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Who has blocked progress for First Nations people?

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The 1950 Japanese film Rashomon tells the story of a crime as related by four witnesses, who have four very different accounts. The truth of the matter lies somewhere in the conflicting versions; but we're not too sure where. Talking to folks, here in Ottawa, about the current state of Aboriginal Canada is a very Rashomon-like experience.

Ethnic rights? Lack of accountability and transparency? Big salaries for chiefs?

Take, for example, The Consultant, who has done work for Aborginal organizations, who says they can be difficult to deal with, self-interested, and do not always pay up promptly. He recognizes the historic injustices we, of the majority society, have inflicted on First Nations; but is not sure how we might have done things differently. After all, he says, we've done better than Australia, have we not?

Like Pierre Trudeau, many decades ago, and many other Canadians today, The Consultant is uncomfortable with the Aboriginal demand for rights and "privileges" on what he conceives to be an "ethnic" basis. He also worries about the much reported inflated salaries of some Chiefs, the apparent lack of effective democracy on many reserves, and the now-notorious questions of accountability and transparency on reserves such as Attawapiskat.

So, while he has, deep down, a principled belief that Canada must do much better on such basic matters as First Nations education, The Consultant does seem to agree with the view of many commentators (such as Jeffery Simpson of the Globe and Mail) that much of what is wrong in First Nations country is the fault of First Nations people themselves.

No time to bother with C-38 or C-45

As for the proximate causes of the current First Nations movement -- our Consultant must admit that he is quite unaware of the many affronts to First Nations' rights cosseted in the government's two budget omnibus bills. 

Surprisingly for an economist and one-time government official, The Consultant confesses that he has been too busy to pay much heed to the abolition of Navigable Waters protection, the radical changes in the Fisheries Act or any of other Harper government stealth assaults that -- as Immanuel Kant said on first reading the Scot David Hume's Treatise on Human Nature -- roused Aboriginal Canadians out of their "dogmatic slumbers" and gave birth to Idle No More.

Wants Canadians to learn more about First Nations

Another witness in this Rashomon-like drama is all too keenly aware of all of those Conservative government assaults.

He is the highly-respected, Former Senior Public Servant, and he has no use for what Harper has chosen to do through the sneaky mechanism of budget implementation legislation.

He does not think changes to the Fisheries Act, and all the rest, are problematic only because of their impact on First Nations. He worries about their impact on all of us. He also thinks Canadians have a lot to learn about First Nations Treaties and what they mean, and about the concrete situation in First Nations communities. To The Consultant's argument that First Nations people get extended health care benefits and free post-secondary education, unlike the rest of us, the Former Public Servant replies that those are, in fact, very mitigated benefits.

For most First Nations people on reserves, health care means a simple local nursing station. To see doctors or get any sort of serious treatment they have be shipped out, far from home, to a major centre. Well-meaning but often relatively inexperienced and under-resourced nurses have to engage in triage to decide which cases are serious enough to merit the cost of sending patients out for treatment. Then, as well, the social and economic health factors for Aboriginal communities are all bad: lack of proper sanitation, poor drinking water, mouldy and overcrowded housing, hugely expensive food, lack of treatment for drug and alcohol addiction, and much more.

And health benefits, the Former Senior Public Servant explains, such as they are, are only available on reserve.

As for higher education -- again, access is limited by the under-funded and second class primary and secondary education system. That means very few First Nations youth get the necessary qualifications to get into college or university. For those who do qualify, access to free tuition passes through the band councils, and is definitely not automatic.

'Natives are so divided we cannot get anything done'

Our respected Former Public Servant knows all that and much more. But, having worked on the Aboriginal file in government, he also knows that there are huge barriers to getting anything done. And, in his view, the virtual impossibility of reaching a degree of consensus among Aboriginal groups on almost any proposed reforms is one of the highest of those barriers.

However, when you put the following argument to the Former Senior Public servant, he cannot help but to at least partly agree.

The argument is that the Harper government happily proceeded with the many measures in the two budget omnibus bills to which they had to know there would be considerable Aboriginal opposition. Not unanimous opposition, mind you.

Some First Nations bands and First Nations people welcomed changes to the Indian Act to make it easier for bands to lease land, for instance. And some bands and Aboriginal individuals agree that the Navigable Waters Act could be an impediment to economic progress. So the First Nations were divided on these proposals, as on so much else, even if most were not in favour.

Harper didn't worry about that lack of consensus, because First Nations interests were not uppermost in his government's mind. There were other powerful interests at play -- mining and oil companies, for instance.

