CHARLOTTETOWN AND ABORIGINAL RIGHTS: DELAYED BUT NEVER RELINQUISHED Charlottetown constitutes from an Aboriginal perspective the all-time high point in Crown-Aboriginal relations. In 1992, Canadians and their governments began to behave as though they really wanted and intended to do the right thing: to make space and share the country—and to share power. Those hopes were delayed with the defeat of Charlottetown, but they have not been dashed. Matthew Coon Come Du point de vue autochtone, l’Entente de Charlottetown a constitué le plus haut fait de l’histoire des relations entre l’État canadien et les peuples autochtones. En 1992, les Canadiens et leurs gouvernements semblaient ainsi résolus d’assumer leurs responsabilités en partageant leur territoire et leur pouvoir. Un espoir que le rejet de l’Entente a éloigné, sans toutefois l’anéantir. t is hard to believe that ten years have gone by since the The James Bay Crees were also continuously represented Multilateral Constitutional Negotiations, which led as throughout the process by constitutional counsel with a sim- I we all know to the ill-fated Charlottetown Accord, took ple mandate: take all possible steps to protect and advance place in 1992. James Bay Cree rights in our particular constitutional and his- I wish to acknowledge the remarkable effort of all of the torical context within Quebec and Canada. people involved during that challenging year, primarily the The Constitution Act of 1982 contained three key key extraordinary participation in that process of my predecessor, parts: Part I, concerning core powers and institutions; Part Ovide Mercredi. His involvement was skilled, courageous, prin- II, a new Charter of Rights; and Part III, containing just one cipled, effective and, importantly, historically accommodating. section, s. 35, recognizing the three Aboriginal peoples in This is not to say that I do not acknowledge the efforts Canada (Indians, Inuit and Metis) and recognizing and of the leaders and officials of the other orders of govern- affirming our Aboriginal and treaty rights. ment in Canada, both federal and provincial, those forward- We believed in 1982 that we had turned a corner in our looking federal and provincial leaders who to a greater or relations with the Canadian Crown, away for the colonial lesser degree worked with the Aboriginal parties in achiev- dominance inherent in section 91(24) of the British North ing that historic accommodation, or even those leaders who America Act and the Indian Act, towards recognition of our refrained from time to time from working against us and in Aboriginal status and rights, and towards reconciliation of the end joined the consensus. our contending sovereignties. I acknowledge them all, because the result, a unanimous result, constitutes from an Aboriginal perspective the all-time adly, it was not long before we saw that while the few high point in Crown-Aboriginal relations in Canadian history. S but powerful words in section 35 of the Constitution Act At the time of the Charlottetown process, I was Grand meant a lot to us, they meant less to the courts and extreme- Chief of the Grand Council of the Crees in Quebec. The ly little to the Crown. involvement of the James Bay Cree Nation was intensive How little did they mean? I will illustrate how little from the moment that the Aboriginal parties were admitted with just one post-1982 word: Oka. to the process. Throughout the process, I and the nine James Oka, as you recall, represented the triumph in Canada Bay Cree chiefs participated both in all First Nations policy of the inevitable outcome of almost total landlessness, gatherings and in many of the actual multilateral negotiating resourceless and dispossession; the deployment of state sessions between the governmental and Aboriginal parties. force against legitimate grievance; and the culmination of 70 OPTIONS POLITIQUES DÉCEMBRE 2002 – JANVIER 2003 Charlottetown and Aboriginal Rights centuries of colonial greed in the cause of the you will recall, they included a number of impor- enlargement of a golf-course. tant elaborations on the content of the Aboriginal Oka caused Canadians and their governments to and treaty rights already in the Constitution. look at themselves in the mirror, and they did not like what they saw. They knew—and still know—of irst, there was the Canada clause, stating that For a brief the overall landlessness and mass poverty of F “the Constitution of Canada, including the Aboriginal peoples; of our over-incarceration, so that Canadian Charter of Rights and Freedoms, shall be year Canadians some provincial prisons have 85 percent Aboriginal interpreted in a manner consistent” with the char- and their prisoners; of epidemics of aboriginal youth suicide acteristics that “the Aboriginal peoples of Canada, and despair; of hundreds of desolate reserves without being the first peoples to govern this land, have governments adequate housing, sanitation or clean water. They the right to promote their languages, cultures and were demanding that their governments take deci- traditions and to ensure the integrity of their soci- began to sive steps. Nevertheless, at the start of 1992, the fed- eties, and their governments constitute one of the eral government tried to tempt and side track us into three orders of government in Canada.” behave as a separate, delayed constitutional process, and then Second, there was provision for Aboriginal also into a royal commission, but all of the First representation in the Senate, which would be though they Peoples were insistent and so at last we gained admis- guaranteed in the Constitution, and Aboriginal sion into the corridors of power and the halls of senators would have the same role and powers as really wanted Canadian constitution-making as full parties. other senators plus a possible double majority and intended power in relation to certain matters materially eaving aside the substance of the Accord for affecting Aboriginal people. to do the L now, with respect to the Charlottetown process, Third, there was provision that the for that brief year Canadians and their governments Constitution would be amended to recognize that necessary and began to behave as though they really wanted and the Aboriginal peoples of Canada have the inher- intended to do the necessary and right thing: to ent right of self-government within Canada. right thing: to make space and share the country; to share power A contextual statement would be inserted in and share the lands; to share the resources; to share the Constitution, reading as follows: “The exercise of make space and the Constitution; and to finally and belatedly turn the right of self-government includes authority of their backs on a shameful history of colonial poli- the duly constituted legislative bodies of the to share the cies, domination, the use of force, and policies of Aboriginal peoples, each within its own jurisdiction: country; to dispossession and exclusion. to safeguard and develop their languages, cultures, It was very refreshing. We had been informed economies, identities, institutions and traditions; share power; to that many of the provincial governments and and, to develop, maintain and strengthen their rela- many federal voices had argued that there would tionship with their lands, waters and environment share the lands be anarchy and chaos, anger, outrage or distur- so as to determine and control their developments bances if Aboriginal peoples were admitted to the as peoples according to their own values and priori- and share the process. These preconceptions belonged in anoth- ties and ensure the integrity of their societies.” er era. Our leaders are angry and outraged only This important right was subject to negotia- resources; and when we are being shamefully treated, and even tion before litigation. then we are mostly polite and restrained. After just Fourth, with respect to treaties with to share the a few days of the Charlottetown process, everyone Aboriginal peoples, the Constitution would be Constitution. could see that the nation’s supreme business took amended as follows: place without difficulty when we were fully ● treaty rights would be interpreted in a involved and honourably treated. just, broad and liberal manner taking into account Indeed all of the discussions of the nation’s gen- the spirit and intent of the treaties and the context eral business were greatly enhanced. First Nations in which specific treaties were negotiated; peoples were effective advocates at all four of the ● the governments of Canada and the negotiating tables and in the policy discussions. Our provinces would be committed to establishing delegations were well-prepared, technically persua- and participating in good faith in a joint process sive, highly attentive, fully capable of compromise, to clarify or implement treaty rights, or to rectify principled and articulate. Whenever agreement was terms of treaties when agreed to by the parties; reached, it was genuine, respectful and elated. ● participants in this process would have The key features of the Charlottetown Accord, regard, among other things and where appropri- which now seem so extraordinary, even revolu- ate, to the spirit and intent of the treaties as tionary, were logical and fundamentally correct. As understood by Aboriginal peoples. POLICY OPTIONS 71 DECEMBER 2002 – JANUARY 2003 Matthew Coon Come Fifth, with respect to the financing of gov- and structure the employment opportunities neces- ernments of Aboriginal peoples, a political