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Chapter 10

Aboriginal Rights

Key Points

n

The rules of the game have always been different for Aboriginal peoples in Canada.

n

Aboriginal peoples constituted self-governing communities in North America before the arrival of Europeans, and they entered into treaty arrangements with the Crown in many parts of Canada, although not everywhere (particularly British Columbia).

nnn

Treaty arrangements with Aboriginal peoples were frequently ignored, and at Confederation Aboriginal peoples were subjected to a form of internal colonialism. In light of important court decisions in the 1960s and 1970s, the governments of Canada recognized and affirmed Aboriginal rights in the Constitution Act 1982. But the governments of Canada have been reluctant to negotiate a comprehensive settlement with Aboriginal peoples, so it has fallen to the Supreme Court to define the scope and meaning of Aboriginal rights, including self-government.

nn

The constitutional promises of 1982 are still not fulfilled, but it is clear that Aboriginal peoples constitute unique citizens in Canada. While Aboriginal rights are now constitutionally protected, many Aboriginal communities are still mired in poverty.

For many Canadians, the Charter of Rights and Freedoms is the cornerstone of the Constitution Act 1982, but Part II of the new constitution is potentially even more significant. Here we find, in one very brief section, the recognition and affirmation of Aboriginal rights. Section 35 was an afterthought for Pierre Trudeau and the provincial premiers, and it reads more like a promissory note than a plan for a new order of government. Nonetheless, for Aboriginal Canadians Section 35 represents the end of the colonial relationship between the Canadian state and Aboriginal peoples, just as the act of patriation marked the end of Canada’s colonial relationship with Great Britain.
The significance of Section 35 cannot be overstated. It “renounces the old rules of the game,” and calls “for a just settlement with aboriginal peoples.”1 Thus, paradoxically, a process that was intended to address the constitutional concerns of Quebec left Quebec feeling deeply alienated but it marked a new beginning for Aboriginal peoples, who did not participate directly in the process.

treaty rights Particular and uniquely

Aboriginal rights stemming from the original treaties signed between Aboriginal peoples and the French and British Crowns.

Aboriginal rights Unique rights of

Aboriginal peoples that stem from the original occupation and use of the land by Aboriginal peoples.

The governments of Canada, however, have been reluctant to fulfill the promises of 1982.
In the absence of a political settlement, it has been left to the courts to interpret the scope and meaning of Section 35. While the Supreme Court has not been entirely consistent, it has defined the historical treaty rights of Aboriginal peoples, and it has also determined that Aboriginal

title An Aboriginal right to own land collectively as a result of the original occupation and use of the land by

rights, including title over land, exist independently of treaties. While many academics and Aboriginal peoples.

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Box 10.1

A Note on Terminology

Terminology is a very sensitive matter in the word “Indian,” even though the term is most discussions about race relations. With anthropologically incorrect and often respect to Aboriginal peoples in Canada, socially unacceptable; clearly, the original we need to distinguish between legal inhabitants of Canada have never had any terminology, anthropologically correct connection to India. “Indigenous” would terminology, political terminology, and be a better anthropological term to describe socially acceptable terminology. Under the the original inhabitants of Canada. First Constitution Act 1982, Aboriginal people in Nations are groups of legal or “status Canada are defined as “Indian, Inuit and Indians” living on a reserve or self-governing Métis.” For the most part, I will refer to community, but it is not a legal term. It is these legal terms in this chapter and the term adopted by Aboriginal peoples throughout the book. That means I will use themselves for political reasons.2

self-government The right of

most Aboriginal people believe that Section 35 entrenches a right to self-government, the top court has been reluctant to make a definitive judgment on self-government.

Aboriginal peoples to establish, design, and administer their own governments under the constitution of Canada.

The creation of an Aboriginal order of government is ultimately a political matter, but the governments of Canada have not pursued this issue with any urgency because they fear that it will be unpopular with non-Aboriginal Canadians, who constitute the democratic majority. However, it is important to recognize that the quest for Aboriginal self-government—unlike the movement for sovereignty in Quebec—is not about separating from Canada; it is about joining Canada as a partner in the federation. However, the idea of separate rights for Aboriginal peoples makes many people uncomfortable because it challenges the traditional definition of Canadian citizenship. Nevertheless, the governments of Canada now have a constitutional obligation to negotiate a just settlement with Aboriginal peoples, including self-government. The governments of Canada also have a moral obligation to alleviate the terrible poverty that remains endemic in many Aboriginal communities.

