Aboriginal Law Bulletin
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by Douglas Sanders
The First Minister’s Conferences on aboriginal rights are over. In his package of proposals at the final FMC in March, 1987, Prime Minister Mulroney included one more FMC in ten years. When his amendments were rejected, Mulroney dropped the idea. Premier Pawley of Manitoba suggested that the 1987 FMC be adjourned, not ended. No one supported Pawley. Mulroney ended the conference, in the middle of the second afternoon, declaring that the process was over. Not even the aboriginal leaders pushed for more FMCS. Everyone was happy they were over. The newspapers churned out gloomy headlines about failure and disappointment while the Aboriginal leaders held a joyous party in the Ottawa convention centre.
For the record, what was offered by the federal and provincial governments over the five year period? Is there anything that future aboriginal leaders may regret that this generation of leaders rejected?
The 1983 conference is the only FMC remembered as a success. It is the only one that produced any constitutional amendments. What were the gains?
In the conference Prime Minister Trudeau was the first Prime Minister to accept the idea of aboriginal self-government. He proposed no wording for a constitutional amendment on self-government, but put self-government on the agenda for the following FMCs.
Section 35(1) was added. It provides that there must be an aboriginal FMC before there can be any amendment to section 91(24) or to the sections of the 1982 constitutional amendments which mention aboriginal peoples. This means participation, but not a veto. The federal and provincial governments could still push through an amendment without aboriginal consent, as long as they defend their actions at a public FMC on national television. This does not mean equal participation with the federal and provincial governments in the constitutional amendment process. No aboriginal participation is required for amendments to other sections of the constitution.
Section 35(3) was added to make it clear that land claims agreements have the same protection as treaties. The big question was whether the James Bay Agreement was a treaty. By section 35(3) it is. Treaty land entitlement agreements in Saskatchewan and 'cut-off' land settlements in British Columbia would also be treaties.
Section 35(4) was added guaranteeing treaty and aboriginal rights equally to men and women. This provision was supposed to end the sexual discrimination in the Indian Act, but it was written by the lawyers from the Department of Justice in such a way that it is not aimed at rights under legislation. No one knows what the section means.
Section 37.1 was added providing for the additional First Minister's Conferences. Subsection section (4) made it clear that the FMC process did not 'derogate from section 35(1), the section recognising and affirming existing aboriginal and treaty rights. The Assembly of First Nations (AFN) has always insisted that Indians have substantial rights under section 3 (1). Any AFN agreement on future conferences or any agreement on a process of negotiating self-government agreements always required a 'non-derogation' clause, to make it clear that these processes did not take anything away from section 35(l).
The 1984 FMC came after an all party committee of the House of Commons called for the constitutional recognition of Indian self-government. The 'Penner report' supported the Indian position that self-government was an aboriginal and treaty right. Canada could not 'give' Indians self-government: they could only recognise the inherent right of Indian First Nations to govern themselves. The Penner report was endorsed by every political leader in sight-including the three party leaders in the House of Commons, Mulroney, Turner and Broadbent. Even provincial leaders hostile to Indian interests do not publicly oppose the idea of Indian self-government.
At the 1984 FMC Prime Minister Trudeau proposed a constitutional amendment which would recognise a right of aboriginal peoples 'to self-governing institutions', but 'subject to' their powers being settled by negotiation, This was a conditional or contingent right. There would be no self-govemment without agreement by an aboriginal group and the federal and provincial governments. The self-government package would be put in place by federal and provincial legislation. The section would commit the federal and provincial governments to participation in negotiations and to legislative implementation of resulting agreements.
Only Ontario, Manitoba and New Brunswick supported the federal draft in 1984. For a constitutional amendment there must be agreement by the federal government and seven provinces representing at least 50% of the population.
Added on to the federal draft were provisions on respecting aboriginal culture and on a review of federal and provincial programs directed at aboriginal peoples. No one treated these as of any importance. There was an attempt to draft a new sexual equality provision that would deal with rights under legislation, but the Assembly of First Nations objected to the proposed wording and Prime Minister Trudeau treated that as a veto.
The final two FMCs were chaired by Prime Minister Mulroney. The new conservative Prime Minister had a reputation as a negotiator. He had gained the support of five provinces for his proposals before the 1985 conference began. His proposal was simply the rewriting of Trudeau's proposal from 1984. Aboriginal peoples would have rights of self-government but under agreements worked out with the provincial and federal governments and put in force by provincial and federal legislation. The role of the provinces was limited to the 'extent of their authority', recognising the Indian position that the provinces had no jurisdiction on Indian questions land the federal position that Metis were under provincial jurisdiction). The federal and provincial governments were required to participate in negotiations with aboriginal groups on self-government.
