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The Constitution: “Existing” Rights Recognized But...

Beth Cuthand

SASKATCHEWAN INDIAN      DECEMBER 1981      v11 n11 p02  
On November 2, a delegation of 19 Chiefs, Executive members and support staff arrived in London, England for two weeks of meetings and public appearances to inform the British public at all levels of the Crown obligations to the Indians of Canada. This is the sixth time in two years that Saskatchewan Indian nations have journeyed to Britain to press their case.

Britain is a highly stratified society. There is a very defined class system. This trip was organized to gain as much exposure to every level of British society as possible.

Even while the delegation was busy in Britain, events on the other side of the ocean were leading up to a shocking surprise for Canadian Indian nations.

Indian rights clause was dropped,

Trudeau and the provinces reached an accord on November 5, agreeing to the terms under which Canada's Constitution would be patriated. Somewhere in the intense debate that went on between the provinces and the Federal Government, Clause 34 of the Charter of Rights and Freedoms which recognized a limited form of Aboriginal and Treaty rights was dropped from the Constitution.

The reaction from Indian leaders across the country was initially one of stunned, shocked disbelief. Though Clause 34 was never acceptable, it did provide some measure of recognition however it was limited and incomplete. The fact that Federal/Provincial powers could eliminate such a small concession was shocking.

Twenty-four hours after the announcement was made the full impact of the Constitutional omission set in and Indian reaction was uniformly condemning.
Earlier on the day of the announcement, FSI Chief Sol Sanderson warned reporters in Britain that violence similar to that in Northern Ireland might develop in Canada unless Indian demands were met.

After the Federal and Provincial accord was signed the possibility of violence became a clearer option than ever before. It seemed as though no one in Ottawa cared.

Trudeau shrugged and moved on...

According to Richard Gwyn, Toronto Star political columnist, "During the same 10 hours or so during which the constitutional deal was done, the "aboriginal rights" of native peoples took up at most, 10 minutes of everyone's time. Among themselves the premiers scarcely mentioned the topic. Trudeau, when the compromise deal was brought to him, asked if aboriginal rights had been omitted by mistake. The premiers mumbled no. Trudeau shrugged and moved on to the next agenda item."

Back in Britain, the FSI delegation succeeded in winning the co-operation of one of Britain's foremost international lawyers, Rosalind Higgins, a widely known and respected professor of international law at the University of London. She agreed to prepare a memorandum to the Kershaw Committee outlining the questions the committee should have asked when considering Britain's legal and political obligations to Canada's Indians. On November 10, her memorandum was finished and sent with a covering letter from Chief Sol Sanderson to Sir Anthony Kershaw, Chairman of the Select Committee on Foreign Affairs otherwise known as the Kershaw Committee. (see accompanying story).

Blakeney forgot who swung the vote

The fact that Premier Blakeney supported the exclusion of the Treaty and Aboriginal right clause was even more surprising. It is estimated the Indians hold the balance of power in approximately 23 of the 61 provincial ridings. With a provincial election coming up next spring, Blakeney seemed to have forgotten who swung the Northern vote in the last election.

On November 12, a delegation headed by Chief Melvin Isnana, newly elected FSI executive member, met with Premier Blakeney. Blakeney was reminded that:

Blakeney was briefed on the FSI position regarding the Constitution. Delia Opekokew, summarized the opinion of Rosalyn Higgins. Blakeney was told that he must take the Indian position much more seriously than he has and

(continued page 3)


The Constitution: “Existing” Rights Recognized But...

Beth Cuthand

SASKATCHEWAN INDIAN      DECEMBER 1981      v11 n11 p03  
that his government must get off the fence or it will look foolish since the province has traditionally supported and affirmed Treaty obligations.

Blakeney committed $80,000 toward the FSI Constitutional work and promised to look at the Federation's request for $500,000.

