No amendment required

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Followers of the evolution of Aboriginal law noticed four highly significant words in an Ontario Superior Court decision handed down in late August.

Justice Romaine Pitt wrote in the Mushkegowuk decision that there's no doubt Aboriginal governments make up a "third order of government" in the Canadian governance system. Pitt cited the Coon Come decision (handed down in French by a Quebec court) and other legal, historical and political documents in arriving at his decision.

Those words immediately make one think of the objections to the Nisga'a Final Agreement raised by the British Columbia Liberal Party and the federal Reform Party. They objected to the self government powers the Nisga'a agreement codifies, saying that a Constitutional amendment is required before the federal government can hand over such authority to a First Nation, that the agreement creates a third order of government.

Federal legal advisors, including law professors and Constitutional experts, said that was just not true.

It looks like the feds were right on this one. But let's strip way the legalese and try to explain it in simple terms.

The Crown's original relationship with Indigenous peoples are nation-to-nation agreements or treaties, international contracts between two sovereign governments. Only people who are blinded by racist notions of cultural superiority would debate this point, we think.

Since those days, the government of Canada has done nothing in law to change the fact that Indigenous governments have a right to exist. Even when Canadian authorities removed traditional governments by force and replaced them with Indian Act governments, it was still Native people who made up those governments and they still were seen (at least in theory) as having the right to govern their communities as they saw fit. The Indian Act even ordered that provincial governments could not interfere in the operation of Indian governments. There have been attempts to change this state of affairs (e.g. the 1969 White Paper) but the feds always backed off whenever Native leaders yelled loud enough to attract the rest of the world's attention.

Canada has often shown that a moral obligation to do the right thing is not necessarily a guarantee the right thing will be done. Legal obligations are another matter. A vivid example of the self-centred immorality of those who would seek to unilaterally wipe away the Crown's moral and legal obligations to Aboriginal people for political reasons is that Canada makes Aboriginal people spend millions of dollars proving they have an existing relationship with the Crown that recognizes the legitimacy of Aboriginal governments.

Justice Pitt left politics out of the picture.

It was obvious to him that Aboriginal governments are as legitimate as federal and provincial governments in this country. If the B.C. Liberals, the Reform party and Premier Mike Harris' provincial government believe that a nation's law reflects the moral conscience of its people, we call upon them to prove it by recognizing the legitimacy - and equality - of Aboriginal governments.

There's only one reason we can see why they wouldn't.