It’s an exciting time to be a lawyer, and an even more exciting time to be practising aboriginal law.
When I was at law school (my daughters tell me to never start a sentence this way, but it’s too late now), the Calder v. Attorney-General of British Columbia case had just come down, but there was no Charter of Rights and Freedoms. Just a few years earlier, the Chrétien/Trudeau White Paper had been floated and shot down, and with the Calder case the federal government finally had to recognize that treaty and indigenous rights had some meaning, and, even more, their absence no longer meant all title fell automatically to the Crown.
As luck would have it, I was a Member of the House of Commons when the Charter was debated, and remember well the discussions and negotiations around s. 35 and the valuable references to the Royal Proclamation. Some protested no one knew exactly what the implications of these changes were, but in fact we knew full well we were making progress in reducing the unilateral prerogative of governments.
The failure of the next round of discussions between the Crown and First Nations had two major effects: it hardened aboriginal opinion against the Meech Lake Accord, and led to the Royal Commission on Aboriginal Peoples. It also meant the premiers had no choice but to insist on full aboriginal participation in what became known as the Charlottetown round of discussions and the Charlottetown Accord. That accord was a breakthough in recognizing an indigenous right to self-government, but at the same time, its rejection in a referendum meant the courts would be pressed even further into service, which is precisely what has happened.
The groundbreaking decisions in Delgamuukw v. British Columbia and more recently the Manitoba Métis Federation Inc. v. Canada (Attorney General) decision have set out clearly the court’s insistence the Crown has an obligation to consult and accommodate legitimate First Nations’ interests, and that the phrase “honour of the Crown” is not an empty rhetorical gesture.
At the bargaining table, considerable progress is being made in advancing both the economic and political cause of aboriginal people — from Labrador to British Columbia. Self-government agreements, extensive land claim accords, transfers of tax points — it’s all happening.
An important current challenge is that progress is actually much slower in the so-called “treaty provinces,” where a “miserly interpretation” of treaties by the Crown, both federal and provincial, has prevailed, and the First Nations concept of treaties as reflecting a “sharing of the land, water, food, and resources” has not been embraced at all by the Crown. On the other hand, the notion that First Nations would surrender all rights and claims in exchange for a few dollars a year and forced confinement on tiny tracts of land seems implausible unless the deal was forced upon them.
There is a growing body of historical evidence that, in fact, the written treaties as interpreted by the Crown were forced on First Nations. They were, for the most part, take-it-or-leave-it documents that were matched by real economic hardship. The phrase “starved into submission” is tragically accurate.
Documents signed under pressure are hardly a reflection of the Crown acting honourably, and it is increasingly obvious to all that the status quo is not working at all. Small remote communities in the north of the treaty provinces are among the poorest of the poor, and have few means of escape, as neither the federal government nor the provinces have shown the imagination to break through jurisdictional barriers and create new opportunities for effective self government. Land, revenue, capacity — these are all key to real progress, and without them there will be little chance for an end to poverty and hopelessness.
The frontier of economic development is now heading north and west, and this provides the potential for economic leverage in breaking the logjam.
So . . . an exciting time to be practising aboriginal law! Change will come — it will require effort and imagination, but it will come.
Guest columnist Bob Rae is a partner at Olthuis Kleer Townshend LLP, and a former premier of Ontario and interim leader of the Federal Liberal Party.