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Towards A Political Solution

Beth Cuthand

Politics not law will ultimately determine the future of the First Nations in Canada. Whether we will continue to exist as distinct internally sovereign peoples within the Canadian confederation or acquiense to the relentless movement to assimilate us into the settler society of Canada, is the quintessential question raised by the patriation of the Canadian Constitution.

The First Nations have maintained, since the onset of the patriation process, that they have the legal, political and moral right to be a party to the Constitutional renewal; that their consent is required in matters affecting treaty and aboriginal rights in the Constitution. Ironically, the failure of the government of Canada to address Indian constitutional concerns has strengthened Indian political philosophy and ideology and has set the development of Indian government ahead by a generation at least.

During the past few months there has been movement toward the definition and consensus of principles among the First Nations. From mid-February to early April, exciting developments have been taking place in the hot noisy boardroom of the National Indian Brotherhood offices in Ottawa just three blocks from the corridors of non-Indian political power in Canada. Indian politicians and technicians from the provincial and territorial organizations have been working non-stop to push for a political solution to the Indian/Federal constitutional impasse.

The realization of a mutually acceptable political resolution of Indian/Federal disagreement over the degree of commitment to treaty and aboriginal rights addressed in the Constitution is more pressing than ever.

The Constitution leaves treaty and aboriginal rights vulnerable to amendment by provincial and federal governments and does not safeguard those rights "for as long as the grass grows and the rivers flow..." It does not spell out an adequate post patriation process that is acceptable to the First Nations who are themselves equal parties to Confederation and morally, legally and historically deserving of a status greater than that of a "special interest group."

Joint Council decisions and action at the National level during the winter just past have speeded definition of process and agreement between the First Nations. The Joint Council is the interim ruling body at the national level. It is made up of Chiefs, elders and provincial and territorial organization representatives. It is the bridge between the old non-profit society structure of the National Indian Brotherhood and the new national Indian government, the name and structure of which is to be decided later this month at the First Nations Assembly in Pentiction, B.C..

The Joint Council met February 17 and 18 in Ottawa and marked a turning point in the First Nation's Constitutional Lobby. Prior to this the emphasis had been on legal and political action in Great Britain. Since domestic remedies had failed in Canada in the political forum and First Nations had been denied access to Canadian courts on constitutional matters, the First Nations went to London England, and the seat of the British government.

Because all legal agreements had been signed with "the Crown in the right of Great Britain...", the First Nations put their trust and hope in the British sense of justice and honor. Britain would, they reasoned, recognize her responsibility to Canadian Indians and act to ensure Indian treaty and aboriginal rights were safeguarded in the Canadian Constitution. But the January British Court judgement brought down in the IAA case was adversely

Towards A Political Solution

Beth Cuthand

affecting the London lobby. The IAA had challenged the findings of the Select Committee on Foreign Affairs: or the "Kershaw Committee" as it came to be known or a narrow point of Law. This British Committee of the House of Commons looked into the constitutionality of the Canadian proposal. It had conducted a cursory investigation of Canadian Indian claims that Britain was party to the treaties and still had legal obligations. On the advice of the Foreign and Commonwealth office it declared that Great Britain no longer had responsibilities to Indian Nations. When the IAA challenged their decision in the Courts, the British Court of Appeal upheld the Kershaw Committee's findings. The 3 justices on the case unanimously agreed that the Crown had become "divisible". Lord Denning, Master of the Rolls, said Britain had no authority for Indians because the Crown was divided in the first half of the present century by Constitutional "usage and practice Political and legal means to delay passage of the Canada Bill in the British parliament were not substantially slowing the patriation process enough to allow political activities in Canada to take effect. Various paths had been tried but neither conservative Prime Minister Margaret Thatcher or the Labour caucus in the British House are willing to advocate further delay of the Canadian independence process. Entreaties to delay passage until the full legal arguments could be heard in the British courts were quashed by the IAA court ruling. The British and Canadian press latched on to the court's ruling as the definitive and final adjudication of the "Indian question". Press on both sides of the ocean closed their doors to the Indian side of the Canada Bill story. Press reports were one-sided and openly disparaging of the Indian position.

