The New Western Territory:
Balkanization or Federation?

The Commission for Constitutional Development: Richard Hardy, Bertha Allen, George Braden, Jim Bourque (chairman), Les Carpenter, Francois Paulette.

Introduction
When the Nunavut Territory is created out of the present Northwest Territories (NWT) in 1999, what will happen to the chunk of country on the western side of the boundary? In April 1992, the Commission for Constitutional Development in the western NWT presented its final report, which tried to answer this question. At the same time, the commission gave nervous voters in the western Arctic and Mackenzie Valley some assurance, on the eve of the May 4, 1992 boundary plebiscite, that constitutional issues in the West would be dealt with if Inuit left the fold to form their own territory with its own government. The commission's report, Working Toward a Common Future, offers a tantalizing preview of the political balancing act that will have to take place, without the stabilizing influence of the Inuit, if the western NWT is to become a single and coherent political jurisdiction.

The Commission for Constitutional Development (more commonly known as the Bourque commission, after its chairman, Jim Bourque, is an outgrowth of a century of federal-territorial-aboriginal relations. The composition of the commission, the range of organizations funded as intervenors, and the consensus that emerged around the key recommendations in its report appear to show that western NWT politics must take into account increasingly diverse interests, and that the western NWT is fast maturing politically.

The commission's recommendations go beyond the mandate provided to the commission which was simply to provide draft principles for a constitution for a New Western Territory. In addition to this, the commission also proposed that aboriginal and treaty rights and aboriginal self-government be addressed in some detail in a future constitution. The rights of other groups and individuals, including women and workers, are considered in the report, but only tentatively.

Of central importance, the commission proposed a "district order of government" at the sub-territorial level, encompassing community and regional governments, and suggested that they exercise a variety of powers. In addition, the commission sketched out a radically decentralized form of territorial government to complement the proposed district order of government.

The Bourque commission's report was the product of a highly political, skimpily funded, and very rushed public consultation and research process. Despite this, the report faithfully reflects the views and advocacy of individuals and groups that appeared before the commission. The commission's recommendations flow logically from the two following principles, enunciated again and again during hearings:

1. all authority to govern belongs to the people, collectively, and flows from them to their institutions of government.

2. first peoples have an inherent right of self-government.

It is doubtful whether the commission's political masters will act upon the consensus reflected in the report. The failure of the national constitutional process, counter-pressure from proponents of a strong central territorial government and/or strong central aboriginal authorities, and as yet unanswered questions about the practicability and financial needs of district governments militate against acceptance of the commission's recommendations.

The Need for the Commission for
Constitutional Development
Various trends in the political life of the NWT came to a head in the late 1980s and early 1990s, and precipitated the creation of the Commission for Constitutional Development. The most significant of these was the growing success of the Inuit campaign to create Nunavut. In 1987, the Western and Nunavut constitutional forums, representing interests throughout the NWT, signed an agreement in Iqaluit laying out a process of constitutional development which would lead to division of the NWT.

In April 1990, Tungavik Federation of Nunavut (TFN) and the federal and territorial governments signed the Nunavut Agreement-In-Principle which committed the parties to develop a process leading to the creation of Nunavut. Late in 1991 the federal government and TFN representing Inuit, announced that they had concluded a land claim final agreement that promised to divide the NWT when the federal government ratified the land claim agreement. This agreement endorsed a territorial-wide plebiscite on the boundary for division.

At roughly the same time, the western NWT was undergoing internal political changes. The Dene-Metis land claim agreement was repudiated, and regional aboriginal groups including the Gwich'in and later, the Sahtu, began working towards regional land claim agreements. A new constitutional framework was needed to accommodate the changing political landscape. Nationally, aboriginal issues were at the top of the political agenda. Meech Lake, Elijah Harper, and Oka fostered debate about aboriginal affairs, and the North was not immune to this.

Over a decade ago a special committee of the territorial legislature had reported that many residents of the territories did not identify with the NWT as a political entity, and questioned the legitimacy of the territorial government to represent their interests. This concern remained throughout the 1980s, and was not confined solely to Inuit of the eastern Arctic. Lastly, an economic slowdown in the North, evident in 1989, began to hit hard in 1991. The territorial government moved from a position of fiscal surplus to deficit, and this led it to reevaluate its services.

