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Background To The Constitutional Struggle

London Lobby
The London Lobby; here Chief Sol Sanderson and Senator John Tootoosis meet with two M.P.'s.

"Our treaties stand for something very powerful. We should never be scared. We should never give up."

- FSIN Senator Gilbert Bird

A series of First Minister's Conferences addressing Aboriginal issues were set in motion following the creation of a made in Canada constitution.

The First Ministers of Canada include all provincial Premiers and the Prime Minister. They are talks at the highest level. The constitution of a country is the basic law of the nation. These guidelines define how the country is run, the powers of governments within it and the rights of individual Canadians. No other law can be made, which does not conform to Constitutional law. As such the constitution impacts directly on future relations between Aboriginal peoples and all other Canadians.

The constitution can either raise road blocks to rights or formally recognize them. It is very doubtful the First Ministers have the power to entirely extinguish rights. International law and the strength of the treaties would forbid such a sweeping move. However once these rights - in whatever form - are in the constitution it will be extremely difficult to change them.

A constitutional amendment requires the agreement of six provinces representing at least 50% of the Canadian population.

Canada's Aboriginal people have a lengthy history of special status and rights. This history is important. It provides Indians with a strong legal precedence. There is some fear among Indians that the government will try to take away these rights in constitutional talks. The treaties, however, have been tested before and have proven strong such as Indian hunting rights cases. These rights give a degree of protection , - indeed strength, - to the Aboriginal peoples going into the talks. The constitution recognizes the Aboriginal peoples as being the Indian, Inuit and Metis. The FSIN believe the Indians have the strongest position because of the treaties. The Inuit have never signed a treaty but they still have "aboriginal title" over large areas of northern Canada. They are now entering into land settlement negotiations which will likely result in a treaty like agreement. The Metis probably have the most to lose or benefit from Constitutional talks. They have no formal rights. Their recognition as an aboriginal people was a significant victory in itself.

The constitution or fundamental guidelines of a country are really based on a long history of laws that came before. This is particularly true of Great Britain, whose parliament can be traced back to King John in 1215 and the signing of the Magna Carta. The Magna Carta meant the King no longer ruled alone but had to accept decisions made by the first of the English parliaments or in other words elected council. The King found this arrangement most annoying and it was considered a very radical move in its time. Canada due to its close colonial ties, inherited much of the British parliamentary system.

Prior to a made in Canada constitution the British North America Act served as the country's constitution. The BNA Act was a made in Britain constitution designed for the then semi-dependant colony of Canada. Now that Canada is stressing its independence, outdated ties with "Mother Britain" are being cut. The Federation of Saskatchewan Indian Nations was not against patriation provided the constitution included inherent Indian rights such as treaty rights. Once again a country's constitution can not be separated from the country's legal history. It is more appropriately the product of that history.

If the complex constitutional issues are cut to their barest bones what emerges is really two positions on Indian rights. A Treaty is a two party agreement. Nations make treaties. Treaties do not make nations. Therefore there is the Indian position and the "crown's" position. A treaty, almost by definition, is a partnership. The Federation of Saskatchewan Indian Nations position on treaties is remarkable in that it has not changed since the treaties were signed. Indeed, when the FSIN was founded in 1958, its first mandate was "the protection and enhancement of treaties". What has changed is the Federal governments' position. It has come full circle from the blatant attempts to do away with treaties to the more constructive approach of implementing their spirit and intent. The Crown's position has come far closer to the Indian position. The Indians's treaty partner, the "crown", has changed since the treaty was signed. On this point and in understanding the complexities of constitutional talks it is important to understand the history of Indian rights and the how and why they came into being.

"Aboriginal title" basically means the ownership of land and resources by Aboriginal peoples. Aboriginal rights come from aboriginal title. The aboriginal peoples believe their tribal lands were given to them by God and only recognized as such by the Crown's laws. The Indians felt then and now the government could not "give" anything which did not belong to the Indians to begin with. This is a very important point.

Background To The Constitutional Struggle

First Nations Constitutional Conference
The A.F.N. was born in Ottawa in the spring of 1980 as a result of the need to be heard in the constitutional debate.

Chief confronts Trudeau
Relations with the Chiefs and the Prime Minister became acrimonious. Here Chief Wayne Christian of the Shuswap Band confronts Trudeau during a demonstration in Kamloops, B.C.

The "crown", at the time when Indian rights were first recognized by another people, was a English King who declared by the Royal Proclamation of 1763 that Indian land could not be used for European settlement until the affected Indians agreed. The English King did this for some very practical reasons. The health and welfare of a people he never met was not likely among them. Britain's claim to the new world was questioned by other colonial countries. Britain was also making a lot of money from trading with the Indians. In short Britain needed Indian allies. And nothing gets Indian so mad, then and now, as land theft. In any case the Royal Proclamation paved the way for the signing of Treaties - a process that may either have ended with the signing of Treaty #11 in 1921 or is still ongoing. The Federal government states the treaty making era ended in 1921. The Indians believe it is still on going.

A lengthy book or rather books could be written on the Indian version of the Treaties. It is enough to say Indians then and now believe we entered treaties in our own right. The treaties did not make us the "subjects" of the Crown but rather the partners of it. It was an interdependent arrangement, both needed each other.

One of the most misunderstood ideas about treaties is why they are called "sacred". The treaties are not sacred in the sense of the dried ink on a colonial piece of paper. What is sacred is the vow the Indians made and demanded of the government before they would sign the treaties. Once again there is the Indians understanding of the treaties and the Federal governments understanding of them. One is not complete without the other.

All of which brings us back to the constitution. In the long history of treaty signing Indians believed they made their treaties with the "crown". The crown being the King or Queen. The BNA Act said, under section 91.24, the Federal government was responsible for "Indians and land reserved for Indians". The Indians understood this to mean the Federal government was responsible to the King or Queen in making sure the treaty promises were kept. Section 91.24 also meant Indian rights could not be changed by the provinces. Saskatchewan Indians have always said the provinces have no say in treaty rights. But more of that later.

When Canada's made in Canada constitution was agreed to in Canada they still needed Britain's approval. Everybody except the Indians thought this would be a simple matter. What followed was one of the least known but strongest stands the Indians have ever made. We now know it as an Indian victory. Indian rights as expressed by Indians fell on listening ears. The result was lengthy debate in the British parliament on Indian issues. Most annoying to those British parliamentarians trying to quickly pass the Canada Act and the Canadian government was the Indian's British MP allies insisting the Crown referred to the British Crown. This action raised the issue of Britain still having a say in how Indians were treated. The British MP's used this issue to good effect. Canada was embarrassed and pressured into behaving more responsibly. The issue was settled, but not entirely to the Indians satisfaction, when it was declared the "crown" was divisable. Under this new arrangement the Indian treaties fell on "the crown in right of Canada" rather than "the crown in right of Britain". If the crown as it affected Indians was such a hot potatoe, the Indians wondered where it would end. A crown in right of Saskatchewan, for example would be totally unacceptable.

A time of crisis can also be a time of opportunity. Saskatchewan Indians know the treaties are strong.

The Indians had succeeded in squeezing out of the government a commitment to fully discuss Indian rights in the new constitution. Under section 37.1 of the Canada Act the government agreed to hold a First Ministers' Conference on Aborigional peoples issues within one year of the Canada Act being signed. This took place in 1983. It was a most historical step. If only one thing was sure and certain it was that the Aborigional peoples could no longer be ignored.