E. KAYE FULTON March 16 1992



E. KAYE FULTON March 16 1992




Across rural Ontario, the surging clash over rights has provoked bitter feuds, pitting neighbor against neighbor. It began in May, 1991, when Ontario Premier Bob Rae announced that natives would be allowed to hunt and fish for food, or for ceremonial purposes, ignoring provincial wildlife laws. In the view of the province’s 117,000 natives, Rae’s action was a long-overdue recognition of their traditional right to harvest the land. But many Ontarians claim that the decision has recklessly endangered the province’s fragile wildlife resources. Among other things, they accuse natives of netting as much as a million pounds of spawning walleye from the Thames River near London, Ont., and selling the catch to nearby restaurants. Declared Matthew Murphy, a spokesman for the Ontario Federation of Anglers and Hunters: “A minority of natives are abusing the system, creating absolute biological anarchy. They say, ‘Don’t give me white man’s conservation.’ But science knows no race or cultural background. It is not 1492: you cannot hunt and fish with abandon.” Those conflicts are sure to intensify as natives across Canada escalate their demand to govern

themselves—in some cases, beyond the reach of existing federal and provincial laws.

The natives point out that their ancestors controlled their own lives for thousands of years—and that they have never relinquished that right. Indeed, at a constitutional conference in Ottawa this week, native representatives will examine in detail the practical implications of native self-government. Leaders from four organizations representing Canada’s one million Indians, Métis, Inuit and non-status Indians plan to debate how they would run their own governments—and how they would pay for them. The outcome of that conference will likely reinforce unwavering native demands for the constitutional recognition of their inherent right to self-government.

But that strong native campaign faces tough and skeptical opposition from many federal leaders and most of Canada’s 10 premiers. Although most of the first ministers appear willing in principle to entrench the “inherent native right to self-government” in the Constitution, they are seeking to define and to limit that right before they recognize it. As Quebec Conservative MP Jean-Pierre Blackburn has repeatedly insisted, “We do not want to give them a blank cheque.”

It is almost impossible for Canada’s disparate natives to put forward a tidy and detailed proposal. The 512,000 status Indians and

32.000 Inuit across Canada have far different demands and expectations than Canada’s

500.000 Métis and non-status Indians, who have no land base and who often live inner-city lives of desperate poverty. Those differences make it difficult to spell out in practical terms how natives would exercise jurisdiction over health care, education, justice, the environment and resource development.

Instead, natives are asking Canadians to make a massive leap of faith. The Assembly of First Nations (AFN), for one, which represents status Indians, asserts that native governments should have the right to choose their own laws and to replace specific Criminal Code provisions with their own decrees. In addition, the AFN says that natives should have the right to tax themselves—but that they should remain exempt from the taxes that other Canadians pay. Confirming the worst fears of selfgovernment opponents, many members insist that natives should also have sovereignty over their land. In that case, individual bands would be empowered to run revenue-raising operations, such as casinos, that are outlawed in the rest of Canada. As AFN National Chief Ovide Mercredi told Maclean ’s, “Forms of self-government may not necessarily be identical with those of the dominant society. There is nothing compelling us to make them similar.”

The charismatic Mercredi has emerged as the central figure in the controversy over selfgovernment, a lightning rod for both its supporters and its fiercest opponents. A 46-yearold Cree from northern Manitoba, he is the son of a Roman Catholic non-status Indian who worked as a night watchman for Manitoba Hydro. In the nine months since his election as

national chief, the University of Manitobaeducated lawyer has enraged Quebecers with his demands that natives be recognized as a distinct society, while inspiring many natives with his success in pushing aboriginal concerns to the forefront of the national agenda.