Aboriginal Peoples and the Crown

Aboriginal rights were not part of Pierre Trudeau’s plan to secure constitutional peace, and none of the provincial governments had any interest in Aboriginal rights either. In order to understand how and why Aboriginal rights came to be included in the new constitution, we need to examine the historical relationship between Aboriginal peoples and the Crown. While this was a relationship of equals at the point of contact 500 years ago, it evolved over time into a relationship between colonial ruler and subject. After Confederation in 1867, the federal government embarked on a long and concerted effort to assimilate Aboriginal peoples and extinguish their traditional way of life. While the federal government believed it was offering Aboriginal peoples a better life, its policies were based on the deeply racist assumption that the Aboriginal way of life was not worthy. While the Constitution Act 1982 re-established Aboriginal peoples as partners in the federation, we are still in the process of undoing the damage inflicted by centuries of colonial domination over Aboriginal peoples.
The relationship between Aboriginal peoples and the Crown (first the French and later the British Crown) can be broken down into four stages: pre-contact, contact, colonial domination, and renewal (with the Canadian Crown), although it is not easy to mark each stage with precision.3 There is considerable overlap between the stages, and

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the relationship started at different times across the country. Aboriginal groups in Eastern Canada experienced contact with European settlers earlier than groups in the West and North. While we are primarily concerned with the history of colonial domination and the current politics of renewal, the pre-contact and contact periods have assumed new legal and political relevance in the modern era. The politics of renewal commenced in 1982 with the new constitution.

Pre-Contact Era

Aboriginal peoples in Canada first made contact with Europeans when Viking explorers arrived on the shores of Newfoundland and Labrador around 1000 years ago, but these meetings were fleeting. Prior to the year 1500, Aboriginal and non-Aboriginal peoples largely inhabited separate worlds. Aboriginal peoples lived in communities all across the upper half of Turtle Island, as many Aboriginal people call North America. The first nonAboriginal settlers in North America came from Europe. In their separate worlds, Aboriginal and European peoples developed very different political institutions as well as different belief systems and ways of life. While the pre-contact era was more than 500 years ago, it is not simply a matter of historical interest. Since 1982, the Supreme Court of Canada has tied contemporary Aboriginal rights to activities practised by Aboriginal peoples prior to contact with European settlers. The history of the pre-contact era is thus of considerable importance to both Aboriginal and non-Aboriginal peoples, as will be elaborated on below.

Contact and Cooperation

European settlers made contact with Aboriginal peoples in Eastern and Central Canada some 500 years ago, and European settlers slowly began to make their way across the continent, finally arriving on the Pacific coast about 200 years ago. Over this time, the relationship between Aboriginal and non-Aboriginal peoples changed dramatically. Initially, European explorers were dependent on the support of Aboriginal people. Europeans were unfamiliar with North America, and they relied on Aboriginal knowledge of the land and climate to survive. In exchange, Aboriginal peoples received European goods and technology. Later, the commercial links between Aboriginal and non-Aboriginal peoples deepened and political and military alliances were formed.

Royal Proclamation Over time, Aboriginal peoples were drawn into expressly European conflicts. In the middle of the eighteenth century, Great Britain and France were engaged in a battle for global supremacy. After seven years of war, the British emerged victorious. In North America, the decisive battle was waged on the Plains of Abraham in Quebec City in 1759. Four years later, King George III issued a Royal Proclamation, in which he revealed how he intended to govern his newly acquired territory. George made it clear that he expected his French subjects to assimilate into the English way of life, as discussed in Chapter 8. But he adopted a very different tone with respect to Aboriginal peoples. The British government recognized that it needed the support of Aboriginal people to secure its new territory. With the Royal Proclamation, George sought to reassure Aboriginal peoples about his government’s good intentions. He thus proclaimed that all lands not ceded or sold by the Indian “nations or tribes” with whom the British were connected were “reserved to them” (see Box 10.2).