In Canada, Prime Minister Trudeau had steadfastly refused to meet with Indians until after patriation. Numerous letters were written between Indian leaders and the Prime Minister as well as his constitutional ministers and senior government bureaucrats. The Canadian government wanted to deal with the "aboriginal peoples"; the Indian, Metis and Inuit, as one group. This was problematic for Indian Nations because of the unique legal, historical and political basis for Indian rights as opposed to the rights of the Metis and Inuit. The inclusion of the provinces in the future constitutional talks was also contrary to the constitutionally recognized federal jurisdiction over "Indians and lands reserved for Indians".

Time was running out for the First Nations. In Britain the parliamentary process was going forward. Second Reading in the House of Commons was beginning. In Canada, public opinion was being manipulated by the Federal government to anti-Indian sentiment. The Constitutional issue was so complex and long standing that few people knew the real moves being made and many simply didn't give a damn anymore. Indian efforts to get their side of the story before the Canadian public and the British public were thwarted at every turn. Most Canadian journalists were openly hostile to any Indian public relation initiatives. So when the Joint Council met in mid February, it was with a sense of urgency. Their meeting began February 17, 1982 amid a flurry of telexes and phone calls from London where the historic Second Reading was taking place. As British Members of Parliament debated the merits of the Canada Bill as it related to Indian rights, on this side of the ocean the Indian Nations, as diverse culturally, politically, geographically and historically as the nations of Africa or Europe, struggled to reach a unified position on the process and principles to be addressed through a political solution.

They were assisted in their deliberations by the treaty and aboriginal rights principles. The principles are a declaration of the fundamental political beliefs shared by the First Nations of Canada and were signed November 18, 1981, by the Joint Council. They have since been ratified by most of the 576 Chiefs in the country. The ''nine points" as they are sometimes referred to were and are, the basis for political action at the national level. They were used as the framework for the Indian Rights amendment clause proposed by Chief Solomon Sanderson of the Federation of Saskatchewan Indians. This was the clause that had been lobbied in Britain with those Indian Nations taking an active part in the British lobby as well as British Members of Parliament and Lords. It was referred to over in London as "the addition to the Canada Act".

Chief Sanderson liked the clause because it didn't affect the body of the Canada Act and if accepted, would define a process of amendment that the Inuit and Metis could follow to spell out their rights in the Constitution. This new clause was by no means the final Indian Rights Amendment Bill. It was proposed as the basis to draw Members of Parliament into the

Towards A Political Solution

Beth Cuthand

[Text from Page 58]

The Declaration of Treaty and Aboriginal Rights Principles are the united position of the Indian Nations in Canada.

The principles were agreed upon November 18, 1981 by the Joint Council at the national level. They were ratified by Saskatchewan Chiefs at the Moose Jaw Policy Conference November 27, 1981.

Some of the signatories are featured on the next page. From upper left clockwise: Chiefs Alfred Stevenson, Roland Dustyhorn, unidentified, Louis Taypotat, Charles Wood, Pat Dillon, Lindsay Cyr, Edward Black (right), George La Roque, Miles Venne.


Towards A Political Solution

Beth Cuthand

debate, to fully examine the issues and finally refer it to a select committee to work with Indian leaders for its final draft. The Indian Association of Alberta was also putting forward an amending process for the endorsement of the Joint Council. The IAA was proposing nine amendments to the body of the Canada Act. The existence of two amending processes complicated the decision making at the Joint Council, but didn't preclude agreement. The Council agreed to support the IRA Clause and the amendments put forward by the IAA. The general feeling was that every means should be attempted to achieve the goal of entrenchment of the treaty and aboriginal rights principles in the Canadian Constitution. However, the chances of amending the Act in Britain were remote and Indian politicians knew it. The Liberal government in Canada did not want to trifle with the Constitution because of the Accord reached with the Provinces amid great controversy and divisiveness November 5, 1981. Quebec's failure to agree to the terms and conditions of the accord was bad enough without allowing the Indians to get their fingers on it. The British government was very aware of the situation and weakly allowed the Canadian government to dictate the terms of the passage of the bill through Westminister. Government Members of Parliament declared that they did not wish to interfere with the "internal matters of another sovereign nation".