But Mercredi has to straddle the yawning gulf between moderates and radicals in his own organization, which represents 633 widely diverse bands. The executive of the 14-band Nuu-chah-nulth Tribal Council on the west coast of Vancouver Island has urged natives

across the country to approach self-government with caution, examining the costs carefully before accepting the responsibilities. By contrast, the Cree of northern Quebec have appealed to the UN Commission on Human Rights to assert their long-standing claim to outright sovereignty over a huge swath of sparsely populated land that includes the lucrative James Bay hydroelectric project.

As well, Mercredi will have to sit at the negotiating table alongside three national native organizations whose priorities often differ widely: the Inuit Tapirisat of Canada, the Native Council of Canada, which represents nonstatus Indians, and the Métis National Council. He and other native leaders will also have to retain the goodwill of a Canadian public increasingly wary of demands for special status—and not just from natives. Said Mercredi: “People look for any excuse to jump on the denial of rights for other people. The phobia related to natives is, ‘How can you trust these savages to run their own affairs?’ ”

In general, Canadians appear sympathetic to the natives’ aims. But many also say that the right to self-government should be clearly defined and limited. In an Angus Reid Group poll released last month, 58 per cent of the respondents favored the entrenchment of native selfgovernment in the Constitution. But 76 per cent of the 1,500 adults who took part in the survey agreed with Ottawa’s position that the concept must first be firmly defined. A mere nine per cent agreed that natives should be allowed to act “with complete sovereignty like

a separate nation.”

Native leaders say that they are hesitant to respond to those demands because they do not want to limit their options at the bargaining table. Indeed, the Inuit Tapirisat and the AFN have insisted that they should be treated as the representatives of a third founding nation, alongside the French and English. That would give natives the power to deal on a government-togovemment basis with the prime minister and the premiers. Last month, Mercredi went even further by claiming that the right of natives to self-government had no limits: natives themselves, he said, would voluntarily cede control over monetary policy and defence to Ottawa.

Despite Mercredi’s desire to avoid discussing specifics, some models do exist for native self-government. In 1986, the 817-member Sechelt band of British Columbia negotiated a self-government agreement with Ottawa. Ignoring the objections of many native leaders,

the band settled for a restricted form of selfgovernment with municipal powers (page 20). For their part, 17,500 Inuit in the eastern Arctic have agreed to abandon their claim to

800,000 square miles of land in exchange for title to 140,000 square miles and $580 million to be paid over 14 years, with interest. As well, the Inuit would receive the right to administer a territorial-style government over the entire eastern Arctic—one-fifth of Canada’s landmass. That agreement has to be ratified this year by an Inuit plebiscite.

Another model exists in the United States, where the Supreme Court ruled in the 1830s that Indian tribes constituted “dependent sovereign nations.” In 1934, in recognition of that approach, Congress passed the Indian Reorganization Act, which permitted self-government on Indian reservations. Since then, Indian tribes have had full power to license and control businesses on native land, assess taxes, determine their own membership and enact their own laws in areas such as divorce and traffic


offences. Still, there are limits on Indian power. Indian governments and tribal courts must respect an Indian civil rights code, established by Congress in 1968, that guarantees equal protection before the law, the right to a lawyer and freedom of speech and religion.

Even with those models, the concept of self-government remains a minefield of questions and challenges:

Land: Natives with existing land bases want Ottawa to transfer to their reserves or communities specific powers—among them the right to develop resources. But that creates complications.

The Dene nation in Saskatchewan, for one, is locked in a dispute with the Inuit over their land settlement with Ottawa. The Dene claim that -

the Inuit land, known as Nunavut, overlaps their ancestral hunting grounds. As a result, they refuse to recognize the Inuit boundaries. Similar disputes exist across the country. That presents a serious dilemma: should native communities assume self-government before the thorny issue of their boundaries—and the ownership of resources—is settled?

