The emergence of "the constitution" as a central issue of Canadian politics through the late 1970s, the 1980s, and the 1990s has had enormous implications for the shape and content of Native activism in Canada. As has been discussed previously, Indigenous peoples in the nineteenth century resisted any transfer of powers from imperial centres to local, non-Aboriginal governments in what was then tellingly described as the "White dominions." The issue was raised again when the Trudeau government began the process of "patriating" the Canadian constitution in the late 1970s and early 1980s. Proponents of patriation sought to strengthen institutions of Canadian self-governance by overcoming the apparent anomaly that Canada's main constitutional instruments could be amended only by the British Parliament.

Several Indian organizations worked together in creating a lobby system to raise questions about patriation and demand proper safeguards to protect the rights and interests of the First Nations. George Manuel was one of the chief strategists in this campaign, highlighted in 1980 by the cross-Canada rail trip from British Columbia to Ottawa of "the Constitutional Express." Its purpose was to raise awareness of the implications for First Nations and for all Canadians generally of major structural changes to Canada's supreme law.

One of the central demands of the activists was that the constitutional agreement contain a provision recognizing and affirming the existence of Aboriginal and treaty rights. Constitutional protection would be a stronger safeguard than legislation because constitutional change requires broad-based agreement while legislation can be easily repealed with a change of government. Largely through the intervention of the New Democratic Party and an Inuit member of the federal Parliament, Peter Ittinuar, the activists succeeded in convincing Trudeau's government to insert a provision in the draft constitution act (section 34).

Then, on the eve of 5 November 1981, section 34 was dropped from the text when the federal government failed to convince the provincial premiers to accept it. Aboriginal leaders, including the Assembly of First Nations, were outraged, saying they had been betrayed: the Crown had failed to fulfill its legal responsibility to protect the rights of Aboriginal peoples. Many thousands of Native activists from coast to coast protested the removal of section 34. Native activists occupied the Museum of Anthropology in Victoria, British Columbia, demonstrated in force at the Alberta Legislature, and held a series of rallies on Parliament Hill in Ottawa. During the Ottawa protest, many Native war veterans displayed their medals as symbols of the sad irony that the first ministers could strip from them in a single evening the liberties they had fought to protect. Thomas Berger joined in the protest, penning an intervention in the Globe and Mail that subsequently led to his resignation from the judiciary for having taken a public stand on a political issue.

These displays of indignation caused the first ministers to relent in part. A new provision was placed in the text recognizing and affirming "the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada." Furthermore, Aboriginal peoples were defined in section 35 as comprised of Indians, Inuit, and Métis. For the Métis, a group that had been terribly marginalized in Canada since their military defeat in the 1885 North-West Rebellion, this recognition marked a political and legal breakthrough of genuinely monumental proportions.

Section 35 put in legal language many of the principles that had emerged from the Berger inquiry and the Dene Declaration of 1975. Moreover, the provision went at least part way to meeting one of the key demands of the Native Peoples' manifesto brought to Ottawa from Anicinabe Park in 1974. Technically, the provision does not create a new right where no right existed before. Instead, section 35 became a kind of bridge of legal interpretation to connect post-patriation Canada with the era when the British sovereign articulated some of the principles of existing Aboriginal rights in, for instance, the Royal Proclamation of 1763.

The great problem with section 35 was that Aboriginal peoples would have no formal say in defining its meaning, either through the process of constitutional amendment or through the process of judicial interpretation. The formula for constitutional amendment had particularly grave implications for the First Nations. It gave provincial governments control over defining existing Aboriginal and treaty rights, and those were the very governments that had earlier resisted accepting the idea that these rights even existed. Clearly the revised draft was still problematic.

Different Indian organizations turned to Great Britain either to stop patriation or to seek redress for their grievances. They asked how the British sovereign could transfer its responsibilities with respect to Indian treaties to authorities in Canada, without some sort of Indian consent for this process? They argued that this transfer of responsibilities without the consent of the Aboriginal participants in treaty agreements seemed to fly in the face of the most basic principles of contract law. Although the lobbyists failed in a court challenge and in their attempt to gain an audience with the Queen, their protests did ensure that Aboriginal issues dominated the House of Commons debate at Westminster. Fully 27 of the 30 hours of debate were devoted to the subject.

The Indian lobby brought many hundreds of Aboriginal elders, politicians, and their various advisers and technicians to Great Britain over a period of three years. The efforts to stop or modify patriation involved a significant logistical feat, which became part of the larger process of seeking international forums to counter the pressure to domesticate the status of Indigenous peoples as an internal matter for the nation state. Indian lobbyists found many venues for their efforts, including the British courts, the House of Lords, community events, and public relations efforts in the media

Photo of Repatriating the Constitution, Ottawa, ON, Apr. 1982.

Repatriating the Constitution, Ottawa, ON, Apr. 1982.

Queen Elizabeth II signs the Constitution Act, 1982. The Queen is accompanied by (left to right) Gerald Regan, Pierre Elliott Trudeau, Michael Pitfield, and Michael Kirby.
NAC (PA-140705, image by Robert Cooper).

Finally, the new Constitution Act, 1982 was signed into effect. Section 37 called for a first ministers meeting "respecting constitutional matters that directly affect the Aboriginal peoples of Canada," to take place within one year of patriation. One of the main outcomes of this first conference was an agreement to continue to meet. Accordingly, between 1983 and 1987, four two-day constitutional conferences took place in Ottawa. Each was broadcast live, in its entirety, on the television network of the Canadian Broadcasting Corporation.

The main purpose of these conferences was to come up with a constitutional definition of the "existing aboriginal and treaty rights" recognized in section 35. At these sessions, Canada's 11 first ministers consulted with the leaders of Canada's two federal territories and with delegations representing Registered Indians, the Inuit, the Métis, and a rather vaguely defined fourth grouping of so-called non-Status Indians and off-reserve Indians represented by the Native Council of Canada. Although these conferences served to publicize Aboriginal concerns, it was to be in other venues that more significant progress was made.

Written By

Anthony J. Hall
Professor of Globalization Studies
University of Lethbridge

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