The Search for Accommodation

L.C. Green is a university professor of political science and an
honorary professor of law at the University of Alberta.

This pamphlet in the Queen’s University Institute of Intergovernmental Relations series on Aboriginal Peoples and Constitutional Reform is the result of a series of interviews with the various parties in the then about-to-be-held 1987 First Ministers’ Conference on Aboriginal Constitutional Matters. It is, therefore, to some extent of historic interest, although most of the problems raised remain to be settled. Thus, most of the interview questions listed in Appendix A are still with us: “Generally speaking, what would you consider to be a successful conclusion to the Section 37 process? (constitutional amendment, political accord, extension of the process, legislation, etc.) What questions have to be addressed, or issues resolved, to make the Section 37 process a success? Can the questions and issues which you identified be resolved ... and if so, how? A constitutional accommodation could take many forms. Of the various forms possible, which are receiving the greatest attention?”

Even though the 1987 Conference “was the last such conference mandated by the constitution,” it is clear that if the aboriginal claims to self-government are to come to fruition or if some lesser arrangement is to be reached, there remains need for more conferences and more discussion. To this end, those involved in the discussions will still find this short paper, with its comments on the issues, prospects for resolution, forms of accommodation and the like, of more than merely passing interest. Among the matters still to be settled, for example, are federal / provincial responsibility, adequate financing, the right to self-government, the problem of provincial veto, and land questions. As a constitutional matter, “rights defined in self-government agreements would be deemed treaty rights, and protected under section 35(1),” although this article does not really tell us what the status of Indian treaties is, nor do such treaties cover all aboriginal peoples. The most realistic statement in the paper reminds us that “whatever the form of constitutional accommodation, it will likely be accompanied by a political accord. Since the parties to the negotiations cannot agree to a constitutional resolution of all the issues before them, some issues will likely be the subject of a political agreement, while others are apt to be the subject of further negotiations.”