The Commission for Constitutional Development began life in 1991 in the final months of the 1 1th Legislative Assembly. It was sponsored by an ad hoc Committee of Political Leaders, and was funded by the Legislative Assembly. The Committee of Political Leaders consisted initially of the heads of the Dene Nation, Metis Nation and Inuvialuit Regional Corporation, plus a non-native MLA. It has since grown to include the heads of the Gwich'in, Sahtu and Dogrib tribal councils. Representatives of the Association of Municipalities attended the last meeting.

The make-up of the committee remains an issue. The City of Yellowknife recently passed a motion demanding racial balance on the committee, which for a while contained seven natives and one non-native. It is worthwhile acknowledging that following division of the NWT, most people living in the western territory will be non-native. There are no women on the committee. In representation, this committee was initially the same as the Western Constitutional Forum (WCF) which operated in the 1 980s to promote constitutional development, and which in January 1987 signed an agreement in 14aluit with its counterpart, the Nunavut Constitutional Forum, to pave the way for division of the NWT.

The Commission for Constitutional Development
The ad hoc Committee of Political Leaders appointed the following representatives to the commission: for the Government of the NWT, George Braden, a long-term non-native resident, a former government leader and deputy minister of intergovernmental affairs, and a political scientist by training; for the Metis Nation and the Sahtu Tribal Council, Rick Hardy, a lawyer active with the Metis National Council 's constitutional negotiating team, and a former president of the Metis Association of the NWT; for the Dene Nation, Franc, ois Paulette, a Treaty 8 member, former chief of the Fitz-Smith band, and former Dene Nation vice-president; for the Inuvialuit Regional Corporation, Les Carpenter, a Sachs Harbour businessman, and a former mayor of that community; and a neutral chair, Jim Bourque, the former deputy minister of renewable resources, and a former president of the Metis Association of the NWT.

Following these appointments, there were immediate protests by the Status of Women Council and the Native Women's Association that a woman be included on the commission. These protests succeeded. Bertha Allen, a former head of both the Status of Women Council and the Native Women's Association, was nominated to the commission as a representative of the western members of the Legislative Assembly

Mandate
The commission's goal was to develop a comprehensive constitutional proposal to be voted on by the residents of a New Western Territory. The process was split into two phases. The commission's primary purpose in phase I was "to provide the public with clear, basic information about constitutional development and the potential options for the public to consider in preparation for the boundary plebiscite in 1992." The commission was to review previous work, prepare a discussion paper including a set of principles for public consideration, fund appropriate interest groups, hold public meetings and produce a preliminary report in time for the boundary plebiscite. Phase II, which is not yet underway, was to encompass the actual development and ratification of a constitution for the New Western Territory.

Funding and Timeframe
The commission was given insufficient money and too little time to achieve its objectives. Of a total budget of about $1.5 million, nearly half went to intervenors to assist them prepare and present briefs to the commission. The only full-time staff members throughout the commission ' s term were an executive director and a secretary. The commission had access to research and communications staff for part of its term, and used legal services provided bv the territorial government.

The rationale for this "quick and dirty" approach was two-fold: first, the timetable for the NWT-wide plebiscite on the boundary was very short, for it looked in 199l as though the Nunavut Final Agreement would be concluded in 1992. The commission was to complete the first phase of its work before the May 1992 boundary plebiscite, that is, in less than a year. One function of the commission was to reassure western residents that suitable constitutional arrangements would be in place in the West when Nunavut was created. It was hoped that this might induce more western residents, especially aboriginal people nervous about losing the NWT's aboriginal majority, to vote in favour of the boundary. This tactic may have worked. Metis Nation President Gary Bohnet acknowledged recently that many of his people probably voted for the boundary on the assumption that the recommendations of the Bourque report would be implemented.

