Those constitutional conferences – in which I was very heavily involved [as the federal associate deputy Minister of Justice]– failed to reach an agreement. So the whole thing was thrown into the courts with a complete lack of definition. There was an early view, particularly in the Saskatchewan Court of Appeal, that the constitutional recognition of aboriginal and treaty rights was essentially meaningless because under the traditional law, aboriginal rights could be eliminated at the pleasure of the Crown. They said that what was entrenched was the pleasure of the Crown, so aboriginals therefore have no rights.
In a series of cases, the Supreme Court said that cannot be correct; that these rights were put in for a purpose and we are not going to write it out of the Constitution by giving it no content. However, in the absence of much guidance from the Constitution itself as to what the content and strength of aboriginal rights were, the courts themselves had to begin the process of interpretation.
In a series of cases, particularly judgments in the 1990s authored by Chief Justice Lamer, there was a definite perspective taken that real substance would be put into these rights; that this was not a kind of false advertising to the aboriginal population; that the Charter meant what it said and the courts were going to give some real meaning to it. The aboriginal community has rights but it is in the context of a much broader Canadian community of which the aboriginal people are as much a part as anybody else. And the protection and preservation of aboriginal culture and rights can’t be viewed in isolation.
Getting that balance correct has occupied an enormous amount of the court’s time over the years. But in a sense, it goes back to what we discussed in the beginning. As I see it, the court is moving as best it can to interpret the provision on which the Charter expected guidance by way of Charter amendment following these constitutional conferences – guidance that was never given. Therefore, the courts have to go through this process of interpretation to fulfill what they understand was the purpose of having that provision.
It’s a very controversial area because whereas people can look at the rights of the accused and put themselves in the position of an accused and say ‘I’m in favour of the accused having rights,’ if you are not an aboriginal person, you say: ‘Well, their gains are at my expense and why should there be citizens with more rights than other citizens?’
It is in the Charter and the mandate of the court is to give effect to the Charter in a meaningful way, and that’s what they have done.
I should note that my first case in the Supreme Court of Canada was as an articling student with Bert Mackinnon [later Associate Chief Justice] representing an accused in an Indian hunting rights prosecution in 1965 – R v George. As of the Marshall case in 1999, I had been involved in some of the leading Indian rights litigation in the Supreme Court for 33 years. For over four of those years – 1981-1986 – I was Associate Deputy Minister of Justice, whose responsibilities included all of the multitude of aboriginal and treaty rights cases against the federal Crown.
Maybe this is an apt example of governments leaving things to the courts to deal with if they are too controversial?
I would disagree with that historically. As a result of my week-to-week involvement over several years, I believe that the government was ready, willing and able to do a deal on what aboriginal rights consisted of – and there was some measure of consensus among the different aboriginal groups as to what those rights should be. What happened historically was that in the middle of this process, there was a parliamentary committee, called the Penner Committee, which came down with a report on aboriginal self-government. This just threw a bomb into the middle of the process because the aboriginal leadership understandably said: ‘Wait a minute, we haven’t really thought this through. There is no way we can sign on the dotted line when we are midway through a process and we are suddenly confronted with a mega-sized issue that we haven’t had time to consult our people about.’
So, time ran out on the process. But I don’t think the government shied away from doing its best to arrive at a solution. I firmly believe that Pierre Trudeau had enough confidence and engagement that if a deal had been on the table, he would have signed it.