M10_TELF6850_01_SE_C10.indd Page 185 22/04/14 7:24 PM user /206/PHC00138/9780132546850_PHC00138/PHC00138_AN_INTRODUCTION_TO_CANADIAN_POLITIC ... 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). n Treaty arrangements with Aboriginal peoples were frequently ignored, and at Confederation Aboriginal peoples were subjected to a form of internal colonialism. n 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. n 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. n The constitutional promises of 1982 are still not fulfilled, but it is clear that Aboriginal peoples constitute unique citizens in Canada. n 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 signifi- cant. 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. treaty rights Particular and uniquely The significance of Section 35 cannot be overstated. It “renounces the old rules of the Aboriginal rights stemming from the game,” and calls “for a just settlement with aboriginal peoples.”1 Thus, paradoxically, a original treaties signed between process that was intended to address the constitutional concerns of Quebec left Quebec Aboriginal peoples and the French and British Crowns. feeling deeply alienated but it marked a new beginning for Aboriginal peoples, who did not Aboriginal rights Unique rights of participate directly in the process. Aboriginal peoples that stem from the The governments of Canada, however, have been reluctant to fulfill the promises of 1982. original occupation and use of the land In the absence of a political settlement, it has been left to the courts to interpret the scope and by Aboriginal peoples. meaning of Section 35. While the Supreme Court has not been entirely consistent, it has defined title An Aboriginal right to own land collectively as a result of the original the historical treaty rights of Aboriginal peoples, and it has also determined that Aboriginal occupation and use of the land by rights, including title over land, exist independently of treaties. While many academics and Aboriginal peoples. 185 M10_TELF6850_01_SE_C10.indd Page 186 22/04/14 7:24 PM user /206/PHC00138/9780132546850_PHC00138/PHC00138_AN_INTRODUCTION_TO_CANADIAN_POLITIC ... 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 Aboriginal peoples to establish, design, court has been reluctant to make a definitive judgment on self-government. 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 set- tlement 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 186 P a r t III Politics and the New Constitution M10_TELF6850_01_SE_C10.indd Page 187 22/04/14 7:24 PM user /206/PHC00138/9780132546850_PHC00138/PHC00138_AN_INTRODUCTION_TO_CANADIAN_POLITIC ... 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 domina- tion 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 non- Aboriginal 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