The second reason for the commission's short timetable was that many decision-makers felt that the WCF had already completed much of the needed preparatory constitutional planning. It may have been assumed by decision-makers that the commission would simply and quickly endorse principles already set-out in the Iqaluit Agreement. The commission's public discussion paper, How Can We Live Together? developed very soon after the commission was established, and before it conducted many public meetings and hearings, reflects this orientation. Curiously, the words "Western Constitutional Forum" and "Iqaluit Agreement" are not mentioned in this discussion paper, or referenced in its bibliography, even though the "Principles and Objectives for a Constitution" put forward in the discussion paper repeat almost word for word the Iqaluit Agreement. The discussion paper only briefly and cursorily mentions regional governments. Neither does it say much about the accountability of government to people, or about the rights of groups other than aboriginal people. In this it mirrors the Iqaluit Agreement, which said the following about regional government:

"the WCF supports regional governments obtaining from the other levels of government: shared responsibility, management and control over certain programs and services, including aspects of education, economic development, local government relations, police services, game management, land use planning and management and of the powers to tax by way of property taxation, business taxes and license fees and amusement taxes.

The WCF does not at present support extend- ing legislative authority to a regional govern- ment in these areas, but the WCF agrees that the community and territorial governments should be empowered to delegate such authority."

Intervenors
The commission funded a broad range of intervenors including the Dene Nation, the Metis Nation, the Inuvialuit Regional Corporation, all tribal councils, the Association of Municipalities, the Native Women's Association, the Status of Women Council, the Federation of Labour, Ecology North, francophones, disabled, and senior' s groups. About 200 people appeared before the commission in two rounds of hearings, providing nearly l00 written submissions.

The recognition that groups other than aboriginal organizations had a legitimate interest in designing a western constitution marked an interesting shift from the thinking that resulted in the Iqaluit Agreement in 1987. It reflected increasing regionalism in the West in the form of tribal councils. In the case of the Gwich'in and Sahtu, this was necessary because these groups had stated that the Dene Nation no longer spoke for them on political matters.

Process and Recommendations
After distributing its discussion paper widely through inserts in newspapers, the commission held a preliminary round of public hearings. This pulse-taking in 12 communities disclosed widespread frustration at local powerlessness in communities and regions outside Yellowknife, and considerable nervousness, bordering on paranoia, by non-natives in Yellowknife. At the summer 1992 Metis Nation assembly, commission chair Jim Bourque said he thought the GNWT, of which he was a part, had been doing a pretty good job, until he got out into the communities and heard what the people thought of Yellowknife. Many of the oral submissions dealt with matters that were, strictly speaking, non-constitutional, such as midwifery or community healing, but individuals who raised these issues quite obviously felt that their concerns had been ignored by the territorial government.

At its first set of hearings the Commission heard oral submissions from 123 people and retired with 45 written submissions. The problem for the commission was how to reconcile the different forms and levels of government which people said they wanted. Proposals included public regional government (long desired by the Inuvialuit); exclusive aboriginal governments with sovereign powers for Treaty 8 First Nations; and guaranteed representation in the Legislative Assembly, and a land base for the Metis. Few submissions referred to the work of the WCF or the Iqaluit Agreement. The Commission had access to some of the advisors working for national aboriginal organizations, and assumed that an inherent aboriginal right of self-government would be entrenched in the national constitution.

The district government concept adopted by the commission is similar to the aboriginal order of government that was included in the ill-fated Charlottetown Accord. An order of government exercises its own, not delegated powers. The commission's idea proceeds from the populist notion that power belongs to the people, and may be delegated up to governments, rather than down from them, along with the notion that aboriginal people are entitled to their own exclusive governments. However, a large racially mixed municipality could also qualify as a district, if its people wished.

The commission went so far as to specify that aboriginal First Nations may opt out of the New Western Territory constitutional process in favour of a direct link with the federal government. A separate aboriginal power of consent over the new constitution was also provided.

The commission produced an interim report in February 1992. After presenting it at a press conference in Yellowknife, the commission took its report on the road to another nine communities. Seventy-five people made oral presentations, and 44 written submissions were received.

Reaction to the district government concept was generally favourable, especially in communities and regions outside Yellowknife. Yellowknifers generally reacted with dismay. There was no response from the GNWT. Some groups, such as Ecology North, the Federation of Labour and the Status of Women Council wanted stronger statements of their rights than the nonjusticiable social charter proposed by the commission. There were as well many people who wanted to see a greater elaboration of what might be meant by guaranteed representation in legislatures for aboriginal people and women. Commission members felt, after the second round of public hearings, that the concepts proposed in the interim report were basically sound. Commission members met for seven negotiating/drafting sessions in April 1992 to deal with outstanding items and to agree on the text of their final report.

