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Federal Politics

How Pierre Trudeau Relented on Indigenous Rights

BC’s own late, great Ian Waddell urged and helped craft crucial Section 35. Here’s his account.

Ian Waddell 23 Apr 2021 | TheTyee.ca

Ian G. Waddell, QC, was an MP and provincial cabinet minister, and is the author of Take the Torch. He died on March 15, 2021, at the age of 78.

[Editor’s note: Ian Waddell, who died on March 15 at the age of 78, was instrumental in erecting a number of milestones of Canadian law and politics. As a young storefront lawyer in Vancouver’s Downtown Eastside, he co-launched and won the first consumer class-action lawsuit in Canada. He then served as aide to Justice Thomas Berger on the momentous Mackenzie Pipeline Inquiry that cited threats to the environment and Indigenous rights in spurring a moratorium on the project. He served 14 years as an NDP member of Parliament representing ridings in Vancouver and Coquitlam, and then a term as an NDP member of the B.C. legislature, helping to craft and win the bid for the 2010 Olympics.

“I have a revolutionary idea about law,” Waddell says in his 2018 memoir 'Take the Torch.' “That it is about justice and can be used to change society.” One evening in the late 1970s, he was sitting by a campfire with Harry Chingee, Chief of the Sekani People in their territory in the norther interior of B.C., when logging trucks roared by. “Are they your trucks?” Waddell asked Chingee, who replied: “Are you kidding? They belong to the logging company, and they come and go as they please.” That crystallized Waddell’s desire to help achieve recognition of Indigenous rights in Canada. More than a decade later, as an MP, he did so quite dramatically — by participating in the drafting of Section 35 of the new Constitution of Canada. Drawn from chapter six of 'Take the Torch,' here is Waddell’s telling of the events.]

In the 1980 referendum on Quebec’s sovereignty, Prime Minister Pierre Trudeau led the federalist side against Parti Québécois Premier Réne Lévesque and the separatists. Canada was lucky to have him there. When he was prime minister, Joe Clark had decided to leave the fight to the province’s opposition leader Claude Ryan. It’s impossible to predict what might have happened without federal involvement, but Trudeau and other federal Liberals campaigned actively against separation, and on May 20, 1980, just three months after Trudeau’s Liberals regained power, the “No” side against sovereignty won 59.56 per cent of the vote.

In a speech he gave in Montreal during the campaign, Trudeau stated that the referendum indicated the need for change and pledged that if the result were “No,” he would work with the premiers to “renew” Canada’s Constitution.

Trudeau was mindful that in the 1980 election, his Liberals won only two of 75 seats in the four western provinces. They didn’t have a seat west of Lloyd Axworthy’s in Winnipeg. Even though he had a majority government, Trudeau knew he would have more influence in the constitutional discussions if some members of his cabinet came from the West. To this end, he was in talks with NDP Leader Ed Broadbent about taking some of our western NDP MPs into the government as cabinet ministers, though we MPs were not aware of this.

On the night of the press gallery dinner in May, I was invited to the Toronto Star pre-party. From there I went to the dinner and then the after-party at the Press Club in the wee hours of the morning. I have only been drunk a few times in my life, and this was one of them. I faintly recall standing in the Press Club, across Wellington Street from the Parliament Buildings, with the prime minister’s chief of staff Jim Coutts in our group. I learned later he was a serious teetotaler. He was talking to me when I looked at him, turned around, and ran to the toilet to barf. That’s as close as I got to a federal cabinet post.

THE NEW CONSTITUTION

A constitution is the fundamental law of any country, the rules by which it governs itself. In 1980, Canada’s Constitution was essentially the British North America Act of 1867, which was an act of the parliament of the United Kingdom. Any significant changes to that Constitution had to be made by the British parliament. In the wake of the Quebec referendum, Trudeau’s plan was to “patriate” the Constitution — to bring it home so we could make changes ourselves rather than running over to London to ask politicians there to do it for us. However, when Trudeau sat down with the provincial premiers to discuss how to bring the Constitution to Canada, they couldn’t reach an agreement. They couldn’t, for example, agree to an amending formula, which set out how the first ministers would change the thing once it was a Canadian law.

After numerous meetings with the provincial premiers, and numerous tentative agreements that failed when provinces backed out or refused to support him, Trudeau rather courageously offered his own constitutional package, which included a Charter of Rights and Freedoms and the promise of a national referendum on the amending formula. He introduced his proposal in the House of Commons on Oct. 6, 1980. Of course, this stirred up a furious debate among politicians and also among the citizens of Canada. Trudeau soon found that only two provinces, Ontario and New Brunswick, supported his plan. The others, the “gang of eight,” were vehemently against it.

