Mercredi’s Legacy

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Monti, L. “Mercredi’s Legacy”
The New Federation 5.2 (1997): 12-14.
Mercredi’s Legacy

by Lorne Monti
Looming in Canada’s future is a crisis in national unity which dwarfs the issue of Quebec separation and has lain festering for several centuries: the legitimate notion of Aboriginal self-government. In the wake of the Report of the Royal Commission on Aboriginal Peoples, and given that relations between Aboriginals and non-Aboriginals can best be described as strained, new federation has asked former Grand Chief of the Assembly of First Nations, Ovide Mercredi, and retired Supreme Court Justice and member of the Royal Commission on Aboriginal Peoples, the Honourable Bertha Wilson, for their perspectives on the prospect for a reconciliation between the two communities. The question is whether the Royal Commission Report on Aboriginal Peoples provides an acceptable platform on which to base a reconciliation between Aboriginals and non-Aboriginals in Canada.
It’s never too late,” declares Chief Mercredi warily, “if people wake up to the need for change. But if we have governments that are intent on maintaining the status quo, there’s no hope. To me it’s a basis for discussion, it’s a basis for developing a path for reform but it’s also a foundation for reconciliation.”

Judge Wilson agrees the Report is a good foundation upon which to base a reconciliation and she is hopeful when she says, “I think, as you move around the country and talk to people, there’s a high measure of sympathy for the Aboriginal people, and there is a feeling that they have not had a fair deal.”

One of the major obstructions to progress is the Federal government’s failure to substantively address the issues of the Report. The government appears to have buried it faster than Vesuvius covered Pompeii. “It’s discouraging to be met with just silence from the Federal government. I find it quite shocking,” admits Judge Wilson. Although she is optimistic that with Jane Stewart, the new Minister of Indian Affairs, in place, things may start to happen, any hope of success is going to require more than just lip-service on the part of the Minister. “I’m also hoping very much that the general public will start to take more of an interest,” continues Judge Wilson, “of course, you can’t get governments to move unless the public compels them to move; that’s the only pressure there is in government.” But she admits she does not know what it will take to engage the electorate.

Nevertheless, ignoring the issue of Native self-government has never made it disappear. It has only served to make moderate aboriginal leaders more militant and natives in general more discontented. “As long as we have people like Jean Chrétien, and their vision of this country that it doesn’t need to be perfected, that it is perfect, that it doesn’t need to be reformed, then we are in trouble,” warns Chief Mercredi. “We are in trouble for two reasons: one is my people don’t think it’s perfect. The other reason we’re in trouble is because, in the province of Quebec, the separatist movement will just be fueled by the argument that Canada is perfected and it doesn’t need to be reformed.”

Given that Aboriginal discontent with the status quo has been percolating for several centuries, the Report is relatively moderate in tone. To describe its entire content would be impossible here; however, there are three familiar tenets upon which Aboriginal demands of both Federal and Provincial governments are based: the recognition of Aboriginal nationhood status, the return of a viable land base to Aboriginals, and the implementation of Aboriginal self-government.

The Report points out that when Europeans first came to Canada, they negotiated with aboriginal peoples by the use of treaties on an equal, nation-to-nation bases. These were essentially contracts between the Crown and sovereign aboriginal nations, of which there were at least fifty. As the balance of population shifted, this relationship of mutual sovereignty disappeared while Europeans continued to occupy the land base, ignore treaties and relegate aboriginal nations to small reserves. Finally, late in the nineteenth century, Aboriginals, without their consent, were made wards of the state by the passage of the Indian Act. As a result, fifty great aboriginal nations were divided into countless reserves and band councils barely existing on an inadequate land base.

From the Aboriginal point of view, recognition of nationhood status is foundational to a rapprochement between Native and non-Native cultures. “I think nationhood is absolutely fundamental to our survival as a people. If we don’t try to retain our own distinct status as nations, as indigenous nations in North America, then we are also going against the grain in terms of the evolution of political freedom in Central and North America. Here in Canada, as well as in the United States, we will not be able to ever take back our continent. The most we can do is regain some territorial base over which we will have sovereignty as a people, as nations, and then maintain a relationship nation-to-nation with the rest of the country,” observes Chief Mercredi.

The crucial keystone on which the feasibility of self-government rests is the return of an Aboriginal land base. The Report argues that the continuing poverty of Aboriginals is a consequence of the reserve system that relegates Native tribes to inadequate territories with insufficient resources. In Canada, less than one-half of one per cent of the Canadian land mass south of the 60th parallel is Aboriginal land. Aboriginals in the United States (excluding Alaska), who make up a far smaller proportion of the population, by contrast hold three per cent of the land. Moreover, American reservations tend to be larger than the fragmented reserves spread over Canada.

The fragmented nature of the Canadian reserve system has made it virtually impossible for most Aboriginals to have access to a contiguous land base sufficient to their needs. Therefore, the continued poverty of Aboriginals is not a product of lack of will, it is a consequence of lack of land and resources. Without a land base, laments Judge Wilson, “Native people are just going to be continuing to live on welfare.” Indeed, much of our wealth as Canadians is predicated upon the abundance of resources contained within our land base. It should come as no surprise, then, that the deprivation of territorial resources results in poverty.

“Without a land base, whether the resources are aquatic resources or land resources, our people can never create an economy. And right now our dependency on the Federal government is directly related to the fact we don’t have a livelihood in most cases,” reasons Chief Mercredi. “We’re getting tired of seeing all our resources being exploited by what we call outsiders, and of seeing all the benefits of these developments being taken out of our communities. And we don’t even see the impact of economic progress on our territory!”

It is on these two points – nationhood and a land base – that the viability of self-government balances. On these, the Report, Judge Wilson and Chief Mercredi all concur.

