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The rebirth of NWT constitutional development


When action is taken by governments that deserve attention and support, even in these times of Covid supremacy for media attention, I feel an obligation to do so.

Premier Caroline Cochrane's recent announcement of a new policy on jurisdiction over resource decisions, made in conjunction with Indigenous Government leaders is a major step forward in our territory, an event that seemed very unlikely under previous administrations. To state that "the protocol recognizes that we are co- governments on this territory, the GNWT is not the higher government, " is a strong and meaningful move.  

As co-chair of the last constituent  assembly held in the NWT on Constitutional Development, in 1996, I remember very well the 200 people assembled from all walks of life in the North, supporting the concept of twin tracks of government in the NWT, public and Indigenous. Coming out of the Bourque Commission of the early '90s with its wide ranging recommendations on structure and power sharing, and in the context of our soon to be status as a territory separate from Nunavut, the assembly was a love-in, a sense of our destiny, as a unique and beautiful part of Canada.  

Within weeks after that, with strong support from the federal government, the GNWT, under Premier Nellie Cournoyea pulled the plug on any funding for that public effort. Subsequent governments have made some efforts, but the strength of those efforts have been less than complete. The public has been taken out of the equation entirely, the work that has been done, has been in negotiation between political units. 

Devolution was the last and largest transfer of authority from the federal government to the public government in the NWT. The original deal was a take it or leave it arrangement designed by the Harper cabinet based upon recommendations by an Alberta crony. The devolution deal sought to change completely the hard fought for rights of indigenous governments. The fact that the GNWT was willing to give up their support of certain indigenous powers to get devolution should surely say to those Indigenous governments that they need to get more formal relationships, bound by a constitutional process. 

One very interesting part of the devolution agreement is Chapter 6. This led me, as the sitting MP, to support the bill. After trying everything to change the poison pill in the legislation, the presence of Chapter 6 in the bill gave me some hope that we could move ahead in the NWT. That section opened the door for the GNWT to enter into shared jurisdiction relationships with Indigenous governments. So the premier's statement, made without the support from the federal government, and I have heard, from her bureaucrats as well, has its strength in legislation. 

Where do we go from here? Are we at the whim of future governments to keep up this idea? Will Indigenous governments be satisfied with words from one premier and cabinet,  lacking a legislated certainty? Will developers ever invest with surety in a territory whose practising jurisdiction is lacking finality? How about we members of the public? Where is our input, our understanding, our approval and our support? 

The Electoral Boundaries Commission which starts this year has been touted by CBC in a headline as a constitutional process. It is not. It is a process to determine the better working of public government. It is not designed to deal with shared jurisdiction. However the public process that is outlined will give some impetus to the question. 

It would be foolhardy to suggest that the Canadian Constitution would be opened up to provide room for the goals of our territory. It would take a large majority of the provinces to include us in their club. Likely the best we could accomplish would be to amend the NWT Act of Parliament to give us a platform for our directions. Over time, as we demonstrate the rightness of our collective vision, more certainty could be demanded. 

We can truly build a unique and noteworthy part of our country, where past injustices are overturned and where Indigenous rights of first peoples form a great and significant path forward. We need the engagement process to start again. 

Perhaps out of our recovery from this shadow of pandemic can bring a renewal of our constitutional efforts. We have learned over the past year how much we need unity of purpose to deal with crisis. 

It may be the best time to  come to grips with that which can unite the people of the NWT.