Treaties It is important to stress that France and later Britain did not conquer Aboriginal peoples in North America: they entered into cooperative relationships with Aboriginal nations, and these relationships were enshrined in treaties. The earliest treaties were signed between the French and British Crowns and First Nations along the St. Lawrence River and the Maritime colonies, respectively. These treaties were typically brief statements of friendship and cooperation. In the early nineteenth century, more elaborate treaties were signed with

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Box 10.2

The Royal Proclamation

  • King George III
  • Queen Elizabeth II (the great, great, great

granddaughter of George III)

And whereas it is just and reasonable, and either wilfully or inadvertently seated essential to our Interest, and the Security of themselves upon any Lands within the our Colonies, that the several Nations or Countries above described or upon any Tribes of Indians with whom We are con- other Lands which, not having been nected, and who live under our Protection, ceded to or purchased by Us, are still should not be molested or disturbed in the reserved to the said Indians as aforesaid, Possession of such Parts of Our Dominions forthwith to remove themselves from and Territories as, not having been ceded to such Settlements . . . or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds . . .
Given at our Court at St. James’s the
7th Day of October 1763, in the Third Year
And. We do further strictly enjoin and of our Reign.

  • require all Persons whatever who have
  • King George III

First Nations in southern Ontario; treaties were also signed with First Nations on Vancouver Island at this time. After Confederation, a series of treaties—numbered 1 through 11—were signed with First Nations in northern Ontario, across the prairies, and most of the Northwest Territories. Treaty Number 8 also spills into northeastern British Columbia. The rest of British Columbia, apart from Vancouver Island, was not subject to any treaties. Most of British Columbia thus remains reserved for First Nations under the terms of the Royal Proclamation.
There may not have been much intention on the part of the Crown to honour the treaties it signed. For the Crown, treaties simply provided a legal veneer for the appropriation of Aboriginal land. Certainly, many Canadians today regard treaties as an historical anachronism with no contemporary relevance. But for many Aboriginal people the historical treaties are virtually sacred documents and must be honoured. The Canadian courts have determined that the historical treaties are in fact still legally valid. The governments of Canada subsequently recognized and affirmed the treaty rights of Aboriginal peoples in the Constitution Act 1982.

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Colonial Domination

Cooperation with First Nations declined steadily through the nineteenth century as the European population expanded in Canada, but the era of colonial domination paradoxically commenced with Confederation in 1867. In other words, just as Canada gained a measure of independence from Great Britain, Canada embarked on long-term policy of internal internal colonialism The political

and economic subjugation of a particular group of people within a country by the government of that

colonialism. By this time, Aboriginal peoples were viewed as primitive savages, and the explicit policy objective of the Canadian state was to gradually prepare Aboriginal peoples for life in “civilized” society.

country.

While most policies relied on Aboriginal peoples to volunteer for assimilation, the government frequently took it upon itself to determine what was in the best interests of Aboriginal people. Many Aboriginal children were taken from their families and forced into residential schools far from home, where they were often abused and thousands died (mostly residential schools Schools that

were established by the Government of Canada in conjunction with the Catholic and Anglican churches to

from tuberculosis and other diseases). The Government of Canada started to phase out residential schools in the 1960s, but the last schools were not closed until the late 1990s. More than 150 000 Aboriginal children were forced to attend residential schools. The residential school policy has been described as an act of “cultural genocide.”4 Many residential school survivors were scarred for life, and their children have suffered too. In other cases, entire communities were forcibly relocated by the government, especially in the far north.
Under Section 91(24) of the Constitution Act 1867, the Parliament of Canada assumed responsibility for “Indians, and Land Reserved for Indians.” In 1876, the Parliament of Canada enacted the Indian Act, which represented a consolidation of pre-Confederation Indian law. The original objective of the Indian Act was very clear: Aboriginal peoples should live under the control of the federal government on isolated reserves or they should abandon their traditional way of life and assimilate into the Canadian mainstream. The Indian Act effectively infantilized Aboriginal peoples and made them wards of the state.
The Indian Act continues to regulate just about every aspect of life for Aboriginal peoples, including the basic question of who is and is not “Indian.” The Department of

forcibly educate Aboriginal children and assimilate them into mainstream Canadian society. The schools operated for more than a century, and the last residential school was closed in the 1990s. More than 150 000 Aboriginal children attended residential schools, where they were frequently physically and psychologically abused.