Quebec wanted a veto on any constitutional amendments; Saskatchewan and Manitoba were against a court-interpreted charter; Alberta, Newfoundland and Saskatchewan wanted protection of provincial resource control embedded in the Constitution; and so on.

Ed Broadbent came out rather quickly in support of Trudeau’s package, to the consternation of many MPs in his caucus. B.C. MPs Jim Manly, Jim Fulton and I wanted Aboriginal rights included in the charter, while Pauline Jewett and Margaret Mitchell (also from B.C.) wanted women’s rights included. B.C. MP Svend Robinson wanted the charter strengthened generally. Lorne Nystrom and Simon De Jong wanted Saskatchewan’s concerns addressed.

When Ed came to British Columbia to speak at a fundraiser in late 1980, I invited him to join me at Nibbles restaurant, near Vancouver City Hall, after the event. I was a regular at Nibbles and knew the staff. The restaurant was owned by Laurier LaPierre, a staunch Quebec federalist and invaluable sounding board for Svend Robinson and me during the constitutional debates. So I figured this was a good place to take Ed. But the two of us got into a loud debate. I told Ed that a lot of us in the caucus could not support Trudeau’s constitutional package. Ed’s handlers got really nervous about our noisy argument, especially when a group of off-duty CBC reporters showed up (it turned out they were more interested in eating and drinking than listening to Broadbent and me).

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Ian Waddell, when an NDP MP from Vancouver in the 1980s, with Ed Broadbent, then-leader of the federal NDP, at right. In his memoir, Waddell calls Broadbent ‘one of the most remarkable Canadian politicians.’ Photo from Take the Torch.

As we argued, I was also asking the Nibbles staff to find a cigar for Ed. You could smoke in restaurants then, and Ed liked Cuban cigars. Chris Price, a great waiter and another friend of Laurier, ended up going down the street to find a cigar. When he returned, I lit Ed’s stogie while we continued ferociously arguing.

Ed was not happy when I told him his MPs from Western Canada were not going to go along with the deal. He was, overall, a democrat, and as a former professor he was prepared to argue issues without taking it personally. That night amidst the cigar smoke, the scared assistants, the loud discussion and nearby journalists, neither of us changed the other’s mind.

NDP leaders in Western Canada were also outraged by Broadbent’s support of Trudeau’s package, each for different reasons. Ed flew into Calgary secretly to meet with the western leaders, including Dave Barrett of B.C. The meeting, held at the Delta Hotel by the Calgary airport so the press wouldn’t see Broadbent, was tense. The westerners felt Broadbent had not consulted them adequately before jumping to support the constitutional package. Peter Puxley and Davis Swan were present as Ed’s advisors. When Puxley attempted to take notes, Barrett grabbed his pen. Poor Ed was under a lot of pressure, and I’m not sure if the Calgary meeting provided any relief.

GETTING THE UK AMBASSADOR KICKED OUT

The House of Commons debate over the constitutional package continued into the new year. In February 1981, I was at another party (not wanting to sound like a party animal here, even though I am one). This was a skating party at Ed and Lily Schreyer’s house in Ottawa. Of course, their house was stately Rideau Hall because Schreyer, a former NDP premier of Manitoba, was the Governor General of Canada.

At one point I found myself in a group discussing the Trudeau constitutional package. A chap with a British accent asked me why the NDP, with a majority of its MPs from Western Canada, was supporting Trudeau when it seemed against the interests of the West. I couldn’t reveal how divided we were, so I gave a weak defence, concluding lamely with, “It will be passed by Britain anyway.”

“Don’t be too sure of that,” replied the well-dressed Englishman.

“Why do you say that?” I asked.

“Because I’m the British High Commissioner.” I was speaking to the U.K. ambassador to Canada! Jim Manly was standing beside me, and we were both a bit shocked. Next morning at caucus I offhandedly mentioned the incident to Ed Broadbent. I was stunned when later that day in question period, Ed put a question to Mark MacGuigan, secretary of state for external affairs, mentioning U.K. ambassador Sir John Ford and me by name. One of my first thoughts was, Nobody is going to invite me to another cocktail party!

Sir John called a press conference, and Trudeau complained to British Prime Minister Margaret Thatcher behind the scenes. Editorials in most Canadian papers protested Britain’s involvement in Canadian affairs. The one in the Toronto Star said, “End British Meddling”; the Montreal Gazette accused Britain of “over-stepping bounds.” Trudeau had more of a sense of humour, making a quip about the current Star Wars instalment, The Empire Strikes Back. Sir John was recalled to London, or so I thought.

