Jim Fulton was a wonderful man, a fine member of Parliament and a friend who died way too young at the age of 58 in 2008.
With his customary commitment to improve the lot of aboriginals, he had thrown himself as an MP into the national referendum arguing for the 1992 Charlottetown accord, which his New Democratic Party endorsed. He crisscrossed his vast Skeena riding in northwest British Columbia, a riding with many aboriginal residents, urging them to appreciate the gains the accord would give natives.
He returned shaken to Ottawa. At breakfast a week or so after the referendum, he recounted his shock at the anti-aboriginal sentiments in his riding that the accord had produced. He was equally shocked by the apathy and hostility of aboriginals toward an accord that their national leader, Ovide Mercredi, had negotiated on their behalf. Mr. Fulton had never seen such a chasm in his riding, he recalled, and it shook him.
Mr. Mercredi, then grand chief of the Assembly of First Nations, had been at the table with the first ministers negotiating the accord. His full participation was a first, and the gains in the accord for aboriginals were considerable.
Aboriginal governments, the accord stated, were to "constitute one of the three orders of government in Canada." The constitution would be amended to recognize the "inherent right of self-government within Canada." There were other clauses, too, to enhance aboriginal rights.
The Charlottetown accord died in a national referendum for many reasons, of which "gains" by aboriginals was a minor factor, except in places such as Skeena. But the accord was also rejected by aboriginals on reserves, despite the entreaties of Mr. Mercredi, who campaigned hard to persuade his peoples of its merits.
Aboriginal critics argued that the accord did not go far enough. Aboriginals did not trust aboriginal leaders. Whatever. A genuine attempt at reconciliation was rejected by non-aboriginals for many reasons, but it was rejected by aboriginals because it did not meet their maximalist demands. That was 23 years ago.
In 2009, British Columbia Premier Gordon Campbell stunned his cabinet (as he sometimes did). He had already proclaimed a "new relationship" with aboriginals, and changed the relevant department's title to Ministry of Aboriginal Relations and Reconciliation. Then, he announced an offer to recognize aboriginal title to land, holus-bolus, something no other premier ever contemplated.
Frustrated by the snail-like pace of treaty negotiations, Mr. Campbell made a sweeping, albeit vague, promise that he had negotiated with aboriginal leaders. When these leaders took his startling offer of what we might call today "reconciliation" to their members, they said no. Not enough, apparently. Maximalist attitudes prevailed.
Prime Minister Stephen Harper, who is often pilloried for his lack of interest in aboriginal matters, became frustrated when his government's native-education policy was roundly condemned. So he pushed aside his aboriginal affairs minister and sat down mano a mano with Shawn Atleo, then the grand chief of the Assembly of First Nations. Mr. Harper tore up his government's proposals and renegotiated them entirely.
Michael Mendelson of the Caledon Institute, no friend of the Harper government, wrote a detailed review of what resulted, the proposed First Nations Control of First Nations Education Act. He dismissed completely the accusation that Mr. Harper was obdurate and unreasonable and that Mr. Atleo sold out. It was a fair and reasonable deal that gave aboriginals major gains in money and control.
But more radical aboriginals tore into the 2014 agreement, got heaps of media coverage, chastised the Harper government and unseated Mr. Atleo. Once again, an attempt at progress – "reconciliation" if you prefer – failed, but not for lack of trying.
These three events – and there are others – at least slightly modify the apparently entrenched narrative that "reconciliation" has not been tried in good faith by governments, and that the failure to achieve agreements nudging Canada toward "reconciliation" has been entirely the fault of governments. They bear some blame for the unhappy state of current affairs, to be sure, but not all of it.
Political failures have opened a path for eager courts to march boldly into aboriginal affairs, so that most of the action has been created by "judge-made law."
Whether by clever strategy or happenstance, some aboriginal leaders have been better served by taking maximalist positions and awaiting the next Supreme Court of Canada ruling, such as last year's Tsilhqot'in Nation decision that moved the yardstick decidedly in their favour. This appears to have served them better than entering into major agreements with governments and being accused by their people of selling out.