Indian Act Federal legislation that

defines the legal status of Indian peoples in Canada and regulates the management of Indian lands and reserves.

Aboriginal Affairs and Northern Development still issues status cards for people who meet status cards Cards issued by

Aboriginal Affairs and Northern Development Canada to Aboriginal peoples registered under the Indian Act.

the legal definition of “Indian.” Indian status has always been a legal construct rather than an anthropological or racial construct. Historically, for example, Aboriginal women who married non-Aboriginal men lost their Indian status, but non-Aboriginal women who married Aboriginal men would gain Aboriginal status. These overtly sexist provisions of the Indian Act were eliminated in the 1980s, but the concept of a Status Indian remains prob- Status Indian An Aboriginal person

who is registered under the Indian Act and consequently is entitled to certain legal rights.

lematic (Status Indians are also referred to as registered or legal Indians). There are an estimated 700 000 registered Indians in Canada, and another 500 000 people identify themselves as Aboriginal in the census. Aboriginal peoples thus make up 3 to 4 percent of the Canadian population.
The Indian Act also provides the governance framework for Aboriginal peoples in
Canada, but again it is a legal construct. Aboriginal governance in Canada today only loosely corresponds with traditional Aboriginal government. Under the Indian Act, Status

band A group of Status Indians under the Indian Act. Many bands now prefer to be known as First Nations.

Indians belong to a band and live on a reserve. There are 614 bands in Canada and just over 2700 reserves. “In Eastern Canada each band is generally limited to one reserve, while in the West one band may encompass several reserves. British Columbia has over 1600 reserves but fewer than 200 bands.”5 Geographically, at 900 square kilometres the Blood Reserve in Alberta is the largest in the country; many reserves in British Columbia are just a few hectares. With over 8000 people, the Six Nations band near Brantford, Ontario, is the largest reserve in the country demographically. The average band has about 500 members.

reserve An area of land owned by the Crown but reserved for the use of an Indian band. Some bands have more than one reserve.

Under the terms of the Indian Act, each band has a band council, with a chief elected band council The governing body of

an Indian band under the Indian Act.

by the members of the band. Band members also vote for councillors. The chief and the councillors serve two-year terms. Band councils are responsible for the public health of the community, law and order in the community, housing, and water, among other things.

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Many Aboriginal people today reject the band council system because it represents a colonially imposed system of governance.
As wards of the state, Aboriginal people were not permitted to vote in federal or provincial elections unless they relinquished their Indian status. This explicit policy of assimilation dates from before Confederation, with the passage of the Gradual Civilization Act of 1857. Under this act, “Indian men could seek enfranchisement. They had to be over 21, able to read and write either English or French, be reasonably well educated, free of debt, and of good moral character as determined by a commission of non-Indian examiners.”6 After Confederation, these terms were carried over to the Indian Act. However, only a few hundred Aboriginal people volunteered for enfranchisement—Aboriginal people were simply not willing to sacrifice their heritage to vote in Canadian elections. The Government of Canada exploited this resistance by threatening Aboriginal activists with involuntary enfranchisement. If someone was involuntarily enfranchised, he or she would be instantly ostracized in the community. It proved to be an effective way to thwart political activism in Aboriginal communities.

involuntary enfranchisement

The forcible enfranchisement of Indian individuals against their will, meaning that they lost their status as an Indian. Those who were involuntarily enfranchised were essentially divorced from their community. The Government of Canada used the threat of

The Great Wars and the Origins of Aboriginal Activism When Great

Britain declared war against Germany in August 1914, many Aboriginal peoples rushed to join the war effort, while French Canadians were mostly ambivalent about the war. While English Canadians may have been motivated by a desire to defend the “Mother Country,” many Aboriginal peoples enlisted specifically to defend the Crown. More than 3500 Aboriginal peoples enlisted in World War I, and more than 300 were killed.7 Aboriginal soldiers fought alongside non-Aboriginal soldiers in the Canadian Forces, and for the first time many Aboriginal people felt accepted as Canadian citizens. But after the war, when Aboriginal veterans returned home, it became “clear that the semblance of full citizenship had been only temporary.”8

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