Aboriginal People and the Canadian Constitution

The regulation of the legal status of the Aboriginal population is one of the most acute problems of the political life in Canada. The Constitution Act of 1982 implies the protection of the fundamental rights of the Aboriginal population of Canada, as well as securing their rights in the Canadian Constitution. Thirty years after the enactment of the aforementioned Act have not resulted into any major changes in terms of the law for the Aboriginal population.  Nevertheless, the amount of people identifying themselves as aboriginal population of Canada is rapidly increasing and significantly affecting the social, political and economic development of the country. In order to identify the gaps in the relation between the Aboriginal people and the Canadian Constitution, it is necessary to analyze the present rights of Aboriginal people and their correspondence to the condition and the growing demands of the modern aboriginal societies. The best way to comprehend the changes that need to be made in the Canadian Constitution in order to ensure an indefeasible legal protection of Aboriginal people is to analyze its present impact degree of the Act on the given formation.

One of the most obvious gaps concerning the issue of the national rights of indigenous people (Indians, Inuit and the Metis) in Canada, in terms of their representation in the Canadian Constitution is that these Aboriginal people durably remained in the position of "second-class citizens". To patch this constitutional loophole and at least superficially conceal the striking injustice to Aboriginal Canadians, the prime-minister Pierre Trudeau, before his resignation in 1984, proposed to add an article to the Canadian Constitution that will recognize the right of Indigenous people for political autonomy. Though all the constitutional amendments proposed by the Canadian government were rather delicate and were presented in a form of declarative statements they were directly rejected by the Aboriginal provinces as inappropriate. Brian Mulroney's consequent attempt to take control over this situation during the 1985 conference resulted in a complete fiasco leaving the problem of the rights of Aboriginal people in Canada unsolved. In other words, the attempts of the Canadian government to change the pattern of relation to the Aboriginal people remained at the level of enactment of the Constitution Act in 1982. The Act was originally created under the notion that the Indigenous people possessed a set of rights before the first Europeans came to the North-American continent. Therefore, these rights continue to exist at the present time until not canceled by later treaties or laws. It is vital to note that while the Act provides self-government rights to the Aboriginal people, their legal status is in constant danger of the abolishment of the aforementioned rights of the Indian, Inuit, or Metis representatives. Though the government of Canada has done multiple efforts to regulate the legal controversies regarding the rights of the Aboriginal people, many of them have resulted to be a failure similar to the Charlottetown Accord of 1992. The Charlottetown Accord of 1992 was designed to proclaim the inherent right of the Aboriginal people to self-govern. The major reason of the failure of this accord is that the Aboriginal people wanted the Canadian Law to constitute the inherent nature of this right on the international and constitutional level. The modern Aboriginal society demonstrates impressive rates of the increase of its overall amount. It undoubtedly influences the everyday life of the population of Canada due to the active urbanization process taking place among the young generation of Aboriginal people. Aboriginal people have become an integral part of the population of Canada and correspondingly require a stronger Constitutional protection than the Constitution Act of 1982 can offer. The contemporary situation in the country shows that when non-Aboriginal and Aboriginal interests are in conflict with the law, it provokes many serious conflicts and subsequently leads to ambiguity in terms of the proper interpretation of the real rights of Aboriginal people. Such legal controversy is the result of the insufficient protection of the First Nations laws revealed in the section 35 of the Constitution Act of 1982. Evidently, the consideration of the First Nations law is especially important in terms of understanding the cultural differences between non-Aboriginal and Aboriginal people.

In 1996, the Royal Commission on Aboriginal Peoples (RCAP) became the second most important step towards the recognition of the rights of the Aboriginal people after the Constitution Act, 1982. The Royal Commission succeeded in affirming the right of the Aboriginal people for land base and emphasized the importance of the territory for the cultural heritage of the Aboriginal people. In other words, the Royal Commission recognized the cultural entity of the Aboriginal people and their right to be an independent political self-regulated unit with historically acquired land. In spite of all the positive intentions, the Royal Commission also created a controversy as it literary attached the Aboriginal people to certain Canadian territories. As it has been mentioned above, the Aboriginal societies were and are experiencing the process of vast urbanization and many representatives of the Aboriginal culture have moved to cities. Such controversy created major issues in terms of the status of those Aboriginal representatives who decided to change their place of residence. The major contribution of the Royal Commission is that it actually took into consideration the necessity to apply additional treaties. Nevertheless, once again the Aboriginal people have faced the inability of the Canadian government to implement all the recommendations of the Royal Commission that would recognize and protect the Aboriginal people, their resources and lands. However, it was the start of the dialogue between the Aboriginal people and the Canadian government on their way to constitutional recognition of the Aboriginal rights. Numerous attempts to have treaties resulted in subsequent conflicts of interests and did not make any changes to the unfavorable constitutional status of the Aboriginal people. Basically, Canada tends to treat the Aboriginal societies as colonies, implying their subordination to the Canadian law and not the First Nation law. This may be considered to be a direct violation of the human rights of the Aboriginal people and even discrimination on governmental level. At the same time, the UN does not provide clear determination of Aboriginal people and their rights. Thus, the modern patterns of life of the Aboriginal people dictate the necessity to make them an integral part of the Canadian Constitution. According to the report presented by CBC News Canada in 2011, the population of Aboriginal people has grown by fifty-five percent from 1996 to 2006. This number is astonishing as such an increase is six times more rapid than the growth of the population among non-aboriginal citizens. Besides, only 29, 3 percent of Aboriginal people live in reservations while the rest lives off-reserve. This fact creates a vital issue concerning the quality of life of the constitutionally unprotected off-reserve Aboriginal population. As the Aboriginal people have unequal opportunities with the non-aboriginal population of Canada, they tend to experience a very poor quality of life. They spend their lives in homes that can be characterized as being in emergency condition. CBC has conducted a research stating that Aboriginal homes are three times more likely to need major repair as compared to non-aboriginal homes. Poverty is one of the major problems of Aboriginal people and the constitutional recognition of their rights would give these people a chance to truly reveal themselves in terms of political, social and economic involvement. This problem was extremely discussed by Phil Fontaine, the ex-chief of the Assembly of First Nations. Notwithstanding all the efforts, Phil Fontaine found no response for the problems of the Metis, Inuit, and First Nations. Thought the Metis, Inuit, and First Nations strongly derive from one another in various aspects, as they have the same problems that force them to oppose the existing Constitution Act, 1982 and treaties. Aboriginal society indeed has low labour and educational opportunities subsequently leading to low level of income. At the same time, some of the Aboriginal representatives become recognized scholars and professors. Correspondingly, the inability of the Aboriginal people to form a unified political voice is one of the major factors affecting the conflicts among the Aboriginal people and the government of Canada. This voice has the capability to force the Canadian Constitution to change.