On February 17, the Joint Council passed a major resolution calling for a political solution and spelling out the process to be followed to achieve a mutually acceptable solution with the Federal government. Though the debate leading up to the unanimous acceptance of the resolution was long and heavy, the Council spelled out the terms and conditions of political solution to be reached in Canada. The political policy committee which had lain dormant for months was resurrected and Gordon Peters, leader of the small but vocal Association of Iroquois and Allied Indians, was appointed to chair the committee. Representatives from New Brunswick, Saskatchewan, Manitoba and Treaty 3 in Ontario sat on the committee. In order to lobby for a political solution, it was obvious much technical work had to be done quickly and the Joint Council needed a political arm to direct the work of the lobby in Ottawa. FSI Chief Sol Sanderson volunteered the services of Clive Linklator to serve as National co-ordinator on the technical side of the lobby. He agreed to the committee concept and urged the member technicians and politicians draft the Protocol Agreement.

"The ways and means by which Indian governments and the federal government interact has never been formally addressed", Chief Sanderson said, "A Protocol would be used to implement formal political action through the Canadian parliament and our own governments. It would lay out the conditions of intergovernmental action". Drafting the Protocol Agreement was a difficult task. For starters it was difficult for everybody to get a handle on what protocol meant, let alone come to a consensus on the process and principles to be included in the Protocol Agreement. The PPC met February 23 and 24 to hash out the draft of the agreement. Technicians Clive Linklator, Fred Kelly and Joe Saunders had worked on the First Draft prior to the Committee meeting. There followed a clause by clause, phrase by phrase study by representatives and technicians of the First Nations. Luckily the Indians sense of humour mitigated the intense debate and the pressing need for agreement over-rode any Nations's natural will to dominate the political philosophy and process put forward in the document.

As the Political Policy committee worked on one part of the political solution, events in Britain were shaping the next step. The Canada Bill had been referred to a Committee of the Whole which means that the House of Commons sat as a committee to study the Bill. This Committee was sitting February 23. On February 24 at 4:30 Ottawa time, Chiefs Eugene Steinhauer of the IAA and Sol Sanderson of the FSI as well as Robert Daniels of the Four Nations Confederacy called the PPC on a conference line from London where they had observed the debate of the Canada Bill in Committee.

The PPC was told that the British parliament had completed a lengthy debate the day before and that the debate was again dominated by Indian concerns. Chief Sanderson said there were indications in Britain that Prime Minister Margaret Thatcher was having a difficult time controlling her party M.P.'s "Half of her party want to speak to Indian concerns but they're muzzled" said Chief Sanderson. They said the British house had once again urged Canada to settle the Indian problem as they had during Second Reading of the Bill.

Chief Sanderson indicated that he had spoken with Jean Chretien earlier in London just after the debate. Chretien had indicated he was prepared to meet with representatives of the First Nations back in Canada. A meeting with Chretien could open the door to Federal/Indian negotiations before patriation. They recommended that a letter of intent be drafted immediately to spell out what the terms and conditions would be for a political solution. "We have to show over here", Sanderson said, "that we are moving toward a political solution in Canada". When asked about the status of the FSI and IAA amendments, they agreed there was not much hope for their being adopted in Britain and that the letter of intent should take precedence over other means.

The Political Policy Committee met again March 2 in Ottawa to finalize the draft Protocol and the letter of intent. Co-ordinator Clive Linklator had spent the weekend contacting senior government bureaucrats and cabinet ministers to follow up on the verbal promise Jean Chretien had made in Britain

Towards A Political Solution

Beth Cuthand

to meet with the First Nations. Chretien's "promise" eventually proved to be a puff of wind and the meeting never materialized.

In the meantime, Prime Minister Trudeau had not replied to a February 17 letter from NIB Acting President Sykes Powderface calling for a meeting. Governor General Ed Schreyer had not followed up on an earlier commitment to use his influence to urge Trudeau to meet with Indian representatives.