That power comes from the people, collectively, and should be delegated from people in communities to regional and central governments was a recurring theme in presentations to the commission. This principle has attracted opposition by some who favour a strong central territorial government. The commission also looked favourably on such populist mechanisms as proportional representation, referenda, and recall of elected politicians. Elaboration of these tools for democracy was left to phase II.

Discussion among the commission members was long, intense and exhausting. The most difficult and lengthy discussions were those respecting aboriginal rights. Recommendations dealing with aboriginal rights are spelled out in detail in the final report, and go beyond the Charlottetown Accord's context clause.

A special effort was made to accommodate the concerns of treaty Dene. The commission recommends specific land rights for both treaty Dene and the Metis, which goes far beyond the treaty implementation clause included in the Charlottetown Accord. Nevertheless, it is unclear whether this recommendation is acceptable to treaty Dene in the southern portion of the Mackenzie Valley. The commission failed to reach a consensus on a large number of issues, including rights of workers and women. These issues were referred to phase II of the constitutional development process.

During the summer of 1992, the chairman and various members of the commission took the report to the aboriginal assemblies. It was a difficult summer, with the Dene Nation pre-occupied with internal problems, and the national constitutional debate taking centre stage. The Metis Nation endorsed the report by a unanimous vote of local presidents. The Inuvialuit Regional Corporation, and the Gwich'in, Sahtu and Tli Cho tribal councils also endorsed it.

The Dene Nation tabled and did not vote upon the report, on the advice of Deh Cho MLA Sam Gargan, a member of the assembly's special constitutional committee. Gargan said he thought that what was coming through reform of the national constitution would be a better deal for aboriginal people, apparently not realizing the extent to which the recommendations of the Bourque commission dovetailed with national constitutional proposals. In any event, only two out of five regions were represented at the 1992 Dene Nation assembly.

The report was tabled, but not debated in the Legislative Assembly. Debate was delayed to see if the Charlottetown Accord would be approved in the national referendum. It now seems likely that the report will be discussed in the Legislative Assembly early in 1993.

Conclusions
The Commission for Constitutional Development started out as a mechanism to legitimate the constitutional principles defined in the 1980s by the WCF and incorporated in the Iqaluit Agreement of 1987. It was temporarily useful as an assurance to Nunavut MLAs that western leaders were serious about promoting division of the NWT, in spite of opposition to the division boundary from the southern Dene. The commission's report reassured some western aboriginal people, particularly Metis, that their interests would be looked after in a New Western Territory. The report, in fact, is something of a wish list of aboriginal rights. This may explain the lack of objections from the GNWT during the public hearing process and to the discussion paper and interim report.

Politics in the NWT and political aspirations are quite different today than five years ago. As a result, the commission came to conclusions and recommendations dissimilar to those of the WCF. Among these political differences were the rising social movements in the North; new patterns of aboriginal identity associated with tribal territories or regions; regional land claim negotiations; national constitutional renewal, including the very real possibility of the entrenchment of the inherent right to aboriginal self-government within the national constitution. The commission asked the GNWT on several occasions to assess the financial impact of its recommendations, and received no reply.

As a result of these factors and the balance of interests on the commission itself, the group came to very strong conclusions on aboriginal rights in a New Western Territory constitution, and endorsed the district order of government as an umbrella principle for the many forms of government western residents desire. Commissioners acknowledged, though much less strongly, the presence of cross-cutting interests, such as women, business, labour, senior citizens and the disabled.

Will the Bourque Report End Up on the Shelf?
The commission raised expectations, particularly in smaller aboriginal communities that constitutional issues in the North will be dealt with. Pressure is now being exerted on territorial MLA's to address the recommendations in the report. The report of the Bourque commission has been criticized as a recipe for "balkanization," in the western Arctic. This is by no means the intent of the commission. Rather, the commission envisages a federation of governments and peoples in the western Arctic.

District governments could compete more effectively with central government than current tribal councils and municipalities. Some districts, such as the Tli Cho (Dogrib), may want their central government representative to be appointed directly by and to be accountable to the district/tribal council. In this situation the government leader in the New Western Territory might be little more than a figurehead. On the other hand, it can be argued that the current territorial govenment, which operates on the basis of "consensus", is in dire need of additional checks and balances to promote accountability to the public. If this is not conducted by district governents, it may be that political parties should be introduced. The current situation in which members of the territorial cabinet are accountable solely to MLAs will surely not be tenable much longer.

