August 23, 1996 Halifax Herald

Constitutional tinkering jeopardizes First Nations

During the 1969 sitting of Parliament, Jean Chrétien, the Trudeau government's Indian Affairs Minister, introduced a Bill which had as its goal the repeal of Section 91(24) of the Constitution. The repeal of the Section would have ended the federal government's constitutional trust responsibility for Indians and Indian lands. The pertinent Section reads as follows:

“91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces;...the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, . .

(24) Indians and Lands reserved for Indians.”

Dubbed the "1969 White Paper" by its opponents, the Bill, after being given an almost unanimous thumbs down by First Nations citizens who were objecting strongly to its assimilation intents, was withdrawn. If the legislation had been enacted, it would have been a clear-cut disaster for Canada's First Nations. These distinct cultures, already threatened by the values of the alien culture which surrounded them, would have been forced into full assimilation without the shield of constitutional protection.

Before continuing, it must be mentioned that rarely, if ever, did Pierre Trudeau drop a goal he had set for his government; if something presented a barrier to achieving his ends, he found a way to overcome. Therefore, in 1981, when repatriating the Constitution, his government inserted the word "aboriginal" into Section 35. For a lay person, the word probably seems harmless enough; but Trudeau, being a very intelligent person and a lawyer, must have foreseen that this ambiguous language would spell immense legal problems for First Nations and pave the way for their eventual assimilation.

This is how Section 35 defines an aboriginal person: “(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples...” The negative fallout from the vague wording of the definition is that by the inclusion of the word "aboriginal" the Section has created a new race of indigenous peoples called "aboriginals." These people, who have not seen fit to place themselves under the jurisdiction of the First Nations, from whom they claim to have been borne, are being unilaterally granted aboriginal and treaty rights by federal and provincial governments.

In contrast to First Nation and Inuit communities where membership is clearly defined, and linage into antiquity is acknowledged, there is no clear definition of who is an aboriginal person. A testament to how loosely the federal government defines an "aboriginal" person is this definition issued by Employment and Immigration Canada: "...refers to a person who PERCEIVES himself/herself to be a Status Indian, Non-Status Indian, Metis or Inuit and who is accepted as such by the local Native community." One key question, among others, is: what local Native community?

Resulting from the unclear wording of Section 35, close to two million Canadians who have no established ties with First Nations are claiming to be "aboriginal." One of the major negative fallouts stemming from the influx into the system of these "Aboriginals" is that it is playing hell with the funds which traditionally have been set aside for the people who are in dire need - First Nation and Inuit peoples. Funds are now being siphoned off for the use of the constitutionally created "aboriginal."

Added to the funding concerns, the loose interpretation of the word "aboriginal" has also triggered negative court decisions which infringe upon and negate the aboriginal rights of the First Nations. Two of these decisions were handed down by the courts over the past few weeks.

An Ontario court ruled that the province must, in addition to the deal it has struck with the province's First Nations, share profits from casinos with Metis and non-Status Indians. Then, adding more fuel to the legal mess created by the ambiguous words of Section 35, a Saskatchewan court ruled that Metis have aboriginal hunting and fishing rights. As both the Metis and non-status Indians have been largely assimilated into Canadian society, these decisions spell bad news for the retention of aboriginal rights by First Nation and Inuit peoples.

If, on appeal, these decisions are upheld, it will be in the realm of possibility that a Canadian government can go to court and seek a ruling which will declare that the indigenous peoples of Canada have been assimilated and, as such, are no longer entitled to special rights and protections pertaining to their ancestry. After all, from the groups who make up the new "aboriginal" tribe, or are qualified to join it, there have come people who have occupied very high offices, including Trudeau who, as part Cree, has filled the office of Prime Minister. Therefore, if these people are adjudged indigenous, and First Nations and Inuit peoples are lumped in with them, how can Native peoples claim to have been excluded?

When legal procedures, devised by the white man, permit individuals who are not members of First Nations, or qualified to become members thereof, to become beneficiaries of the rights and privileges traditionally reserved for those who are members of First Nations, it is proof that something is rotten in the apple barrel. The Constitutional tinkering which has placed in jeopardy the very existence of the First Nations is not legally or morally defensible. Therefore, the ambiguous wording contained in Section 35 of the Constitution must in good conscience, be removed forthwith by the politicians and be replaced with concise language.

Daniel N. Paul


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