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Background To The Constitutional Talks

Prime Minister Mulroney smoking peace pipe
Opening ceremonies included a pipe ceremony, here Prime Minister
Mulroney partakes while Ontario Premier Peterson looks on.

The Indian Nations of Canada occupy a unique position within the Canadian Confederation. We are within Canada but we are not yet a part of Canada.

The recent First Ministers' Conference in Ottawa failed to resolve the issue and the Indian Nations remain unrecognized by the rest of the country.

Indian Nations were originally recognized in the Royal Proclamation of 1763 issued by King George III. The Royal Proclamation stated that the colonies of British North America would not disturb the Indian Nations and the Crown would be responsible for and deal with the Indian Nations.

In 1867 when the British North America Act was brought into law, Section 91(24) stated that under its areas of jurisdiction and responsibilities the federal government had the responsibility for "Indians and lands reserved for Indians". This section in the BNA Act maintained the responsibility for Indians at the level of the senior government.

It was following Confederation that the numbered treaties were negotiated between the Indian Nations and the Crown as represented by officials for the federal government.

That situation remains in place to the present day. The federal government has attempted to transfer rights and services to the province but these moves have always been resisted.

In 1969, the federal government issued a white paper on Indian policy that simply put, dumped the Indians on the province's doorstep. The'69 White Paper quickly became the watershed of the modern Indian movement across Canada.


It had been known for years that the federal government wanted out of the "Indian business". The 1969 White Paper spelled it out and the lines were drawn.

Prior to the '69 White Paper, the Canadian government policy had been one of "detribalization". Under this system, Indian religion was outlawed, children were removed from their families and placed in boarding schools and all political activity was discouraged including the election of Chiefs and Councils. Indians were disenfranchised and Indian reserve land was sold. Indians were called the vanishing race and it was considered "they" had no future.

This policy was actively pursued up to the second world war. The second world war saw Indian men sign up and join the army in record numbers. Suddenly a large and important portion of the Indian population had traveled the world and had been treated as equals. They came home and demanded the respect they deserved. The detribalization policy was dead and Indian agents were referred to as "Little Hitlers". The Indian veterans went on to form the leadership at the band, provincial and national level. The veterans laid the foundation for the contemporary Indian political movement.

In 1947, a series of hearings were held to change the Indian Act. Various delegations of Indians made presentations. Their advice focused on the treaties and was largely unheeded. Instead, a plan presented by Dr. Diamond Jenness, an anthropologist, called for the liquidation of Canada's Indian problem within 25 years. The plan called for the wholesale enfranchising of Indian bands, the sale of Indian lands and the end to all vestiges of separate and special status Indians might enjoy.

This racist policy was embodied in the Indian Act of 1952 and Indian policy for years to come.

In 1969, the White Paper policy on Indians was no surprise. It had been coming for a long time.

Canadians have never come to grips with their relationship with the aboriginal peoples. On one hand provinces and cities and towns have Indian names, but the Indian fact as participating members of Canadian society with special group rights based on Treaties and Aboriginal rights has never been accepted.

Throughout the 1970's, the situation between Canada and Quebec was unsettled to say the least. The whole matter came to a head in 1981 when the Partie Quebecois called the referendrum on sovereignty association. In the debate that followed, the Federal Government led by Pierre Trudeau promised the patriation of the BNA Act, a Charter of Rights and Freedoms and a negotiated role for Quebec within confederation.

Following the defeat of the Partie Quebecois, positions in the referendrum and the return of Pierre Trudeau and the Liberals, after a brief six months Conservative stint in power, the Government announced its plan to patriate the constitution.

The Indians then proceeded to organize and lobby on several fronts.

Most significant was the development of a national Chiefs' lobby. In July of 1979, over two hundred Chiefs and councillors from across Canada traveled to London, England to lobby the Indian position and to urge that the BNA Act not be sent to Canada without the recognition and the entrenchment of Indian Treaty and aboriginal rights.

Demonstrations outside the meeting
The usual demonstrations took place outside the meeting: note the license plate on the Prime Minister's car.
Photo by NACS


While over in London, the Chiefs met and held the first national Chiefs Conference in history. At that meeting, several motions were passed calling for a London Chiefs office and to pursue an international lobby.

In the spring of 1980, the first national All Chiefs Conference was held and the Assembly of First Nations was born.

In politics, like football, the best defense is a good offense. Instead of only proposing and intellectualizing the issue, the Chiefs proceeded to implement Indian government by establishing the Assembly of First Nations.

In addition to political organizing the Chiefs proceeded to the lobby in Ottawa and London. It was becoming clear to the government that the Indian voice should be heard.

In the fall of 1980, under pressure from the aboriginal organizations, non-native interest groups and private citizens, the government established a joint Senate Common Committee to hear submissions.

Over the span of the next several months, aboriginal groups, including the AFN and FSIN presented their positions. In February of 1981, the historic decision was made to include section 34 in the Charter of Rights and Freedoms, including a commitment to follow up with a First Ministers' Conference to define the rights.

Under closer scrutiny, it was discovered that under the terms of the amending formula section 34 can be revoked by the majority of the Premiers. It becomes apparent that treaty rights are "temporarily" recognized. The London lobby was continued.

By the fall, we were faced with another set back. Trudeau and the provincial premiers announced the historic accord on the Constitution. In the process Indian rights have fallen through the cracks and were eliminated from the charter. The result was swift and forceful with a number of large demonstrations held across the country and in Ottawa.

Later section 34 was reinstated but the term "existing" was used to decide what treaty and aboriginal rights are affirmed. To this day, nobody seems to know what that means.

