last in the (current) series to be held in April 1987.

A number of issues are on the FMC agenda including the 'renovation' of treaties, the question of a land base for Metis people and the right of aboriginal peoples to self-government. The latter item has been very difficult, but the concept is now taken seriously by all of the governments, although a minority of provinces are not yet wildly supportive of such an amendment. It now looks as though there is a reasonable chance that a further constitutional amendment may recognize a right of self-government of aboriginal peoples , the details of such self-government to be settled by a series of negotiated agreements in various parts of the country. However, a lot of detailed work remains to be done on such tricky topics as the respective roles of federal, provincial and aboriginal governments in funding self-government arrangements.

When the conference process began in 1983 a majority of government representatives were highly sceptical about the notion of aboriginal self-government. But the process of discussion over subsequent years appears now to have led most governments to accept the idea, at least in principle.

How, if at all, does any of this translate to Australia? The specific language of the Canadian provision would not travel well. The reference to treaty rights would be meaningless because there have been no treaties with Australia'a aboriginal peoples. And Australian courts, unlike Canadian courts, have not recognised aboriginal rights in respect of such matters as land, except insofar as such rights are given by Australian legislation (though this may change).

The only express references to Aboriginals in the Australian Constitution as enacted in 1900 were to exclude them from the census and to deny Commonwealth law-making power. Both provisions were deleted as a result of an amendment referendum in 1967.

Australia's Constitution as it stands does not recognize or affirm any rights of its Aboriginal peoples. But the Constitutional Commission is currently considering possible changes to the Constitution. It would be perfectly feasible to 'constitutionalize' aboriginal rights, just as the Canadians have done.

Why should it be done? Basically, as a matter of justice. They were here first-for some 40,000 years before non-Aboriginal settlement. They did not agree to having their country taken away-there were no treaties-nor were they ever compensated. In fact they paid, and continue to pay, for the destruction of their society by continuing to appear at the bottom of nearly all the social indicators of health, education, employment and housing. Yet, they choose not to 'disappear', and they continue to insist on their aboriginal identity. Recognition of that identity. and of rights to residual land plus a measure of self-government seem to be essential pre-conditions to the process of Aboriginal recovery.

Canada recognizes the special place of the indigenous peoples. So does New Zealand. So does the USA. So, increasingly, does the world community through the United Nations and other international agencies. Australia's claims in Geneva to accord similar recognition sound increasingly hollow in the light of the tendency of our governments to treat aboriginal rights as a matter of benevolence and welfare. (as stated recently by the conservative federal Oppostion) rather than as a matter of right. Australia will sound more convincing only when the leaders of our governments are prepared to commit the time and resources to sit down with Aboriginal representatives, possibly over a period of years, to negotiate a fair basis for the sharing of the continent. The Canadians have set an impressive example.