Urban self-government: The fate of urban natives is perhaps the most difficult issue to

resolve with self-government. At the core of the problem is which level of government— and native organization—is responsible for the hundreds of thousands of Indians scattered across the country without a land base. In Metro Toronto alone, there are an estimated 65,000 natives from nearly 60 U.S. and Canadian bands. Rodney Bobiwash, the urban selfgovernment co-ordinator for Toronto’s Native Canadian Centre, told Maclean’s that urban

natives need their own representatives at the constitutional table—and their own governing entity. Bobiwash’s demands include a House of Commons seat for Toronto’s natives; a land base for Indians on Toronto Island or in the expensive downtown core; full application of

native rights so that native laws apply to Indians on city streets; and full tax-exempt status. Those demands are certain to fuel controversy and anger among Canadians.

The justice system: Native leaders have demanded the right to craft their own code of law, reflecting native needs. But such a document might overrule the Criminal Code, the Charter of Rights and Freedoms or provincial codes that govern worker safety, the regulation of the environment and labor relations. There are precedents: most provinces now recognize that the existing justice systems can do little to rehabilitate native offenders without the involvement of native communities. As a result, the Alberta government has worked with the Blood band of southern Alberta to estab-

lish a native-run police force and a minimumsecurity prison.

Still, many Canadians reject the proposals that individual bands should be allowed arbitrarily to select their own laws, creating a patchwork of zones across Canada in which different rules would apply. And some native women have launched a vocal campaign to retain the supremacy of the Charter of Rights and Freedoms—contrary to suggestions by a

male-dominated native leadership that natives should write their own charter and perhaps their own constitution. Said. Winnie Giesbrecht, the president of the Indigenous Women’s Collective of Manitoba: “My biggest fear

is that native women are not going to have any

rights whatsoever. They will be controlled by the male powers in the native hierarchy.”

Health and welfare: Many native communities are racked by chronic unemployment, a persistent cycle of welfare dependency and a staggering array of emotional and physical

problems. Indeed, Ottawa spends six times as much on native health and welfare as it does on

native economic-development programs: $613

million compared with $102 million in 19911992. Those who support local autonomy point

out that spiritual healing is a powerful tradition in native culture. But some native leaders maintain that the quality and range of services would suffer if tribal councils or bands had control over health and social programs. Ottawa counters that natives must accept the additional responsibilities of self-government along

with its benefits. As a result, health and welfare programs are certain to be on thé constitutional bargaining table.

Revenue: Native leaders argue that entrenching the right to self-government in the Constitution means little unless natives have the money to implement it. Collectively, natives now own less than one per cent of Canada’s land. Because they can cede title to their lands only to the Crown, they are unable to mortgage their property to raise bank financing for economic development. Said Mercredi: “Land rights are part of the answer to the question of who will pay for Indian self-government. Land is the basis of wealth in Canada.” Along with clear ownership of their land, most natives want the right to generate income on that land. Under existing laws, they do not have to pay income tax as long as they five and work on the reserve. Nor can the various levels of government assess taxes on band property on a reserve. With self-government, natives want the right to tax their own people to pay for their own government. They also want to establish their own tax rules in order to attract business to reserves. As well, Mercredi says that native groups want to establish a fish marketing corporation to find international markets for the natives’ inland fisheries. Because that corporation would negotiate its own

prices, it would compete with provincial and federal governments in international markets.

Still, native leaders concede that there will be a gap between the money they generate and the cost of the services they provide. To cover the shortfall, they want the government to provide transfer payments, in the same way that it now distributes money among poorer provinces. There is no reliable estimate of the additional costs of self-government.

For natives, many of the benefits of selfgovernment are clear. After centuries of repression, Canada’s Indians, Inuit and Métis appear determined to regain their pride and right to self-determination. Said Manitoba MLA Elijah Harper: “The land and its resources do not belong to any one person; they should benefit everyone. We are no different from anyone else. We want to have a good life and a good home.” Those are basic and defensible desires. But they entail a massive shift in the nature of the country. And they will severely test the tolerance and understanding of Canadians during one of the nation’s stormiest eras.

E. KAYE FULTON in Ottawa