Charter's flaws exposed, even before challenge is launched

Many Aboriginals are not entitled to obtain government-sponsored housing, because they do not live on a reserve. Aboriginal rights are not unlimited rights. They are rights based on past historical dealings with government, which flow from treaties, oral history and the Indian Act.

Paul Okalik, the Premier of Nunavut, is considering launching a Charter challenge against the federal government, claiming it is violating the Constitutional rights of the citizens of Canada's newest territory. The challenge is based on the desire of Inuit people to be treated as equally and fairly as other Aboriginal people in Canada. Okalik claims the new territory is being short-changed: faced with growing pains as it establishes itself, Nunavut faces a $12-million deficit this year. The territory's leaders say their people are not enjoying the same Constitutional rights and economic programs, including medical benefits, housing and employment, provided to Aboriginal persons living in the south. News reports of the contemplated challenge are unclear on the point of whom the challenge is for: is it for all the Aboriginals in Nunavut, or the few who live on its reserves, all Aboriginals in that territory or for the non-Aboriginal people?

Assuming it is a challenge for Aboriginals, it is true that section 35 of the Canadian Charter of Rights and Freedoms recognizes the rights of Canada's Aboriginal peoples, including Inuit; however, there is yet to be a case in which those rights are defined for each Aboriginal person. Our justice system allows for valid challenges to the Charter on a particular right but the courts are reluctant to give an accounting of what Aboriginal rights are, per se. Each individual challenge either affirms or denies a particular right but that is as far as the courts will go -- the Aboriginal right that is before the court in a challenge does not automatically go to each Aboriginal person once affirmed. It belongs only to the person or persons bringing the challenge.

So Aboriginal rights are different for each Aboriginal person. If the premier of Nunavut wants to launch a Charter challenge, the first thing he needs to decide is what rights have been violated. "If you live in a reservation you get housing," Okalik told reporters recently. "But if you live in our territory you don't, even though you are Aboriginal as well." First of all, Nunavut is not a reserve. Secondly, do the Inuit have the particular rights Okalik is seeking on their behalf? It may be true that an estimated 85 per cent of Nunavut's population of 27,000 are Inuit people but what needs to be determined is whether these people have these rights. Many Aboriginals are not entitled to obtain government-sponsored housing, because they do not live on a reserve. Aboriginal rights are not unlimited rights. They are rights based on past historical dealings with government, which flow from treaties, oral history and the Indian Act.

The people of Nunavut, then, must look at their history and past dealings with the government. Are there any treaties that have been violated in the past? Has the government breached its fiduciary duty towards the Aboriginals based on past treaties? Before the premier makes a decision on any challenge he must first find out exactly what the people of Nunavut are entitled to from the government, based on the actual contract for the creation of this territory.

Have the Inuit given up their Aboriginal rights in order to be self-governing? It seems so. Are there past treaties, which have been broken with the inception of this agreement? There is a lot of history, both written and oral, that must be dealt with in order to decide if an Aboriginal right exists and if it has been violated.

The premier may want to look at it from the perspective that the federal government has an obligation to deal with any province or territory because they all form a part of the country. Again, any territory in Canada is ultimately the responsibility of the federal government, which has a fiduciary duty to deal fairly and properly with the people within these territories. The government's responsibility to its citizens does not disappear once a territory is incorporated.

The federal government will want to know what happened to the infrastructure that existed prior to Nunavut becoming a territory. Was it completely destroyed and a new one put in place or do the same procedures still exist? This is an important part of how the territory functions. Many questions need to be answered in order to decide what rights are available for both the Aboriginal and non-Aboriginal peoples. The territory of Nunavut cannot be sustained on the same level as a province, such as Alberta. The natural resources are not the same, the population base is not the same and the people are not the same. Each individual province or territory must be looked at on its own. Just as the standard of living is different between the city and the country, Nunavut's economy will also differ from the economies of its neighbours.

The problems the people of Nunavut face are difficult ones indeed. The fact that most of the population consists of Aboriginal persons makes this problem more significant, based on the oppression, that has been consistent throughout Canadian history, of a people who simply want what they are entitled to. It is not good enough for the government to simply say Aboriginals have rights. The situation Nunavut finds itself in clearly illustrates the Charter's flaws. It is time for the federal government to help all Aboriginal people and put an end to the merry-go-round of who has what rights. Although section 35 of the Charter tells us that Aboriginals have rights, the difficulty is in not knowing what rights.

Leslie Sax is a second year student in the Faculty of Law at the University of Alberta and president of the Aboriginal Law Students' Association.