In spite of all the activity, the original problem remained and we must continue to press for a permanent recognition of the treaties.

Electronic democratic participation. Zebedee Nungak
Electronic democratic participation. The over flow crowd watched the event unfold on a video screen
in another part of the building. One observer
remarked, "I could have stayed home and got the
same impact."
Zebedee Nungak who describes himself as, "a simple village Eskimo" addresses the Premiers flanked
by his children.


However, in spite of our best efforts in the spring of 1982, the BNA Act was repatriated, our "existing" rights were enshrined in the charter of rights and freedoms and during a crashing thunderstorm in Ottawa, the Queen signed the Canadian Constitution into law.

We then prepared for the First Ministers' Conference scheduled for spring of 1983.

It was widely acknowledged that the western Indian organizations who led the London Lobby forced the Canadian Government to the table for the historic First Ministers' Conference.

The First Ministers' Conference of 1983 raised the awareness of the average Canadian like no other event before. For two days the aboriginal leaders and the premiers debated on national television. The Indian message was carried to every Canadian home. All the Premiers were forced to address the assembly and be made aware of the issues.

Prime Minister Trudeau in his opening address, repeated the Federal position that assimilation was out, as was total Aboriginal sovereignty. Somewhere between these two, he stated, lay a possible agreement. The parameters were such that negotiating room was available.

The most significant development, however, came when the Prime Minister stated he was prepared to accept a form of Aboriginal Government within Canada. He said it was a "thorny issue", but one his government was prepared to address. Again this move was interpreted as opening up the conference. He called for "frank and open discussions". He said he was open to further meetings on Aboriginal rights and suggested either two conferences over two years or three conferences over three years.

The Prime Minister's address temporarily lifted the fear that Indian rights would be unilaterally dismantled. Most Aboriginal leaders felt there was reason for cautious optimism.

The meeting dragged on with 16 delegations around the table. Much of the time was taken up with presentations. However, it soon became clear that the aboriginal leaders and the Premier were coming from two different directions.

The provinces, as predicted, balked at awarding the Aboriginal delegations a consent clause. Most agreed Indians were a Federal trust responsibility. The Premiers either supported an ongoing process or stated they would not stand in the way of one.

Saskatchewan Premier Grant Devine would not agree to Indian sovereignty nor would he support a consent clause. He stated there were two forms of government in Canada, the federal government and provincial governments. He concluded he would not support a third.

On one hand the aboriginal and treaty leaders felt that they were coming to the table with their rights defined under treaty and the Royal Proclamation of 1763. In other words, they had a "full box."

The Premiers, on the other hand, had felt it was up to them to define the rights and "grant" them to the Indian Nations. In other words, they felt that the aboriginal groups came to the table with an "empty box".

One of the more memorable events came as the Premiers and the Prime Minister were trying to come to grips with aboriginal terms and definitions.

The Prime Minister asked the AFN what they meant by "Aboriginal Title."

The AFN chose James Gosnal, a Nishga senator from British Columbia to respond. The Nishga have been petitioning governments both in Canada and Great Britian for over a century to formally recognize Nishga title to their homeland, the Nass River Valley. The moment must have been very important to him as it was the first time in a century a government had asked the Nishga what Aboriginal Title meant. Gosnel rose to the occasion and proclaimed in no uncertain terms, "We view as ours what is beneath the land. What is on the land. What is above the land to the stars above ... We own it lock, stock and barrel." He concluded God had given certain lands to certain people and that his land was his because it was God granted.

The 1982 FMC developed an accord calling for two more Conferences and the recognition of the Crown/ Indian relationship as set forth in Section 91(24) of the BNA Act. Briefly, the following was contained in the accord.

- A Constitution conference made up of the Prime Minister, the premiers of the provinces and the aboriginal peoples of Canada shall be called within one year.

- The elected representatives of the governments of the Yukon and Northwest Territories shall be invited to attend the next constitutional conference.

- Amendments to the Constitution Act, 1982 will be put before the Senate, House of Commons and the Provincial Legislatures no later than Dec. 31, 1983.

- Meetings to prepare for the Constitution Conferences shall be called every year to include ministers of the governments of Canada, the provinces and the territories and representatives of the aboriginal peoples of Canada.


- Section 91/(24) of the Constitution Act, 1867 says the federal government is responsible for " Indians and lands reserved for Indians." This accord does not interfere with the Indian/ Crown relationship provided for in Section 91/(24) and any bilateral agreements that may come into being between the Parliament and government of Canada.

- This accord will not affect the interpretation of the Constitution of Canada.

Looking back, it becomes apparent that we have come a long way in ten short years.
While Canada has made steps toward completing nationhood, the Indian Nations
have made a quantum leap.

The other two First Ministers' Conferences were anti-climactic. The Assembly of First Nations got the important bilateral process placed in the accord and the Crown-Indian relationship remained intact.

There is still a lot of work to be done but from now on it will be done without the Premiers being involved. The refusal to recognize Indian government on the part of the premiers, particularly the western premiers, has led to a situation where they have effectively dealt themselves out of the process.

The work to be done is described later on in this magazine, however, it includes the federal law review, the continued development of Indian Government and the acceleration of the bilateral process.

Looking back, it becomes apparent that we have come a long way in ten short years. While Canada has made steps toward completing nationhood, the Indian Nations have made a quantum leap.

Who would have thought that our treaty rights would be entrenched in the Constitution and that we would capture nation-wide attention at the First Ministers' Conference?

The next ten years will see us complete this process.