Tag Archives: Pierre Trudeau

The Prime Minister’s Indigenous Rights Framework Changes Nothing

Indigenous people have had to fight for recognition of every right we have. And we always will.

✎  Wayne K. Spear | February 15, 2018 • Politics


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N A WEEK WHEN Indigenous people announced that reconciliation is postponed, if not cancelled, the Prime Minister sprinkled us with the sunshine of his forthcoming legal framework on Indigenous rights. Mr. Trudeau used bold words like engagement and implementation, even uttering the C-word, and claimed that his government would complete the unfinished business started by Trudeau the Senior, with the repatriation of the Constitution.

The fashionable words were all there: rights, recognition and engagement, partnership and reconciliation. Not any, old partnership, but full partnership—a new relationship with First Nations, Inuit, and Métis people. Team Trudeau even had social media hastags, like #IndigenousRights and #decolonization. What a historic reconciliation engagement of full partnership respect recognition historic rights day it was.

A little background might help. Never forget that the federal government didn’t give Indigenous people Section 35 of the Constitution. Indigenous people—natives, as we were then known—weren’t even invited to the conversation, at first. Pierre “The White Paper” Trudeau had no appetite for discussing native rights, which in his view were simply the rights of all Canadians, and made no mention of a Section 35 in his 1980 proposal. Indigenous people made a stink, and you know the adage about squeaky wheels and grease. Eventually the Indian politicians got a seat at the table, and quite a few native people protested that, too, not wanting to be a part of whatever dirty work they suspected the feds were up to.

I’m not an expert on what happened next, but I’ve talked to every AFN National Chief involved in the repatriation talks and beyond. The Assembly of First Nations led the charge for recognition of inherent Indigenous rights, and met the resistance of Team Trudeau and the provinces, who whittled a much more robust series of proposed clauses into the now-familiar language of Section 35:

35.(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada. (3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

The resource-extraction provinces, particularly Alberta, took the position that Section 35 (existing aboriginal and treaty rights) was an empty box, to be filled in the future at the discretion of the courts. The premiers had seen similar work in Australia, where existing Aboriginal rights were interpreted to mean rights that come into existence, from this moment forward. But of course that’s not how it’s gone in Canada. Indigenous people have taken their Section 35 rights to court, over and over again, and fought like hell to get our rights into the box. And in many instances, certainly more than Canada would have preferred, we’ve won.

Constitution Express

The Section 35 fight for Indigenous rights, recognized and affirmed by the Constitution of Canada, has been a restless work from 1982 to the present. The view that we’ve made progress is not universal, with people like Mary-Ellen Turpel and Art Manuel and Russ Diabo arguing that the post-Section-35 world is a colonial world, just like it was before. Instead of Indigenous sovereignty over our lands and resources, and a nation-to-nation relationship with Canada, colonial interpretations of Section 35 give our communities municipal powers and brown bureaucrats. We can choose the day Rez garbage will be picked up, and our signs say Tésta’n instead of STOP. We get to say Yes to pipelines, and if we’re lucky receive a share of the take, but we don’t get to say No, because we are a minority sub-sect of Indigenous-Canadians.

What we all agree on as Indigenous people is that we’ve had to fight for everything we’ve ever had. Someone once said that government doesn’t give you your freedom, you have it already—if you exercise it. That’s true of all people, but it’s doubly and triply true for Indigenous people, who would have vanished entirely, like a narrow river into the ocean of Canada, if things had gone as originally planned. There isn’t an Indigenous right on Earth that we’ve been given by a colonial government, and there never will be. And Trudeau’s rights framework changes nothing.

The great achievement of the Charter

Canada's Charter of Rights and Freedoms

I neither have a horse in, nor would desire to enter one into, the race between Alberta’s Progressive Conservative candidate Alison Redford and her Wildrose rival Danielle Smith. My interests furthermore were of no concern in the American Senator Roy Blunt’s “conscience amendment” — appended to a transportation bill in response to President Barack Obama’s mandate to extend employer health coverage to contraception. In these and many other related developments around the world I am a mere observer, and so I might well say, and would prefer to say, “Best of luck to you” — and leave it at that. Unfortunately, this stuff is in the air. Wherever you happen to be, the winds are blowing in your direction. The principle of minding one’s own private business is now on a course of collision with the incipient work of fitting the square pegs of public policy into the round holes of private conscience.

Thirty years ago Queen Elizabeth II authorized the Constitution Act, thereby entrenching the Canadian Charter of Rights and Freedoms. Whatever your view of the Charter, the work of sorting out intrinsically incompatible world views and notions of personal rights, and balancing these against the public interest, is the core challenge of our generation. Today this rights challenge arrives in multiple forms, from petitions for accommodation of Sharia to endorsement of gay marriage. Each challenge must be met individually, on its own merits or lack thereof. As the Wildrose candidacy of Edmonton South’s Allan Hunsperger this week drifts onto the media’s front pages, I am reminded (as if I needed a reminder) of the living notion that homosexuals will “suffer the rest of eternity in the lake of fire, hell, a place of eternal suffering.” A conscience of a definite kind may be inferred from this assertion, and while it’s light years from my own, in my view there must be peaceful co-habitation of the skin of this Earth by the differently thinking, whenever this is both principled and possible. Now that the Wildrose party is proposing to institute a conscience-based alternative to the Alberta Human Rights Commission, I find myself keen to know what folks like Allan Hunsperger — the avid compilers of lists of the hell-bound — mean to do with it.

The balancing of competing rights and interests will stand as the supreme object of policy deliberation, at least until the world’s ideology-driven moral police get the upper hand. Balance may seem the tepid object of soft-headed middle-of-the-roaders, but in fact it requires moral courage. In the case of President Obama’s contraception health coverage mandate, there was earlier this year a widely perceived over-reaching of state power and a concomitant infringement of religious rights, thereafter succeeded by a compromise. Obama’s conciliatory conscience exemptions, although imperfect, satisfied many — but not all. The few holdouts, one could argue, were simply adhering to their own internal logic: if you are of the conviction that contraception is immoral, how it is paid for is irrelevant. The necessary thing is to keep others from having it. Once engaged on this issue, the most vocal and obdurate opponents seemed hardly to care for a compromise. But the extremists as a rule fail, because they do not represent a credible way forward. The unpleasant truth, if you happen to be an anti-contraceptives Catholic bishop, is that lay Catholics have their consciences too — and that by means of these consciences they have found contraception to be quite compatible with morality.

The Charter of Rights and Freedoms is not a perfect document, but what in this human world is perfect? Present-day criticisms of the Charter, and of related institutions and legislation such as the Canadian Human Rights Act, demonstrate the necessary work of seeking reasonable and principled balance. Those who wish to discuss and critique and engage in heated disagreement uphold the very principles of human rights, dignity, and freedom. Those who seek to impose their views on others, by means of violence or subterfuge, uphold only their selfish will.