Reconciliation and Social Justice Library
Reconciliation and Social Justice Library
It is valuable to consider the recent case of Canada which is the country with most experience of Indigenous constitutional reform.
Simmering Canadian Indigenous discontent in the 1960s was fuelled in 1969 by the federal Government white paper on Indian policy which urged the phasing out of Indian rights, status, and programmes. Rather than ignoring these grievances federal Government responded in a constructive way by funding regional and national Indigenous associations to press their grievances and viewpoints. It recognised that Indigenous peoples had concerns which needed to be heard and which would not be heard unless they had their own adequately resourced institutions and processes. Federal funding was provided on a multi-year and formula basis so that no group could be singled out and punished or undermined when governments did not like what was being said. The associations were free to hire their own staff and set their own agendas. They had enormous impact, both on federal policy-making and in some provinces, as well as on public opinion.
At the end of the 1970s the federal Government invited the national Indigenous associations (in which the regional groupings were represented or federated) to join in the work of national constitutional reform. This initiative quickly resolved itself into a particular sub-process within the overall and ongoing national constitutional reform. The national and regional Indigenous bodies were specially funded by Ottawa to prepare their constitutional case, hold consultations, and engage experts. After experiencing two years of Canada's constitutional conflicts -- West vs. East, Quebec vs. the rest, federal vs. provincial governments -- the Indigenous groups managed to convince governments, with the help of public opinion, to amend the Constitution in 1982 to recognise `aboriginal rights'. High Court decisions since, notably Sparrow in 1990, have provided a firm legal basis for such rights, for example, in relation to sea fisheries. The Canadian Government now recognises those `aboriginal rights' to include Indigenous self-government.
The Canadian constitutional negotiations between Indigenous peoples and governments have been difficult and complex, and have not yielded many amendments to date.
A strong Indigenous package was agreed in 1992 as part of an overall national constitutional reform, only to be voted down in a referendum which saw Canadians revolt against their political leaders for a variety of reasons. However, much else has changed. The negotiation process has brought leading politicians and central agencies of governments into contact with Indigenous peoples and Indigenous issues, bringing new priority and fresh thinking to what had long been a backwater of welfare-style programs. Bargaining between equals replaced hand-out patronage. Indigenous peoples were seen to be emerging political communities -- in various stages of readiness for wider responsibilities, of course, but all on the same road and going in the same direction.
However, high-level attention and new relationships, confirmed for the public by all-day nationally televised conferences of the Prime Minister and premiers with the country's Indigenous leaders, were only the tip of the iceberg. Most lay below the surface. For years large areas of Canada -- over half of the national territory -- were the subject of land claims negotiations which included many socio-economic, environment, resource management, and self-government features. In other words, while discussions of national constitutional issues were going on, Indigenous communities in various regions were uniting to negotiate detailed new territorial and political arrangements for whole areas of the country. Furthermore, in Indian communities situated on land held in perpetual trust for Indigenous peoples by the federal Government and provided for by the national Constitution of 1867, local people were taking over more and more of the service delivery and local governance from Ottawa. They were seeking wider powers and slowly gaining them.
The Canadians also saw environmental and development disputes across the country involving Indigenous peoples, their lands, resources and fundamental concerns. This occurred particularly in relation to mining, logging, oil and gas exploration, road building, and especially hydro-electric power projects. Also, the need for Indigenous public services in urban areas was a perennial unresolved issue. Indigenous peoples were insisting that their intellectual and cultural property rights be recognised and legally protected. Essentially the place of Indigenous peoples in Canada was under negotiation, from top to bottom. The good news was that this shake up provided an opportunity, not only to air grievances, but to negotiate substantive resolution of past and continuing injustices; the bad news for governments was that this meant that Indigenous peoples were insisting on full rights and high-quality services, and on being substantively compensated for their lands, waters, and seas which provided the national wealth.
Other countries besides Australia and Canada are facing this issue. New Zealand is struggling to find bridges between Maori and Europeans. Despite the earlier history of American Indian conflict, Alaska today is a situation like Northern and Central Australia: recent statehood, Indigenous claims settlements, and federal protection of environmental and other lands have created a new arena for conflict and negotiation as the Inuit, Aleut, and Indian peoples there seek to rebuild their autonomy and economic base around village and regional self-government.
The three Scandinavian countries have had substantial difficulties coming to terms with Sami rights, although Norway has recently passed a constitutional amendment essentially recognising the country as bi-cultural, Sami and Norwegian, and insisting that the government guarantee to Sami the means (which is accepted as including natural resources, land, and sea) to maintain their distinct culture. Greenland, an Inuit territory, has virtual autonomy in relation to Denmark, an outcome negotiated during the 1970s. 2