The commission did not propose the abolition of the territorial government. Instead, the role of this government was defined as one of standard-setting and regulation making. As such, the territorial government may very well serve the needs and priorities of the districts. Some people argue that districts would compete with each other for business, especially if they had taxing powers. This seems unlikely. In light of high prices in the NWT and the continuing need for massive financial transfer payments from Ottawa, there is little leeway to alter taxation rates in the NWT. Districts are likely to decide that the costs of administration alone makes tax collection a good function for the central government to retain, except perhaps in the case of treaty First Nations.

Adoption of the recommendations of the commission may not, in fact, result in a system of government all that different from what is being put in place now through the GNWT's community transfer initiative. Community transfers, however, are delegations of administrative responsibility. District governments envisaged by the commission would exercise power in their own right. The difference lies in who has the final authority.

An argument has also been made that there is a need for a strong central government in the western NWT to ensure some relative autonomy from federal control. This argument is puzzling. The GNWT continues to receive the lion's share of its funding from the federal government, and has major policy parameters set for it by the federal government. This will remain the case, formally or informally, under whatever constitutional regime prevails in the North.

District government should not prevent the various regions from banding together to lobby the federal government. There will be trade-offs, too, as districts arrange to support each others' interests in return for future considerations. A federation of autonomous districts, which, unlike the current GNWT, might be accepted as the legitimate voice of the people of a New Western Territory, need not be disunited or powerless in approaching the federal government.

Others argue that a strong central government is needed to stand up to the forces of multinational capitalism in the western NWT. Again, this is a puzzling criticism, since to date, the GNWT has not acted as much of a check on these forces. Indeed, the current territorial government encourages non-renewable resource development by multinational corporations. The NWT Federation of Labour has opposed the transfer of responsibility for labour relations from the federal government to the territorial government, for that reason, among others. A counterweight to the multinationals is much more likely to come from the social movement sector, which should be modestly strengthened in the western NWT if the commission's recommendations are implemented. Guaranteed representation for women in government boards and agencies is seriously considered, for instance. Some also believe that there is a trend to elect or appoint less progressive candidates in smaller governments. No such trend is discernible to this author.

There are legitimate concerns about the cost and workability of district government. The commission did not receive the feedback it requested from the GNWT to cost this concept. But in practical terms, the form of government envisioned by the commission is unlikely to look a great deal different from, or cost more than, the current government's efforts to decentralize agencies to the regions and carry out community transfers. As noted in the GNWT's own program review report, Strength at Two Levels, the GNWT is already the country's most decentralized government. A structure of regional offices and agencies is already in place and ready to receive political direction from district governments.

The commission's report deals at length with the aspirations and goals of aboriginal peoples, and less so with the concerns of others. Yet a draft western territory constitution will have to be approved by the public at large through a referendum. As non-natives constitute over 50 per cent of the population of the western Arctic, it will be most interesting to see if the aboriginal agenda contained in the Bourque report will be supported.

The failure Qf the national constitutional process may mean that there is less reason for non-natives to tolerate or support divergent forms of aboriginal self-government in the western NWT. The Charlottetown Accord would have given aboriginal people a justiciable process and a timeframe for negotiating self-government. Constitutional development in the western NWT-or at least, some formal change in the powers of communities and regions-may proceed, but perhaps more slowly and in a more piecemeal fashion than the commission envisioned, and this may be worked out through regional land claim and treaty land entitlement negotiations.

Finally, it must be said that support for the Bourque report among members of the Committee of Political Leaders itself is divided. Furthermore, MLAs are not likely to be happy with the diminution of power the report implies, whatever the sentiment in their regions. The public in the NWT has few means of influencing either group.

Whatever happens in the near future in the Legislative Assembly, the political and constitutional status quo is unlikely to provide the stable base needed to address problems of ethnic and regional imbalance. An accelerated community transfer program, regional land claims with attached self-government agreements and work in the Treaty 8 region on treaty land entitlements will go forward in any event. The final result may be the very one many in the western NWT want to avoid: balkanization.

Marina Devine is a Yellowknife-based journalist and was a staff member to the Commission for Constitutional Development.