Premier Devine of Saskatchewan was a key opponent of Mulroney's draft. He expressed fears that the courts might order Saskatchewan to negotiate with the urban aboriginal population of Regina. A' Saskatchewan draft' emerged in which the obligation to negotiate was dropped from the constitutional amendment and was put in a 'political accord' that the federal and provincial governments would sign. In other words, there would be no legal obligation on any province to negotiate with any aboriginal group. With this weakening of the Mulroney proposal, there were now the required seven provinces in agreement. The remaining question was aboriginal support for the Saskatchewan draft.
The Assembly of First Nations could not agree to the Saskatchewan draft. The only hope Mulroney had was to split the aboriginal organisations. In the back rooms he negotiated personally with the various organisations and got agreement from the Native Council of Canada. the Metis National Council, the Prairie Treaty Nations Alliance and the Inuit Committee on National Issues. On this basis he was going to override the objections of the AFN. But the Inuit changed their mind, and the deal fell apart in the last moments of the conference.
The preparatory meetings for the 1987 FMC went badly. Failure seemed certain. In the last weeks Nova Scotia and Ontario made proposals which they said offered a middle ground between the positions of the governments and the Indians. But there was no possible middle ground. The aboriginal organisations had formed a solid coalition and insisted on the recognition of an inherent right of self-government. The right must be 'free standing', that is a clear, unqualified, non-contingent statement of a right of self-government. There should be additional provisions establishing a negotiating process to define the powers of self-government. There should be additional provisions establishing a negotiating process to define the powers of self-government, but the right must not be dependent upon the success of those negotiations. The federal government never accepted the idea of a 'free standing' or non-contingent right. Their proposals, and those of Nova Scotia and Ontario. always meant no powers of self-government unless there were negotiated agreements implemented by federal and provincial legislation. Ontario and the federal government said they were proposing a non-contingent right of self-government. They never did.
Mulroney presented a federal draft. A new section would state: 'The aboriginal peoples of Canada have the right to self-government within the context of the Canadian federation.' The next section made it clear that the right was contingent on negotiated agreements that were implemented by federal and provincial legislation. Unlike the 'Saskatchewan draft' of 1985. the constitution would state that the federal and provincial governments were required to enter into negotiations with aboriginal groups. There were new provisions about the Charter of Rights and Freedoms. The Charter would apply to aboriginal governments 'to the extent that its application is appropriate in the circumstances'. and aboriginal governments would have the same right as the federal and provincial governments to enact legislation that would operate 'notwithstanding' the Charter. Finally there was a non-derogation clause and the provision for another aboriginal FMC within ten years.
The federal draft was opposed by British Columbia, Alberta and Sasketchewan and by all the aboriginal organisations.
The aboriginal organisations have lost the 'FMC process', if it can be called a process. All that has been lost, in truth, is the publicity for aboriginal issues that came with the FMCs. The publicity is over. The public pressure on the federal and provincial governments is over. But the 'process' was clearly dead by the time of the 1987 conference. Mulroney's handling of the 1987 FMC made it clear that he knew that there was no real chance of 'success'.
Should the aboriginal organisations have pushed for more FMCs? For the AFN the FMC process was never satisfactory because it included the provincial governments and the Metis and non-status Indians.
Were the aboriginal organisations right in insisting on a non-contingent right of self-government. George Erasmus, head of AFN, said that a contingent right was, in reality, a denial that there was a right. He preferred to argue that self-government was already recognised in section 35(1) than accept a contingent right.
But should the aboriginal organisations have agreed to the negotiating process on self-government in the proposals of 1984, 1985 and 1987? No. Anyone who has been involved with negotiations on aboriginal issues woulad tell you that those provisions would never have worked. The best constitutional language on a process would still simply be constitutional language on a process. Any lawyer will tell you that an agreement to agree is not enforceable. You need political commitment on the other side. None of the proposals would have supplied that. Only an enforceable free-standing right would have had a chance of forcing the federal and provincial governments to negotiate in good faith.
Is there any constitutional process now? Yes. The treaty process has never been ended in Canada. It is a bilateral process, between First Nations and Canada. Past present and future treaties are constitutionally recognised by section 35(1). This process is available if the First Nations and Canada agree to use it.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1987/38.html