Developments during 1999 highlighted a key challenge that confronts Canada as it attempts to deal with the needs and entitlements of its Aboriginal communities: how to achieve the fundamental collective right of Aboriginal people to cultural survival and self-directed lives, while taking into account other considerations, including the individual rights of non-Aboriginal Canadians.

Because this issue was long neglected, Canadians are still determining how to strike this complex balance, but the fact that we are breaking new ground should inspire, not discourage us. Upholding human rights often involves the reconciliation of competing claims and refocusing of priorities. Canadians are justifiably proud of their society's reputation abroad as a defender of rights. This image, however, can only be maintained in so far as we are prepared, here at home, to translate lofty principles into substantive action.

At the dawn of the twenty-first century, there should be little debate that Aboriginal people do indeed have a right to cultural survival and self-directed lives. From a legal perspective, this right stems primarily from treaties that helped lay the foundations for this country and the Constitution, particularly sections 25 and 35 of the Charter of Rights and Freedoms. From an ethical perspective, the right is rooted in the recognition that Aboriginal people were this country's first inhabitants, that solemn commitments were made in exchange for acquiescence in non-Aboriginal settlement, that fulfilment of those commitments was undermined by paternalism and prejudice, and now, that Aboriginal communities suffer from disproportionately high rates of poverty and social strain.

The question for Canada, then, is not whether its Aboriginal peoples enjoy fundamental collective rights, but rather what those rights' practical expression should be. Addressing this question requires a process of reflection, dialogue, negotiation, and action aimed at more fully realizing Aboriginal rights - centuries after they began to be eroded - without being insensitive to other critical interests and concerns. Events related to this process can be clustered under three headings: new governance arrangements, clarification of Aboriginal rights through jurisprudence, and efforts to sustain Aboriginal identities and languages through cultural and communications initiatives.

Governance

On April 1, 1999, the new territory of Nunavut came into being. Nunavut means "our land" in Inuktitut, the Inuit language, and the territory is Canada's largest, comprising one-fifth of the country's total land mass.

This important transition was the culmination of a long process that can be traced to the 1971 creation of the Inuit Tapirisat of Canada and the 1982 creation of the Tungavik Federation of Nunavut - organizations dedicated to advancing Inuit rights and negotiating a settlement in the North. In 1982, an initial plebiscite in the Northwest Territories endorsed the idea of a new territory in the Eastern Arctic. This was followed by the finalization in 1992 of the Nunavut Political Accord and its approval through a second plebiscite, and the 1993 passage by Parliament of the Nunavut Act.

A basic goal behind the establishment of Nunavut is to ensure greater self-determination for the Eastern Arctic's Inuit population. The new territory has an Inuit majority, brings the seat of government to Iqaluit - much closer to most Inuit communities - and is committed to the protection and promotion of Inuktitut and Inuit culture. Nunavut's birth, after years of discussion and preparation, is a momentous event in the life of the Inuit people, and an important step towards a more just Canada. As John Amagoalik, the man who signed the Nunavut Political Accord on behalf of the Inuit, has stated, "living under conditions of colonialism is something our children, thankfully, will not know. Our fathers experienced a time when their independence and human rights were stolen from them. Through the settlement of our land claims and the rebirth of Nunavut, our generation has won back our right to determine our political future."

Similar motives underlay the Nisga'a land claim treaty, which was ratified by the British Columbia legislature and the federal Parliament during 1999. This treaty, like the new Arctic territory, brings a welcome conclusion to a history of dispossession and painfully slow negotiation. The Nisga'a, who never surrendered their claim to ancestral lands, initiated discussions with the federal and provincial governments in 1887, petitioned the Privy Council in 1913, won a landmark case before the Supreme Court of Canada in 1973, and entered into formal treaty talks in 1976. Thus, a long journey led to the final agreement, which provides the Nisga'a with 1,992 square kilometres of land in northwestern British Columbia, a payment of $196.1 million over fifteen years, access to natural and economic resources, and self-government arrangements that allow the passage of laws "to preserve, promote, and develop Nisga'a culture and Nisga'a language."

In contrast to the generally positive response to the establishment of Nunavut, the Nisga'a treaty provoked substantial controversy, including the longest-ever debate in the British Columbia legislature. Much of this controversy was spurred by the perception that the agreement would enshrine a form of "race-based" government. The treaty does grant certain prerogatives to members of the Nisga'a community in recognition of historic rights and contemporary needs, but it also goes to some lengths to ensure that the interests of the small number of non-Nisga'a residents of the Nisga'a territory are protected, and affirms that the Charter of Rights and Freedoms and other federal and provincial laws continue to apply in Nisga'a lands. In addition, it provides for phased elimination of tax exemptions enjoyed by the Nisga'a under the Indian Act.

Nisga'a Chief and lead negotiator Joe Gosnell has commented that the treaty is a balanced and sensible reconciliation of competing interests that should be celebrated as the proof that people of good faith can resolve their differences without confrontation or litigation. Speaking before the British Columbia legislature, Chief Gosnell emphasized that thanks to the treaty, the Nisga'a would "no longer be wards of the state, no longer beggars in our own lands ... We will be allowed to make our own mistakes, to savour our own victories, to stand on our own feet once again."

