We need to commit to Indigenous negotiations

Uncertainty has led to a major crisis in Canada, Howard Leeson writes.

On the night of Nov. 4, 1981, four deputy ministers and their advisers were charged with the task of negotiating the final shape of the patriation agreement that brought Canada’s Constitution home. I represented Saskatchewan, while the three other deputies represented Newfoundland, Alberta and British Columbia. Negotiations proceeded smoothly in most respects, until we came to Section 35 of the Constitution of Canada, the clause guaranteeing Aboriginal rights for the First Nations, Métis and Inuit peoples in Canada.

The deputy minister for British Columbia rejected the inclusion of this section, arguing vehemently against it. We were all surprised. He explained that in the province of British Columbia, unlike the Prairie Provinces, there were no treaties and he was unsure of what this would mean in the future. The section was deleted, but two weeks later, largely because of the efforts of then Saskatchewan premier Allan Blakeney, the section was reinstated.

British Columbia was not alone in its uncertainty about this section. However, the first ministers agreed that the ambit of Section 35 was to be discussed and agreed to in a series of conferences between the first ministers and Indigenous leaders during the next three years. Those conferences were unsuccessful. The result has been that the “unpacking” of Section 35 has been left largely to the courts, a cumbersome and expensive process that has yielded uncertainty at best, and ambiguity at worst.

Against this background we now find ourselves in a major crisis as we seek to understand what rights of consent Section 35 grants to Indigenous Peoples in Canada. Some argue that they are akin to the rights of a municipality, while others argue that these rights are international in scope. Uncertainty has generated blockades in several parts of Canada and an understanding that we need to settle not only the current dispute, but agree to a longterm process of negotiation that will ensure such civil unrest does not occur again in the future.

I would therefore propose the following for consideration:

First, the RCMP should implement their willingness to withdraw from the disputed lands in northern British Columbia as soon as possible. Second, the government of British Columbia, with the agreement of the federal government, should implement a 90-day “cooling off period” during which work on the gas pipeline would cease. The company should be compensated for the expenses involved. Third, in return for these actions, the hereditary chiefs and the elected chiefs of the Wet’suwet’en First Nation should agree to ascertain as rapidly as possible whether or not the people of their nation are actually in favour of the gas pipeline. In short, they should agree definitively either to give or withhold consent. If consent is given, then the gas line should proceed as per normal. If it is withheld, the federal government and the involved First Nations should agree to an immediate reference to the Supreme Court of Canada as to whether or not under Section 35 consent by the First Nations is required. The expenses involved for this process should be underwritten by the federal government. The outcome of the case should then govern actions involving the coastal gas pipeline.

In the long run, however, it is necessary for the federal and provincial governments to commit themselves to a process of negotiation regarding Section 35. Therefore, over the next two years the first ministers should meet with representatives of the three national Indigenous groups in order to ascertain definitively by negotiation whether or not, and to what extent, consent by Indigenous groups is required in regard to rights and privileges.

I would stress that the negotiations should limit themselves to this matter only. If the parties attempt to negotiate a “grand constitutional deal,” I would predict that they will fail.

Of course, negotiations will be difficult, time-consuming and could fail. But we must deal with the consequences of the 1981 agreement as soon as possible. If we do not, we will continue to see the kind of civil unrest and economic uncertainty involved with the current dispute.

Howard Leeson was the chief civil servant in charge of negotiating patriation for the Saskatchewan government in 1981. He is currently a professor emeritus in political science at the University of Regina.