Native Claims Native Claims 163

THE REPORT OF THE MACKENZIE VALLEY PIPELINE INQUIRY 11 Native Claims Native Claims 163 The paramount cry of the native people of the must be seen as the means to the establishment Government of Canada’s fulfilment of its North is that their claims must be settled before of a social contract based on a clear constitutional obligations. a pipeline is built across their land. In this understanding that they are distinct peoples in In considering the claims of the native people, chapter, I shall outline the history of native history. They insist upon the right to determine I am guided primarily by the testimony that the claims in Canada. This history is important their own future, to ensure their place, but not Inquiry heard at the community hearings in the because the concept of native claims has assimilation, in Canadian life. And the North. No doubt the native organizations will, in evolved greatly in recent years: they have their Government of Canada has now accepted the due course, elaborate these claims in their origin in native use and occupancy of the land, principle of comprehensive claims; it negotiations with the government but, for my but today they involve much more than land. recognizes that any settlement of claims today own purposes, I have, in assessing these claims, When treaties were signed during the 19th must embrace the whole range of questions that relied upon the evidence of almost a thousand century, the settlement of the native people’s is outstanding between the Government of native persons who gave evidence in the claims was regarded primarily as surrender of Canada and the native peoples. Mackenzie Valley and the Western Arctic. their land so that settlement could proceed. The The settlement of native claims is not a mere Finally, I shall indicate what impact construction payment of money, the provision of goods and transaction. It would be wrong, therefore, to of the pipeline would have on the settlement of services, and the establishment of reserves – all think that signing a piece of paper would put the native claims and the goals that the native people of which accompanied such a surrender – were whole question behind us. One of the mistakes of seek through the settlement of these claims. conceived in part as compensation and in part as the past has been to see such settlements as final the means of change. The government’s solutions. The definition and redefinition of the expectation was that a backward people would, relationship with the native people and their History of Native Claims in the fullness of time, abandon their place in Confederation will go on for a semi-nomadic ways and, with the benefit of the generation or more. This is because the white man’s religion, education and agriculture, relationship has never been properly worked out. The Issue: No Pipeline take their place in the mainstream of the Now, for the first time, the federal government is Before Native Claims are Settled economic and political life of Canada. prepared to negotiate with the native people on a All the native organizations that appeared at the The governments of the day did not regard the comprehensive basis, and the native people of hearings insisted that this Inquiry should treaties as anything like a social contract in the North are prepared to articulate their interests recommend to the Minister of Indian Affairs which different ways of life were accommodated over a broad range of concerns. Their concerns and Northern Development that no right-of-way within mutually acceptable limits; they gave begin with the land, but are not limited to it: they be granted to build a pipeline until native claims little consideration to anything beyond the extend to renewable and non-renewable extinguishment of native claims to the land, once resources, education, health and social services, along the route, both in the Yukon and the and for all. The native people, by and large, public order and, overarching all of these Northwest Territories, have been settled. The understood the spirit of the treaties differently; considerations, the future shape and composition spokesmen for the native organizations and the they regarded the treaties as the means by which of political institutions in the North. people themselves insisted upon this point with they would be able to retain their own customs Perhaps a redefinition of the relationship virtual unanimity. and to govern themselves in the future. But they between the Government of Canada and the The claims of the Dene and the Inuit of the lacked the power to enforce their view. native people can be worked out in the North North derive from their rights as aboriginal The native peoples of the North now insist better than elsewhere: the native people are a peoples and from their use and occupation of that the settlement of native claims must be seen larger proportion of the population there northern lands since time immemorial. They as a fundamental re-ordering of their than anywhere else in Canada, and no want to live on their land, govern themselves relationship with the rest of us. Their claims provincial authority stands in the way of the on their land and determine for themselves 164 NORTHERN FRONTIER, NORTHERN HOMELAND - Mackenzie Valley Pipeline Inquiry - Vol. 1 what use is to be made of it. They are asking us claims have been settled. It was essential, covery of either by the other should give the to settle their land claims in quite a different therefore, if the Inquiry was to fulfil its discoverer rights in the country discovered mandate, to hear evidence on the native which annulled the existing rights of its ancient way from the way that government settled possessors. native land claims in the past; government’s organizations’ principal contention: that the past practice, they say, is inconsistent with its settlement of native claims ought to precede Did these adventurers, by sailing along the coast any grant of a right-of-way. and occasionally landing on it, acquire for the newly declared intention to achieve a several governments to whom they belonged, or comprehensive settlement of native claims. Only the Government of Canada and the by whom they were commissioned, a rightful Arctic Gas suggested that the native people native people can negotiate a settlement of property in the soil from the Atlantic to the should not be permitted to advance such an native claims in the North: only they can be Pacific; or rightful dominion over the numerous argument before the Inquiry because it did not parties to such negotiation, and nothing said in people who occupied it? Or has nature, or the fall within my terms of reference. The this report can bind either side. Evidence of great Creator of all things, conferred these rights Order-in-Council stated that I am “to inquire native claims was heard at the Inquiry to permit over hunters and fishermen, on agriculturists and manufacturers? into and report upon the terms and conditions me to consider fairly the native organizations’ that should be imposed in respect of any principal contention regarding the pipeline, and To avoid bloody conflicts, which might termi- nate disastrously to all, it was necessary for the right-of-way that might be granted across to consider the answer of the pipeline companies to that contention. nations of Europe to establish some principle Crown lands for the purposes of the proposed which all would acknowledge and which should Mackenzie Valley pipeline.” Those words, they decide their respective rights as between them- argued, limit the Inquiry to the consideration of Native Lands and Treaties selves. This principle, suggested by the actual only the terms and conditions that must be in North America state of things, was “that discovery gave title to performed or carried out by whichever pipeline When the first European settlers arrived in the government by whose subjects or by whose authority it was made, against all other European company is granted a right-of-way. North America, independent native societies, It is true that, according to the Pipeline governments, which title might be consummated diverse in culture and language, already by possession.” Guidelines, any terms and conditions that the occupied the continent. The European nations Minister decides to impose upon any This principle, acknowledged by all Europeans, asserted dominion over the New World by right because it was the interest of all to acknowledge right-of-way must be included in a signed of their “discovery.” But what of the native it, gave to the nation making the discovery, as its agreement to be made between the Crown and peoples who inhabited North America? By what inevitable consequence, the sole right of acquir- the pipeline company. But the Order-in-Council right did Europeans claim jurisdiction over ing the soil and of making settlements upon it. does not confine this Inquiry to a review of the them? Chief Justice John Marshall of the [Worcester v. Georgia (1832) 31 U.S. 350 at 369] Pipeline Guidelines nor to the measures that the Supreme Court of the United States, in a series The Europeans’ assumption of power over pipeline companies may be prepared to take to of judgments in the 1820s and 1830s, described the Indians was founded on a supposed moral meet them. The Order-in-Council calls upon the the Europeans’ claim in these words: and economic superiority of European culture Inquiry to consider the social, economic and America, separated from Europe by a wide ocean, and civilization over that of the native people. environmental impact of the construction of a was inhabited by a distinct people, divided into But it was, nevertheless, acknowledged that the separate nations, independent of each other and of pipeline in the North.

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