There is obviously nothing wrong with vigorously debating the merits of a particular agreement. However, as the Commission has stressed repeatedly, it is crucial that we recognize the unique situation of Aboriginal peoples and Canada's obligations to them. Self-government is an essential component in the range of remedies for past mistakes and current privations.

Jurisprudence

Even as headway towards new governance arrangements was being made, the Supreme Court of Canada was dealing with questions that directly affect Aboriginal rights, and, in some cases, the balance to be achieved between those rights and other concerns.

In the highly-publicized case of R. v. Marshall, the Court upheld the right of members of the Mi'kmaq nation to fish, hunt, and gather resources for a living, while recognizing that this right could be circumscribed by compelling considerations such as conservation of resources and the historic participation of non-Aboriginal Canadians in the economic sectors in question. In recognizing Mi'kmaq rights and acquitting Mr. Marshall of charges under federal fisheries regulations, the Court confirmed the applicability of a 1760 treaty and stated that fisheries and similar rules should allow a "moderate livelihood for individual Mi'kmaq families." The Court encouraged a process of consultation and negotiation in situations where imperatives such as conservation might conflict with treaty rights.

The decision set off a wave of public discussion, and, on the East coast, serious and unfortunate violent outbursts. These incidents were sparked by fear of change regarding the source of livelihood, a lack of understanding between the two cultures, and, on occasion, a regrettable tinge of intolerance.

In the case of R. v. Gladue, the Court confirmed that in sentencing Aboriginal offenders, it is appropriate to take account of the unique circumstances of Aboriginal people - including disproportionate levels of incarceration, serious socioeconomic difficulties, and a traditional emphasis on restorative justice. In Corbiere v. Canada, the Court also struck down the Indian Act's blanket exclusion of off-reserve band members from voting in band elections. The Court held that the Act made a distinction that denied off-reserve Aboriginal people equal benefit of the law. Furthermore, "aboriginality-residence" - off-reserve band member status - was a ground of discrimination analogous to those enumerated in section 15 of the Charter, which sets forth equality rights. The Court did not say that all members living off the reserve automatically had a vote, only that the restriction imposed by section 77(1) of the Indian Act was too sweeping. It therefore suspended this section for eighteen months, presumably to give Parliament enough time to amend the legislation.

These judgments, along with lower-court rulings on related matters, help to define Aboriginal rights and shape their concrete manifestation in modern-day Canada. Like new governance agreements, they underscored both the duty to ensure that Aboriginal people have the means to surmount disadvantage and sustain their cultures, and the importance of identifying strategies that do not conflict with other priorities.

Culture and Communication

Aboriginal peoples are making increasing use of cultural initiatives and communications tools to reinforce their languages and identities. For example, many new Aboriginal sites are being established on the Internet every year, and the government of Nunavut is taking advantage of new technology to link dispersed communities, disseminate information, and reinforce Inuit culture.

Especially notable during 1999 was the Canadian Radio-television and Telecommunications Commission's approval of a licence for the Aboriginal Peoples Television Network, or APTN, which began broadcasting on September 1. Providing programming in English, French, and a variety of Aboriginal languages to over eight million homes, APTN helps preserve and disseminate Aboriginal cultures, and, as the CRTC noted, offers a "cultural bridge between Aboriginal and non-Aboriginal communities."

Building on Strengths

Progress on Aboriginal issues during 1999 can be a source of guarded optimism. After too many years of delay and neglect, tangible results are now visible. However, the Commission must reiterate the view expressed in previous annual reports that the government's response to the 1996 report of the Royal Commission on Aboriginal Peoples has been slow. We would not wish to minimize the significance of steps such as the January 1998 establishment of the $350 million Healing Fund, nor deny the good intentions underlying Gathering Strength, the government's official response to the Royal Commission's report. Nonetheless, much more attention still needs to be given to pressing issues such as urban Aboriginal unemployment and the denial of Indian Act status to descendants of some First Nations women who marry non-Aboriginal men. Arguably too, the pace of self-government talks needs to be accelerated.

The Commission itself was directly involved during 1999 in the negotiated resolution of a longstanding discrimination complaint by the Assembly of Manitoba Chiefs against Greyhound Canada. The signature of a settlement meant that the Assembly's multiple complaints under the Canadian Human Rights Act on behalf of Aboriginal job-seekers have now all been resolved. In some 40 cases, agreements have been reached that require employers to undertake outreach to Aboriginal communities and other initiatives to increase the representation of Aboriginal people in their workforces.

Canadian society has the opportunity to make the new century a period of healing and advancement for Aboriginal peoples. But to do so will require perseverance, understanding, and historical perspective. In an age of sound-bites and impatience, reflectiveness and respect will be needed to address what remains one of Canada's most pressing human rights problems.

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