The three also agree that Aboriginal government must be a third order of government, inferior to neither Federal nor Provincial power. This does not mean sovereign government, however. “The difference,” explains Chief Mercredi, “is that self-government is something that fits into the Canadian federation. The approach we’ve taken is that, if that’s the kind of self-government we’re going to get, we want it as a distinct order ... as a constitutional right.”

However, it is the subject of self-government that raises the most controversy among both Aboriginals and non-Aboriginals. Among non-Aboriginals, the fear is that self-government will result in completely autonomous states exempted from the laws of the land. On the contrary, the Report indicates that Aboriginal governments would be bound by the Canadian Charter of Rights and Freedoms, but they would be free, as are the Federal and Provincial governments, to invoke the “notwithstanding” clause in certain circumstances.

Some Aboriginal women’s groups have expressed the concern that under Aboriginal self-government women may be discriminated against. However, the constitution does not allow Aboriginal governments to deny the equality rights of women.

There are approximately a thousand reserve and settlement communities in Canada. In order for self-government to be manageable, however, it is likely that it must be restricted to the 60 to 80 existing Aboriginal nations. This has created a concern among some of the over 600 Indian Act chiefs who fear the potential loss of their positions. “I think the thing that, perhaps, disappoints me most is the lack of a consensus among the various groups of Aboriginal people,” says Judge Wilson. This has led to a division within the Aboriginal community between those leaders who wish to negotiate pragmatic issues piecemeal with the Federal government, and those who want a broader constitutional deal.

The piecemeal approach is dubious, however, and is born of a frustration with the interminable delays in constitutional reform. Piecemeal negotiations tend to favour the wealthier reserves like those in British Columbia, which, in order to achieve limited powers of self-government to develop their resources, are prepared to make opportunistic deals with the Federal and Provincial governments. Although this may be of great benefit to the reserves in question, it does nothing for the poorer reserves, which, without a comprehensive constitutional agreement, will never emerge from the miasma of poverty. According to Judge Wilson, the Chrétien penchant to “nibble round the edges” is “useless” and is, in fact, “the very opposite approach from our Report,” which recommends constitutional changes at the top level of government. Moreover, it is very shortsighted and will do little to solve the greater problem of national political recognition of Aboriginal nations. Besides, it risks dissipating the energy directed toward constitutional reform and plays into the hands of the forces for Aboriginal assimilation.

Chief Mercredi finds it difficult to contain his frustration with the slow pace of negotiations with the Federal government. He points out that following the Oka crisis he was elected Grand Chief of the Assembly of First Nations, “because I represented a partial reconciliation with Canada, and I was also a person that represented non-violence in terms of our dealing with white society.” In the Charlottetown Accord, he came closer than any Aboriginal leader to realizing the goal of the recognition of a distinct order of Aboriginal government, and the honouring of treaty rights. Since the failure of the Accord, he has become increasingly disillusioned. “I entered with [the] philosophy that we can change white society, that we can find room in it, and that we will be accommodated. I don’t believe that anymore.” Judge Wilson admits she has, “quite a regard for Ovide. He’s been low key; he’s tried to go the reasonable, intelligent route. I don’t think he’s had an easy road.”

And now the Aboriginal leader, originally elected as a conciliator, finds himself reluctantly admitting that he is “not that keen about constitutional self-government anymore. I see that white politicians are not interested in giving us fair treatment in terms of constitutional rights, so that leaves us with no option but to go through direct action, and that is sovereignty.” Chief Mercredi’s strategy is to appeal to international bodies like the United Nations for recognition of Aboriginal nationhood status; a tactic that proved very successful for the Cree in their battle with the Quebec government over the issue of hydro-electric power. Similarly, Judge Wilson warns, “I don’t think that the younger native people are going to be as patient and long suffering as their fathers and grandfathers. People will only put up with their situation for so long.”

To date, the current Federal government’s dealings with the Aboriginal community has been called hypocritical. Lionized by the Federal Government as defenders of national unity during the Quebec sovereignty referendum, Aboriginals have fallen off the government radar screen. Partially as a result, Chief Mercredi has arrived at the point where he does not really care whether Canada survives as a nation. He does believe, however, that if Quebec separates, then Aboriginals within its borders have a right to self-determination. “This is all that cross-eyed thinking by white jurists,” complains Chief Mercredi, “like somehow they could recognize self-determination for Quebec, but they won’t make the same recognition for First Nations.” Judge Wilson adds, “the days are gone when people can make decisions and compel the Aboriginal people to do this and that without their consent.”

Chief Mercredi’s pronouncements on the non-Aboriginal political culture may not be too pleasant – but neither were Louis Riel’s. As Canadians, we must do more than erect statues to Native visionaries a hundred years after the fact. A fundamental principle of human rights is that if it is in our power yet we do nothing to rectify an injustice, we become culpable of the original transgression. “The thing that has always struck me as odd,” remarks Judge Wilson, “has been Canadian politicians who go around the world and say to other countries ‘we won’t help you financially unless you clean up your human rights act,’ and there is the worst, most glaring omission to recognizing human rights here on our own doorstep!”

This may be our last chance for a peaceful rapprochement between Canada’s Aboriginal and non-Aboriginal cultures. Both the Report and the body of chiefs of the Assembly of First Nations have requested a summit of Aboriginal and non-Aboriginal leaders to discuss the issue of self-government. We have a new Grand Chief in Phil Fontaine, a new Indian Affairs Minister in Jane Stewart, and a new blueprint for reconciliation in the Royal Commission Report on Aboriginal Peoples. All we need is the political will for a fresh start.
Lorne Monti is a Contributing Editor of new federation and lives in Toronto.

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