The Joint Council met again March 3 and 4. Once again the debate was heavy. IAA representatives, Helen Gladue and Sam Bull spoke against the political solution. They feared public acknowledgement that Indians were seeking a settlement of Constitutional inadequacies through a political forum in Canada would have a detrimental effect on the London lobby. Doug Cuthand, first vice-president of the FSI, took the opposite view. He said, "The people we lobbied in Britain support a political solution in Canada. They will delay to give us time over here. The British Parliament has thrown the ball in Canada's court and that is evident from the debate".

The Joint Council ratified both the draft Protocol and the letter of intent entitled: "Memorandum concerning the rights of the First Nations of Canada in the Canada Bill now before the Parliament and the Courts of the United Kingdom". The memorandum outlines the process for negotiation and the principles to be addressed. It was the first time that Indian Nations in Canada have made a comprehensive and united move to spell out the terms and conditions for their continued relationship with the government of Canada. The memorandum outlined 7 principles to be addressed by First Nations and the Federal Government. They are:

  1. Acceptance and confirmation of treaty and aboriginal rights recognized by the Proclamation of 1763 and the treaties and various settlements and agreements.
  2. Recognition of Indian Government.
  3. Establishment of Treaty and Aboriginal rights Protectorate office.
  4. Consent to any future amendments to the Constitution affecting aboriginal peoples.
  5. A "not withstanding clause" or right to opt out of the Constitution where it might infringe on aboriginal and treaty rights.
  6. Reasonable access to Federal and/or Provincial information and documentation.
  7. Indian government immunity.
The Memorandum defined a mechanism for political resolution. The Joint Council proposed that two negotiating teams be appointed. One would consist of the Joint Council and the other would be appointed by the government of Canada. "representative of the Cabinet and the three major political parties of the House of Commons and the Senate". They proposed that a chairman be chosen for or by each negotiating team and that the chairmen, "in joint consultation make the necessary arrangements for the respective teams in joint session". They further proposed that "officials and staff be so established to assist the respective negotiating teams in separate or in joint sessions so as to facilitate the negotiations."

The memorandum and a covering letter signed by Sykes Powderface calling for a meeting was sent to the Prime Minister March 4, 1982. The Joint Council gave Prime Minister Trudeau a deadline of March, 8 by which to reply to the memorandum.

In his reply dated March 8, 1982, Prime Minister Trudeau said, "I do not believe it would be useful for us to meet at this time for I do not intend to ask the Parliament of Canada or the provincial governments to amend the Constitutional Resolution before patriation".

The political policy committee continued to lobby the hill. They met with members of parliament and with the NDP and Conservative caucuses. Both leaders, Ed Broadbent of the NDP and Joe Clark of the Conservatives, agreed that a meeting between the Prime Minister and representatives of the First Nations was needed as soon as possible. Both committed themselves to writing the Prime Minister and agreed to support a political solution.

On March 23, third reading of the Canada Act Bill took place in the British House of Lords. The Queen in the right of the United Kingdom gave Royal Assent to the Bill March 29. The Queen in the right of Canada announced she would bring the Constitution to Canada April 17 and declare Canada's independence.

While the Queen was busy dividing herself, the British parliament breathed a sigh of relief to be rid of the Canada Bill; the First Nations doggedly continued to press for a political solution. The Joint Council met again March 31 and April 1 in Ottawa to continue their work toward a political resolution of Canada/Indian difficulties.

Is there a solution?

Is a political solution possible? Indian Nations' activities of the recent past indicate a willingness on the part of the First Nations to sit down and negotiate a meaningful solution. Because of the intense political lobbying of the past three years, the Constitutional patriation has been good for Indian Nations. It has forced us to address our relationships with one another. It has fostered an unprecedented growth in Indian political ideology. It has forced us to look at the. basis for our existing relationship with the rest of Canada and to address the process and principles of a future relationship. Amid this fast growth and rapid change, the timelessness of Indian existence in this land gives us hope. Time is on our side and whatever history has been made in the-past few years is a mere drop in the ocean of time. The "Pierre Trudeaus" and "Margaret Thatchers" of this world come and go, but the will of the First Nations remaining distinct entities in our own land is defined by occupation of the land since time immemorial.

A political solution which recognizes a just and lasting place for the First Nations in Canada is the goal of the First Nations.

We have the right to expect no less.