I had my second drink with Sir John Ford 33 years later at the home of his sister, former Vancouver city councillor Marguerite Ford. I was a little apprehensive. Did he think I’d got him kicked out of Canada?

He laughed and told me he had already been planning to retire, and the government was well aware of that. Sir John had gone on to a career in the private non-profit sector. We had a nice chat, and he gave me a unique insider’s look at a history I had been part of. Sir John had just been doing his job. The political atmosphere at the time was tense, and he may have been using me to get a message to Trudeau. The Kershaw Report in the U.K. had recommended that the British House of Commons not pass Trudeau’s package. Trudeau didn’t have the votes in the mother of parliaments, and Sir John thought he should know that.

THE BIRTH OF SECTION 35

Tired. I remember being very tired. The lethargy seeped into my eye sockets. My legs were sore. I was dragging myself from the floor of the House of Commons out to the granite lobby and up six floors to Ed Broadbent’s office, 653C, then over to my parliamentary office in the Confederation Building, west of the Centre Block. There the phone wouldn’t stop with calls coming from my constituency office almost 5,000 kilometres away in Vancouver.

At the same time, I felt that my mind had never been so alert. I was exhilarated because the movement for constitutional renewal had given me a cause. I was fighting for the rights of First Nations in Canada. Most of the calls from my constituency office dealt with immigration problems, many of them involving Chinese Canadians and South Asian Canadians who made up a majority of my constituents. None dealt with Aboriginal Canadian matters. But that didn’t matter. As Tom Berger had said to me in Yellowknife years earlier, “You’ve got the religion.”

My involvement, indeed passion, for Indigenous issues came about unexpectedly. As a young Scottish immigrant to Canada, I first saw Indigenous peoples when I was a teenager, and then only fleetingly as my dad drove us through a small reserve near Lake Couchiching north of Toronto. It was not until I was a young criminal lawyer in Vancouver at Main and Hastings that I began to appreciate the tragedies and injustices that enshrouded Canada’s Indigenous peoples. As counsel to Tom Berger during the Mackenzie Valley pipeline inquiry, I began to see an answer to their plight: Indigenous peoples could regain real political and economic power within the modern Canadian framework through the recognition of Aboriginal and treaty rights.

The scope of those rights became clear to me during Judge Berger’s countless meetings from Old Crow to Fort Smith as the people spoke of their love of the land, and their use of that land for hunting and fishing from “time immemorial.” I heard that they had governed themselves for generations before the arrival of the white man; that they had never surrendered the title to their land. But they had lost access to the land and the resources that went with it. As Harry Chingee had told me a few years earlier, they wanted “a piece of the action.”

Fellow lawyers Jim Aldridge and Don Rosenbloom were keeping me up to date on their work with the Nisga’a in northern B.C., whose Calder case heard before the Supreme Court in 1973 established that First Nations did have title to the land when colonizers arrived, but didn’t determine whether that title still existed. I came to realize this moment of constitutional renewal might be the opportunity they needed.

In the latter part of 1980, the constitutional debate was taking place in joint hearings before the Senate and House of Commons. My friend Jack Woodward had appeared there as counsel for the loquacious and determined Chief George Watts of the Nuu-chah-nulth Tribal Council, who was arguing for a clause protecting Aboriginal rights. In the midst of this, I attended a ball hosted by Governor General Schreyer at Rideau Hall. As I returned to my table with a glass of red wine in each hand, I came face to face with Prime Minister Trudeau. “Oh,” he said, “here’s the fighter for the Indians!”

Perhaps it was the fact I couldn’t use my hands; perhaps it was my legal discussion just the weekend before with Rosenbloom and Berger; or perhaps it was fate. In any case, I blurted out an impassioned plea: “You know, prime minister, you don’t have to take the side of the reactionaries in the justice department. You could go with the progressive reasoning of judges like Spence, Hall and Laskin in the Calder case.”

“Well the NDP, your leader, has given the package his support.”

I was now holding the two glasses like swords, waving them slightly. The wine was almost spilling. “Don’t be sure it will pass our caucus,” I stammered. (It’s not well known, but unlike other political parties, the NDP caucus operates on the principle of a majority vote, so the MPs may decide not to follow the leader’s decisions.) At this point, one of my colleagues grabbed me and moved me away, remarking that my face was as red as the wine.