It is obvious that the Canadian government is not eager to constitutionally recognize the rights of the Aboriginal people. Nevertheless, it is important to understand that in every conflict, both sides need to change their strategy in order to achieve a compromise. It goes without saying that the sovereignty of Aboriginal people is preconditioned to be dependent on the Constitution of Canada whose nature is historically colonial. By-turn, the Aboriginal people have a human right to promote a lifestyle that corresponds to their values and norms. These values and norms can be different from the values of other cultures. Still, as it has been mentioned above, Aboriginal people of Canada lack unity. The Metis, Inuit, and First Nations have a very diverse historical background and sometimes demand different thing. The Canadian government is expected to satisfy the three major groups simultaneously which turns to be a rather complex process. As the Metis, Inuit, and First Nations have different traditions and statuses, it is necessary to admit that the problem of the Canadian's government with constituting their rights is partially sound. The only possible step towards the recognition of the rights of Aboriginal people is the "decolonization" of Canada. In other words, both sides need to break the colonization model of relating to each other. At the same time, the objective reason of the conflict is clear and evident: the inherent right of Aboriginal people to self-govern is not compatible with the Canadian Constitution. The sovereign jurisdiction of Canada established only the federal government and the provincial government without mentioning the third Aboriginal sovereign government. Therefore, the Aboriginal people possess the right to only self-regulate and not self-govern. Aboriginal self-government at the present may exist only under the supervision of the provincial and federal legislation. Obviously, this scheme has no relevance to the inherent nature of the Aboriginal people to self-govern. The Canadian Constitution does not acknowledge the power of Aboriginal self-government but only accepts their right to self-regulate without performing enabled legislation.  The analysis of the Act reveals that the Aboriginal people in actuality have the eternal inherent right to simply self-regulate their own lands and affairs. The framework of the Canadian Constitution by no means implies the inherent nature of the Aboriginal government and needs to be changed in order to provide more rights for the Aboriginal people. The proclamation of the right of Aboriginal people for inherent aboriginal self-government turned to be a political strategy to reach reconciliation. In fact, this right is totally unconstitutional in terms of the Constitution of Canada. This constitutional deadlock is the consequence of the misinterpretation of the terms self-regulation and self-government. The Aboriginal people do not possess the right of self-government as in coercive power revealing the errors in the federal policy that is not compatible with to the Canadian Constitution. At the present moment, the Constitution of Canada does not recognize any sovereign powers outside itself. The Canadian federal policy has outdated itself as it evades the Constitution and therefore, cannot be used as a legal base for building a dialogue with Aboriginal people. The only possible way to fully recognize the inherent power of Aboriginal self-government is to fortify the third order government in the Canadian Constitution.  The recognition of the Aboriginal rights should be revealed in a new constitutional amendment that would announce the third government powers of the Aboriginal people.  Until then, Aboriginal people will continue to suffer severe conflicts within their relationship with the Canadian government.

Presently, the Aboriginal people of Canada find themselves having an unstable legal status. Their rights proclaimed by the Constitution Act, 1982 and further treaties remain unprotected and often neglected. Due to the constitutional contradictions presented in the federal policy of Canada, the Aboriginal people may continue their sufferings for many years.  Simultaneously, the Canadian population is experiencing the growing impact of the modern Aboriginal societies. Therefore, the only politically accurate solution is the creation of a new Constitutional Amendment that will truly enable the government rights and powers of the Aboriginal people as an integral part of the population of Canada.  This will evidently cause a lot of political disputes but will subsequently lead to the harmonization of the political environment of Canada and its population. The new Constitutional Amendment is essential for the protection of the fundamental rights of the Aboriginal population of Canada.

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