Want to keep Canada together? Take a lesson from those who know how it’s done: First Nations people

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Douglas Sanderson (Amo Binashii) is Prichard Wilson Chair in Law and Public Policy at the University of Toronto’s Henry N.R. Jackman Faculty of Law, and the co-author of Valley of the Birdtail.

Michael Bryant is a former attorney-general and a former minister of Aboriginal Affairs in Ontario who serves as counsel at Fogler, Rubinoff LLP.

Canada sits on a precipice.

Separatist movements are stirring in both the east and the west. A B.C. trial court delivered a judgment last year that poisoned confidence in fee-simple property rights, even as Aboriginal nations assert political authority over what most Canadians dismiss as “the bush” – an area that makes up more than 80 per cent of the country’s land mass. Meanwhile, neo-colonial and authoritarian voices in the United States are deconstructing the international order that has undergirded a half-century of prosperity, as agents for the Art of the Deal discuss a half-billion-dollar line of credit with Alberta separatists.

And what has the response been from Canada’s First Ministers? Thus far, it’s been name-calling (accusations of “treason”), sports metaphors (entreaties to the idea of “Team Canada”), and, from our Prime Minister, colonial diplomacy and the empty gesture of “respecting sovereignty.”

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We, the Canadian public, have faced these threats with anger and patriotism. But that’s exactly the same playbook as the one that nearly brought us to ruin in the face of the Quebec secession referendum movements in the 1990s. Back then, while the Quebec separatist movement acted with surgical political precision, English Canada replied with clumsy reassurances that “my Canada includes Quebec,” a ham-fisted response to very real political imperatives, and counterproductive in almost every way. In 1995, that season of secession, we came within a hair’s breadth of losing Canada without any rules or playbook in sight.

But in the years and decades since, we patched over wounded Quebec pride with the Clarity Act, a declaration by a prime minister that Quebec was a “nation within a united Canada,” and, eventually, a Supreme Court reference that provided ground rules for separation, thanks to a belated, grudging willingness by federalists to actually think the unthinkable and speak the unspeakable.

This time, we must not bury our heads in the sand nor be distracted by emotion. We must face the politics of disintegration with that most boring – and Canadian – of answers: process, and a commitment to multilateralism. And we should take a lesson or two from the people who have proven their mettle in this, time and time again, for decades: Aboriginal people.

In the years since 1995, Canada has come to face the historic and present-day reality of Aboriginal people, whose stake in the game is not just political, but constitutional – a reality we were not yet ready to face three decades ago. Doing so now means facing the reality that, for instance, the James Bay Cree hold for themselves the northern half of Quebec, and that Alberta is entirely covered by treaties 6, 7 and 8, – and, in smaller part, treaties 4 and 10 – which were signed by the Crown with commitments to the Cree, Salteaux, Sioux, Anishinaabe and Stoney-Nakoda peoples. Given this historical and now constitutional reality, we can no longer entertain the fantasy of the “clean” provincial exit of which separatists dream. That’s the issue at the heart of three Alberta First Nations’ recent requests for a court to rule on whether the provincial separatism campaign fails to account for First Nations’ constitutionally protected treaty rights.

If that sounds complicated or confusing now, just imagine what things were like when Canada originally signed the numbered treaties in which proud and honourable First Nation chiefs sought certainty through deal-making with the federal Crown. Signed agreements meant knowing the rules and seeing the fence posts – a stable background against which futures could be planned. But it turned out that that was a façade, and those same chiefs soon found themselves in a place where the old game had ended, and the new world was confusing and uncertain as power realigned itself across the prairies. Today, Canada’s federal government looks like a moneylender in the temple as the provinces flip tables and demand new arrangements. Canada’s First Ministers are experiencing in some fashion what those treaty-signing chiefs must have felt: the sense that the centre, always contested and dependent on goodwill, can no longer hold.

One bit of good fortune, if we can call it that, is that unlike in 1995, this time we have something more like the contours of a path forward in facing discontented Quebec and Alberta. The secession reference and the Clarity Act set out conditions for orderly separation, and so, if provinces push for exit as their only strategy, Canada now has a process to guide us. But a core problem remains: this path may well lead to separation, and thus to the end of Canada as we know it.

However, in the three decades since the Quebec referenda, Canada has, by way of First Nations, begun down a second path: constitutional renegotiation. This current generation of chiefs are not babes in the wild; they negotiate sovereignty for a living. They have forged a process from long-house wisdom and democratic discernment, patient diplomacy, strategic protest, and patience beyond patience. As it turns out, the very same wells of political discontent that are the tension points in modern treaty negotiations between First Nations and the federal and provincial Crowns – the distribution of powers, wealth, jurisdiction and cultural and economic autonomy – also form the core of Quebec and Alberta’s grievances. In other words, unlike 1995, there is a legal process and experienced negotiators, both federal and Aboriginal, who are ready to face the separatist challenge.

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None of this is to say we should throw our hands in the air and get on with the business of secession. Rather, First Nations leadership has spent the last 30 years demonstrating that through diligent negotiation, hard-fought positions, and steely nerves, the hard questions should be asked because they can be answered. Political borders, financial arrangements, the exercise of exclusive political authorities, tax measures, and on and on – all of these can become the subject not of division, but of political agreement to the benefit of all parties, if those issues are addressed directly.

Canadian federalism often turtles at the sight of threats to political sovereignty; in contrast, Aboriginal leadership stands up straight and gets to work. Now, our First Ministers need to do the same, as partners with Aboriginal leadership. We might begin by borrowing from the 1996 CD Howe paper on Quebec secession rules, which proposed establishing a Canadian Negotiating Authority with federal/territorial, provincial, and Aboriginal seats at the table, ready to negotiate with the would-be Brexiteers in Alberta and Quebec. Give the chair or co-chair positions to Aboriginal leadership, and invite the secessionist pretenders, singing their sovereignty siren songs, to face the music of treaty negotiations: excruciating but fair demands for order, justice, the rule of law, rights, remedies and reconciliation.

There’s a feeling in some corners that Aboriginal people may be emerging as the strongest voice that Canadians have in defending Canada. But that strength comes from the experience Aboriginal leaders garnered through decades of hard-fought constitutional negotiation. Now, non-Aboriginal Canadians need to face the separatist threat, not in spite of, but alongside First Nations leadership.

Federalists need to grow up. They need to stop pouting, self-deluding, or throwing a tantrum when their family seeks greater independence, because the separatist threat is here. The question is how that threat is faced. And Aboriginal people have been managing the forces of political entropy for longer than they know.

There is an old saying: First Nations think of treaties as a wedding, the Crown a divorce. Now more than ever, we need neither nuptials nor splits, but the hard work of unity in the face of changed relationships.