Now Trudeau was the man who in 1969, before the Calder decision, had called Aboriginal rights “historical might-have-beens.” To his credit, Trudeau did change his mind. This may have been because he needed the NDP’s backing for his constitutional package — he had only two provinces on board, and no support from Western Canada. But whatever the reason, he sent his loyal lieutenant, the Justice Minister Jean Chrétien, to negotiate our support. That is why I found myself in Broadbent’s office a few days later.

As chance would have it, Don Rosenbloom was in Ottawa and I asked him to join me, Ed and Marc Eliesen. Jack Woodward happened to be back in Ottawa, and I put him to work as well. Eliesen concentrated on drafting the amendment (now Section 92A of the Constitution Act, 1867) which clarified that the provinces controlled their resources. This would bring key provinces aboard.

I concentrated on the Aboriginal rights amendment. Chrétien was at first reluctant. “I have to report to the boss, you know,” he said. But he hung in there. We discussed the issue and its potential ramifications. I also knew that he was under intense pressure from Aboriginal groups who were literally camped in offices, buildings and even tents around downtown Ottawa.

A vote was called in the House, so we took a break from the negotiations. Then I scurried back to my office in the Confederation Building to find Woodward at the typewriter drafting a clause himself. He was the only one of us who knew how to type. I took his draft back to Rosenbloom. Don and I thought the wording was too general, so Don went next door to Ed’s secretary’s office and called his office in Vancouver.

Section35Draft.jpg
Ian Waddell’s draft of Section 35, now in Canada’s Constitution.

Ed Broadbent talked to Tom Berger and came back saying Berger had advised us to keep the wording general in order to give the courts space to develop the law. We took Jack’s draft and tweaked it — made it simpler, really, and that eventually became Section 35.

Here is the tweaked version: “The aboriginal and treaty rights of the aboriginal peoples of Canada [as they have been or may be defined by the Courts] are hereby recognized and affirmed [and can only be modified by amendment].”

We gave this to Chrétien, who took it to the joint parliamentary committee co-chaired by MP Serge Joyal and Sen. Harry Hays. The bracketed parts were removed as redundant.

Harry Daniels, president of the Métis National Council and the Native Council of Canada, had been attending the committee hearings representing the NCC. He grabbed Chrétien by the lapels as he was going into the committee and told him not to forget the Métis. Svend Robinson, a member of the committee who was standing nearby, scribbled down a definition — “‘Aboriginal peoples of Canada’ includes the Indian, Inuit and Métis peoples of Canada.”

I have always thought that if there is a heaven, a prominent place should be reserved there for Harry. I suspect Svend doesn’t believe in heaven, but if he does end up there, he should also get a prominent place!

THE CONSTITUTION EXPRESS

The House of Commons passed the draft constitutional agreement in February 1981. However, several provinces challenged Trudeau’s plan to unilaterally patriate the Constitution. When the Supreme Court ruled in September 1981 that such an act might be legal but violated existing constitutional conventions, the prime minister was forced to go back to the premiers one more time.

On Nov. 5, 1981, the feds finally reached a deal with the provinces — all except Quebec. In the process, the clauses that had entrenched Aboriginal and treaty rights, and women’s equality rights, in the new Constitution were somehow removed. What was affirmed in February was rejected in November. Tom Berger responded to this in a speech he gave at Guelph and later in an op-ed piece he wrote for the Globe and Mail:

“No words can deny what happened. The first Canadians — a million people and more — have had their answer from Canada’s statesmen. They cannot look to any of our governments to defend the idea that they are entitled to a distinct and contemporary place in Canadian life. Under the new Constitution the first Canadians shall be the last. This is not the end of the story. The native peoples have not come this far to turn back now.”

Judges are not supposed to speak on political matters, as they must be seen to be impartial. But should a judge remain silent when, by speaking out, he may prevent a great injustice to a minority? Tom Berger put his judicial career on the line.

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Passengers on the Constitution Express, trains carrying hundreds of people to Ottawa to press for recognition of Indigenous rights in the Constitution of Canada. The result was Section 35. Photo via the Union of BC Indian Chiefs.

George Addy, a conservative judge on the federal court, complained to the Canadian Judicial Council about Berger’s actions. And on Jack Webster’s TV show in Vancouver, Trudeau was asked whether a judge should speak out on a political issue. The prime minister gave the standard answer, “No.” When pushed, he added rather petulantly that he hoped the other judges would do something about it. This drew headlines and put Berger in an almost impossible position.

On Dec. 15, 1981, I wrote to Trudeau in Berger’s defence:

“I am writing to you to ask you to recall our short conversation on the evening of the historic vote on Canada’s new Constitution. You may recall that, at that time, I asked you about your recent criticism of Justice Berger.

