A reasonable voice

Page 5

Editorial

For more than four years, the parties to the Nunavut agreement have been unable to finalize a contract that would allow Canada's historic achievement-the creation of Nunavut-to carry on for the next 10 years.

The government of Canada (represented at the table by the Department of Indian Affairs and Northern Development), the government of Nunavut and Nunavut Tunngavik Inc., the corporation that oversees the regulatory bodies created by the Nunavut agreement, knew they needed help. They looked to one of the most experienced and most widely respected thinkers on Aboriginal law, rights, policy and processes in the country to find a way to get things back on track.

Thomas R. Berger, a member of the Order of Canada and a Queen's Counsel, has delivered his report. (See story on page 8). The question now is how welcome will his recommendations be in the halls of power in Ottawa.

In his report, Berger raised some fundamental issues that lurk in the background of all discussions of Indigenous rights in Canada. He took them on with no fear or favor.

He slammed the negotiators of the Nunavut land claim who put off facing up to-and solving-the most difficult issues by including meaninglessly vague language in agreements. Though they were able to put one in the "completed" file at the time, they only postponed the debate and passed the most difficult of tasks on to others. Berger called that particular spade a spade.

He questioned the very idea of passing legislation that creates a new territory and settles the land claims of the Inuit of the Eastern Arctic while placing all the rules governing funding and authorities in a separate, non-legislated contract. The legislation has the full protection of the Canadian Constitution; the separate contract does not.

To our way of thinking, that particular device is one of those bureaucratic tricks that ensures that the aims of the legislators can be frustrated by the non-elected officials who work behind the scenes and do not have to justify their actions to the voters every few years.

Mr. Berger was off in Europe celebrating his 50th wedding anniversary and was not available to deal with our questions about his report, but we get the sense he was not impressed with the way a lot of the processes have unfolded. Merely bringing attention to these matters should spark a long overdue public debate and analysis that we're pleased to begin here.

Perhaps the most important and controversial item in the report dealt with Berger's recommendation that Canada submit disputes to neutral, third party mediators.

First Nation leaders have been calling for this for generations. Canada has so far resisted the call and has continued to hold onto its favored position on the top perch of the confederation's power structure-Indigenous parties to agreements have never been full and equal partners.

Indigenous sovereigntists have often called for a body outside of the Canadian system that is neutral and non-aligned to referee disputes between the Indigenous people and the descendants of their colonizers. Canada has always resisted (and even ridiculed) the idea as one where they are being asked to surrender their sovereignty. Funny how surrendering Indigenous sovereignty has never been seen as quite so unthinkable in the Canadian system.

This reveals that Canadian government officials will take clearly indefensible positions in disputes if they think they will not to be called to account. Berger says no party should ever be able to act unreasonably, secure in the knowledge they will not be held accountable.

Berger's recommendation that bureaucrats not be allowed to invoke Parliament's prerogative during disputes over clauses in laws that Parliament has itself passed and signed off on, was an example of eminent common sense. Whether the former judge was acutely aware of exactly what he was proposing or not he has recommended that Canada quit playing games and intoduce more than a little good faith bargaining to the process.

It's a well-established joke of sorts among those who study political science in Canada that in the United States the people hate the government but in Canada the government hates the people.

There's a heck of a lot of truth tied up in that succinct little axiom. We never had a revolution in this country. We never took up arms against the colonial masters and asserted the sovereignty of the common man as our American neighbor did beginning in 1776. It's still somehow seen as acceptable that non-elected mandarins can maneuver to thwart the intentions of Parliament, the place where those who are elected go to ply their trade.