The Social Union Framework Agreement and the Role of Aboriginal Peoples in Canadian Federalism

Abstract

During the past two decades as Canadians have struggled to renovate their constitutional house so as to improve the workings of Canadian federalism, they have also struggled with the question of where the country's Aboriginal peoples fit in this enterprise. Canada has not developed the same kind of consensus regarding national identity and unity found in the United States. Hence it has not yet been able to definitively complete the process of shaping the federal institutions that will express its basic character. This unfinished agenda and the growing recognition of their right of self-government have given Canada's Aboriginal peoples an opportunity never available to their American counterparts (Franks). They have been able to seek to fashion a place for themselves in the governance of Canada that would reflect their vision of themselves as self-governing peoples within it. A practical aspect of this quest has been their efforts to gain access to the processes of Canadian federalism that shape intergovernmen tal policies that affect their well-being today and could do so increasingly as Aboriginal governments come into existence. This paper will examine the success that the Aboriginal peoples of Canada have achieved by studying the Social Union Framework Agreement of 1999 (SUFA), the most recent statement of how Canada will manage key elements of its intergovernmental relations. Considering the process that produced the Agreement, the contents of the Agreement itself, and its implementation, this paper will argue that what the Aboriginal peoples have accomplished represents very considerable progress. They now enjoy a voice in decisions affecting their well-being that is unprecedented in Canada, and probably elsewhere. However, the Social Union Framework Agreement has also demonstrated that the status of Aboriginal peoples as partners in Canadian federalism has diminished considerably in the last decade. Reconstituting Canada Since the end of World War Two, Canada has sought to revise its constitution and intergovernmental relations to remedy long-standing deficiencies and to take into account changes in Canadian society. The first three decades of this period focused on fashioning a formula for amending the constitution that was clear and that relocated the ultimate authority for amendments from the British parliament to Canada's. A succession of conferences and studies achieved these goals with the proclamation of the Constitution Act, 1982. However, this act and the process that produced it left some pressing issues unresolved. These included the desires of the provinces for increased power through a transfer of areas of jurisdiction from Ottawa to them, for a revision of the amending formula, and for a redesign of the Senate and Supreme Court of Canada. Of particular interest to this discussion, some provinces wanted to constrain the federal government's power. This power is not stated in any constitutional document , but rather represents a convention that the federal government has the authority to spend for any purpose, even for purposes outside its jurisdiction, provided that it does not legislate in these areas. In the words of one leading Canadian constitutional authority, the federal spending power lies at the constitutional heart of the Canadian social welfare state (Banting). This is because it enables the federal government, which enjoys larger revenue-generating capacity than do the provinces, to transfer funding to them to help them pay for the expensive social programs that lie within provincial jurisdiction. Without the use of the spending power, the system of programs that has enabled Canadian governments to pursue social equity since the war would probably not have been possible. However, the benefits of the spending power have come at a price. This is federal government intrusion into the policymaking of the provinces. The federal government funds only those programs that represent its priorities. …