French reminded of Treaty

Meanwhile, Saskatchewan Indians had begun to develop the international implications of their campaign in Europe. In Paris, they met with Mr. M. Dubray, chief advisor on Foreign Affairs to President Francois Mitterand. They discussed the possible action that the French government might take to ensure that the Treaty of Paris 1763 was not breached by Britain. In that Treaty Britain promised the French in exchange for French lands in Canada, that they would not allow Indians to be disposed of their lands and rights. The delegation received assurances that the French government would pursue the matter only if Indian rights were not recognized by other means.

Meanwhile, events were taking shape in Ottawa. It was clear there was a pressing need for a statement of basic principles that all provincial and territorial Indian governments could agree on and use as a basis for future negotiations with all levels of government.

From November 10 to 12, the Joint Council of the National Indian Brotherhood met to hammer out basic Treaty and Aboriginal Rights Principles. The Joint Council is made up of 21 members of the interum Chiefs' Council and the Executive Council: one representative from each of the 11 provincial and territorial member organizations of the N.I.B.

On November 18, the group finally came to an agreement after gruelling days of debate and negotiation.

Signatories to the agreement include the Chiefs of Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, Saskatchewan, Alberta and the Yukon. As of this writing, British Columbia and the Dene Nation in the N.W.T. have not signed.

Just two days before the signing the F.S.I. delegation to Britain returned home satisfied that the British people were beginning to realize their obligations to Indians in Canada. Upon his return FSI Chief Sol Sanderson an-

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The Constitution: “Existing” Rights Recognized But...

Beth Cuthand

SASKATCHEWAN INDIAN      DECEMBER 1981      v11 n11 p04  
nounced the start of an Indian treaty campaign in Canada. "Many Canadians are unaware of the existence and content of the treaties," Chief Sol Sanderson stated. "If they read them, they will find the international treaties call for a true confederate relationship between the Indian nations and non-Indians of Canada.

ing powers to veto or alter Treaty obligations would never be accepted by the Indian Nations of Saskatchewan.

By this time, the lobbying at all levels of government was beginning to pay off. In Britain, the Select Committee on Foreign Affairs acknowledged the legal memorandum of Rosalyn Higgins and vowed to give it "serious consideration".

"Existing" rights were recognized

Then on November 26, just as Saskatchewan Chiefs were beginning the second day of their Policy Conference, the House of Commons voted unanimously 222 to 0 to recognize "existing" treaty and aboriginal rights.

That same day, Doug Anguish, member of Parliament for Meadow Lake Constituency, read the Treaty and Aboriginal Rights Principles into the record of the House.

Just what "existing" means is worrisome for Indian leaders. Delia Opekekew legal advisor to the FSI warned Chiefs at the Policy Conference that unless "existing" is removed from the Native rights section, the courts could rule that Indian rights are limited to those recognized in the Indian Act and past Court decisions.

First Vice-president, Doug Cuthand said the FSI would continue to oppose patriation until an Indian consent clause is added to the proposed amending formula.

The presence of a consent clause has been an issue since Trudeau first started the patriation process. Indian leaders strongly oppose the existing formula. As it stands now, future changes to the Constitution can only be made by the Federal government with the support of seven of the ten provinces representing fifty percent of the country's population.

Unless this is changed by an extensive Indian lobby, the provinces will effectively control Indian rights.

The week of November 30 saw a small delegation of the Joint Council of the National Indian Brotherhood return to Britain. They presented the Declaration and Principles of Treaty and Aboriginal Rights to the All Party Committee on the Constitution. This was the first time Indians had been heard by this powerful and influential Committee. Only the Province of Alberta out did us on Committee member turn out.

A continued lobby in Britain was ratified by the Chiefs Policy Conference. The lobby is intended to safeguard treaty and aboriginal rights and enhance the Crown Indian relationship that has existed since the signing of the treaties. It is expected to lay the groundwork for comprehensive recognition of Indian sovereignty over Indian lands and people.

So while "existing" rights have been recognized, the fight continues.