“I got the impression that you were unaware that at the Annual Meeting of the Canadian Bar Association on Sept. 2, 1981, Mr. Justice Berger defended your original constitutional package during the course of a panel discussion. His remarks were widely circulated in the lawyers’ journals and appeared in the press in western Canada. He was virtually the only voice in western Canada to so strongly support unilateral action.

“You may be right that, as a judge, Justice Berger should not have made comments on native matters during the constitutional debate, but you must remember the absolute special place Justice Berger has in the hearts of our native people. Your government had the foresight — as it turns out — to appoint him to the Mackenzie Valley Pipeline Inquiry, which now has given Canada a worldwide reputation as a country that honestly tried to struggle with the implications of development on the frontier.

“Who knows what the future holds for the eventual settlement of matters concerning our native people, but I remain convinced that your initiative in putting the native guarantees in the Constitution (no matter how much criticized now) will be seen as a statesmanlike act. Judge Berger takes that view and said so. He also defended your Charter of Rights. Considering his position of trust among native people, Canada may need him in the future to work with our native people.

“Your remarks could potentially undercut his position and I would hope that, at some time, somewhere, in your future public remarks you might take the opportunity to temper your criticism with some positive comments. Otherwise, I feel an injustice may be done.”

Trudeau responded:

“You are right: I was unaware of Justice Berger’s statement to the Canadian Bar on Sept. 2, 1981. It was a superb statement, and I am thankful that you brought it to my attention.

“But it was made late in the game, and in a forum scarcely designed to get wide coverage. Whereas Berger’s attack on that accord was made in the Globe and Mail, and at that time when even your Party was not certain of supporting the accord so painfully reached.

“The paradox remains. Berger supports us in an esoteric forum, perhaps as might befit a member of the Judiciary. But Berger attacks us in a hostile ‘national’ political newspaper, as hardly befits a judge.

“But have no fear. I have no lasting grudges, nor have I the disposition to pursue them. And Berger will suffer no injustice on my account!”

I made public the response, and the Judicial Council eventually cited Berger for an “indiscretion,” contrary to the council’s committee report, which had advocated his removal from the bench. Chief Justice of the Supreme Court Bora Laskin wouldn’t let the matter drop and spoke out against Berger. In the end Berger resigned from the bench. He spoke out and he paid the price. That’s what civil disobedience is all about. It probably cost him a future appointment to the Supreme Court of Canada, which was a great loss for Canada. But his unique voice made a difference in the constitutional debate.

Bora Laskin was my law professor, Tom Berger my mentor and Pierre Elliott Trudeau my opponent whose intellect I secretly admired. One was the Jewish son of a Thunder Bay jeweller, another the Protestant son of a Saskatchewan RCMP officer and the third the Catholic son of a Quebec businessman and Scottish mother. I had the privilege of knowing all three of them up close. They couldn’t have been more different, but they shared almost exactly the same federalist view of Canada. If the Judicial Council had tried to impeach Berger, or if the government had failed to put Section 35 back into the constitution, I believe Broadbent and our NDP caucus would have withdrawn our support for Trudeau’s package, which would have tied the House of Commons up in knots!

As it was, Aboriginal leaders and allies like Vancouver lawyer Louise Mandell flocked to Ottawa by train, the “Constitution Express.” They forced Trudeau and the premiers to restore Aboriginal and treaty rights in what is now Section 35. The word “existing” was added to placate some premiers, but that had little effect. In fact, courts have subsequently said that the word reinforces the phrase “recognized and affirmed.” The rights truly exist! So this actually helped Indigenous people. Here is how the clause we wrote now reads:

Chapter 6
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
Recognition of existing aboriginal and treaty rights

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Definition of “aboriginal peoples of Canada”

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

As I look back on the negotiations, I think of the moral courage of Ed Broadbent, who had to step back from his original approval of the package and tell that to a no-doubt-angry Trudeau. I think of Tom Berger, who put his judicial robes on the line. And there was Pierre Trudeau himself, who had the intellectual courage to listen and change his mind.

There were George Watts, Jack Woodward, Don Rosenbloom, Jim Aldridge and Jean Chrétien, who all worked tirelessly.

Above all, there was the steadfastness of the Indigenous Peoples, not only their leaders in offices throughout Canada, but also the voices and the drums that I had heard in all those villages and fish camps. They beat away our fatigue and kept us going that fateful January night in Ed’s office on Parliament Hill.


This portion of 'Take the Torch' is reprinted, slightly abridged, with permission from Nightwood Editions.  [Tyee]

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