And so it was full speed ahead and damn all torpedoes, whether from Aboriginals or environmentalists or former Conservative cabinet ministers.

However, when it comes to matters where there are no powerful economic interests at stake, such as First Nations education, any degree of division with Aboriginal Canada is sufficient to paralyze the government.

What is stopping reforms to First Nations education?

The fact is if First Nations education were as much a priority for this Prime Minister as pipelines, oil drilling and mining, he would have done something about it by now.

He would have taken the bull by the horns, confronted the deep divisions among First Nations groups, engaged the provinces, and crafted practical solutions.

The government has the tools it needs on Aboriginal education -- in the form of multiple studies, including its own National Panel that reported last February -- it just lacks the leadership and political will to make anything happen.

The respected Former Senior Public Servant knows that First Nations are simply not a priority for this Prime Minister.

Big betrayal of First Nations: Killing the Kelowna Accord

When former Prime Minister Paul Martin wanted to make the Kelowna Accord happen he invested considerable energy into it, and brought all the players around the table.

On education, just to focus on that one issue, had Kelowna been implemented six years ago, by now it would have made a big difference in the quality of classroom education for First Nations youth, on and off reserves.

Instead, what did Harper do almost as soon as he was sworn-in, in 2006? Scrap Kelowna, even though all provinces and First Nations leaders had agreed to it.

When we talk about the barriers to progress from the Aboriginal side we too easily forget betrayals such as the killing of the Kelowna Accord.

Ditching Kelowna echoes earlier betrayal in the 1980s

The futile series of Federal-Provincial-Aboriginal conferences on self-government that were triggered by the Constitution Act of 1981 (and its now famous "Section 35") were another example of bitter betrayal by the majority society.

In that case, the dice were loaded against the First Nations people.

The conferences were a last minute addition to the package of constitutional amendments that had started as Pierre Trudeau's effort to add an amending formula and Charter of Rights to a "patriated" Canadian Constitution. Until almost the end of that process, more than thirty years ago, First Nations people were almost completely shut out. Then, begrudgingly and at the very end, Trudeau and the Premiers added in Section 35, which recognizes and affirms "existing aboriginal and treaty rights."

The word "existing" is key here, because the white men who signed the deal thought it meant that nothing much would change for the Canadian majority, or for, as they then were called, "the Indians."

The Aboriginal groups wanted much more, back then.

They wanted a positive affirmation of inherent aboriginal and Treaty rights to land, resources and self-government. Lacking leverage, they had to settle for Section 35.

In practice, that Section, has in fact, come to mean far more than the Constitution's "white fathers" anticipated in 1981.

That's why Aboriginal Affairs John Minister Duncan had to say, just the other day, that the government believed it had satisfied Section 35 requirements in its omnibus budget legislation. It is now universally accepted that Section 35 imposes an obligation on all governments to make sure that none of their legislation derogates from the existing Aboriginal or Treaty rights of First Nations. As for the two omnibus Bills, C-38 and C-45, it is, in fact, very doubtful that any government lawyers even examined that Section 35 issue and advised on it, before the government proceeded.

The courts will now decide whether or not Harper's government properly respected its constitutional duty to fully consider the interests of First Nations.

However, back in 1981, the question of self-government institutions, with a fiscal and land base to support them, was paramount to First Nations.

The Constitution's authors pushed any specific response to those demands off to a series of meetings to take place after the new constitutional provisions had been implemented.

And they imposed the new amending formula -- consent of the federal Parliament plus no less than seven provinces representing at least 50 per cent of the population -- on any tangible measures that might result from those meetings.

Failure and frustration because the 'whites' could not agree!

There were four First Ministers meetings from 1984 to 1987 which, in the end, failed to reach the necessary level of agreement. In retrospect, some optimists see the whole exercise as a minor win for First Nations because both the federal government and a number of major provinces, notably Ontario, supported a constitutional amendment that would have created self-government institutions.

In the end, though, the result was failure and frustration.

The consequences for the vast Canadian majority were negligible. Life could carry on as usual. The consequences for Aboriginal Canadians were the bitter fruit of rejection and something quite close to a betrayal of the promise of 1981 with its mitigated "Section 35" victory. Of course, all of this is now somewhat vague ancient history both to The Consultant and to the respected Former Public Servant.

George Santayana's oft-misquoted aphorism about those who forget their history being condemned to repeat it has never been truer.

There are other perspectives in this Rashomon-like tale.

They will have to wait for tomorrow or the next day.

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