Policy Experiments

Since the early twentieth century, many Aboriginal communities in Nova Scotia, New Brunswick, and Prince Edward Island had been struggling with desperate poverty. A smallpox epidemic in the 1890s and a major migration to the United States had reduced the population dramatically, while high infant mortality rates, malnutrition, and widespread tuberculosis severely challenged those who remained.

Photo of Native family housing, New Brunswick, ca. 1890s

Native Family Home, New Brunswick, ca. 1890s

PANB (P5-535)
Photo of Native children from St. Mary's reserve, New Brunswick, ca. 1890

Indian Children, St. Mary's Reserve, ca. 1890

The photos was taken near the eastern end of Fredericton bridge, ca. 1890
PANB (P5-81)
The old hunting economy had collapsed, and most settlements did not have sufficient productive land to develop a new agricultural economic base. Indeed, several reserves had been surrendered to the Crown, so the already small land base was shrinking. And clearly, the Great Depression was compounding the situation.

In the mid-1930s officials began to discuss the idea of relocating Mi’kmaq and Maliseet communities to central locations. The idea was promoted as a means to acquire more and better lands to revitalize the economy, but it was also clearly designed for administrative convenience and to reduce costs.

ALTEXT

Inuit Girls and Woman Doing Laundry, Nain, NF, ca. 1946

After 1945, the federal government relocated some Innu from communities in northern Labrador to Nain on the Labrador coast.
NAC (PA-178249).
There was no consultation with the Aboriginal people affected. The centralization policy was officially recognized in 1942. In Nova Scotia, as an example, plans were made to expropriate existing reserves and move all the people to two agencies at Eskasoni and Shubenacadie.

The program was widely resisted. Ben Christmas, President of the United General Indian Council of Nova Scotia, took a particularly important lead in organizing the opposition. Far fewer families than the government had hoped agreed to move to the designated reserves, and those who had moved found themselves with the same problems as before. By 1949, the government had essentially abandoned the experiment. But the centralization policy left a lasting legacy of bitterness among the Aboriginal people of the Maritimes, some of whom have come to see it as an attempt at "cultural genocide."

1949 - Newfoundland Enters Confederation

When Newfoundland entered Confederation in 1949, the federal government, in accordance with its practice elsewhere, accepted responsibility for the Native peoples in the new province. However, no attempts were made to register individuals or bands, and no reserves were established initially. Only in 1984 were the members of the Miawpukek Band of Conne River recognized as Status Indians, the first in the province. The Terms of Union, through which Newfoundland became a province, made no reference to Aboriginal peoples.

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Meanwhile, important changes were taking place in Newfoundland. Before Newfoundland joined Confederation in 1949, Indian affairs had been administered in different ways in different parts of the colony. Some agreements had been signed with the Mi’kmaq on the island of Newfoundland, and land set aside for their hunting purposes. In Labrador, because of an ongoing dispute about the border with Canada, the Innu’s legal status was unclear. Further north, the Inuit had been considered the responsibility of the Moravian missionaries, who had been granted lands for settlement purposes beginning in 1769.

The 1949 terms of union that brought Newfoundland into Canada stated that the lands that had been reserved for Indians would be transferred to federal government jurisdiction to be consistent with the British North America Act. The discussions preceeding the union established that Indians and Inuit would be brought into programs administered by the Department of Indian Affairs like Aboriginal people elsewhere in Canada. However, no action was taken for some time. Status Indians were not registered or added to the official band lists, and no federal programs were initiated until 1954, when the department began to provide funds to the Newfoundland government as reimbursement for Native health care costs.

The most dramatic effect of Indian policy on the people of Newfoundland instead came through a provincial initiative. In the1950s, a number of Inuit from northern Labrador were moved to the communities of Nain and Makkovik. Then, in the 1960s, the provincial government resettled Innu families from their lands to the communities of North West River (now called Shesatshit) and Davis Inlet. Problems associated with this relocation program would come to have a devastating impact on the Innu in the 1980s.

While these administrative changes were taking place, the old Canadian policy of assimilation through education was also being scrutinized. Continuing complaints that the residential school system was failing to draw Aboriginal children into full Canadian citizenship were coupled with equally old complaints that the system was too expensive, too dominated by religious interests, and generally offered inferior education. By 1945, the government had decided on a new policy. Native children would be integrated wherever possible into the provincial school system. The fundamental goal was still assimilation; the theory was now that this process would proceed more efficiently through integration rather than segregation. By 1960, about 10,000 Aboriginal children were attending provincial schools.

Residential schools were not entirely eliminated, however. In the Northwest Territories and Yukon, for example, there were very few non-Native schools to which Aboriginal children could be sent, so residential schools continued to operate. Nor were the churches entirely removed from their participation in the system. Religious groups continued to operate student residences (called hostels) for students attending school away from home.

Photo shows a school drill at the Indian Industrial School, Brandon, Man., 1946

School Drill, Indian Industrial School, Brandon, Man., 1946

Native children participate in a school drill at the Indian Industrial School, Brandon, Man., 1946. Residential schools continued to operate in Canada well after the Second World War, with the last ones closing in 1996.
NAC (PA-048570)

Meanwhile, changes were taking place in Canadian society and new ideas about public policy were being debated from coast to coast. The government of William Lyon Mackenzie King decided to make major revisions to The Indian Act, and in 1946 a joint committee of the Senate and House of Commons was established to begin the process. Initially, the committee does not appear to have planned to consult Aboriginal organizations, but it soon changed its mind and, for the first time since Confederation, Native interests were represented at the table.

Photo of David Crowchild and Teddy Yellowfly heading to Ottawa to participate in Joint Committee on Indian Affairs hearings

David Crowchild and Teddy Yellowfly

David Crowchild and Teddy Yellowfly, delegates en route to Ottawa for Joint Committee on Indian Affairs hearings, 1947. Photo taken at White River railway station.
GA (NA-4212-42)

Indian Act, 1951

Despite calls for change from Native organizations, the 1951 Indian Act did not substantially revise the inveterate assimilationist bent of Indian legislation. The Act did, however, lift bans on the Sun Dance and Potlatch and eliminated the involuntary enfranchisement clause (loss of Treaty status without consent).

1 5  G E O R G E  V I .

CHAP. 29

An Act respecting Indians.

[Assented to 20th June, 1951.]

HIS Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE.

1. This Act may be cited as The Indian Act. [131]

...

ENFRANCHISEMENT

108. (1) On the report of the Minister that an Indian has applied for enfranchisement and that in his opinion the Indian

(a) is of the full age of twenty-one years,

(b) is capable of assuming the duties and responsibilities of citizenship, and

(c) when enfranchised, will be capable of supporting himself and his dependants, the Governor in Council may by order declare that the Indian and his wife and minor unmarried children are enfranchised.

(2) On the report of the Minister that an Indian woman married a person who is not an Indian, the Governor in Council may by order declare that the woman is enfranchised as of the date of her marriage.

(3) Where, in the opinion of the Minister, the wife of an Indian is living apart from her husband, the names of his wife and his minor children who are living with the wife shall not be included in an order under subsection one that enfranchises the Indian unless the wife has applied for enfranchisement, but where the Governor in Council is satisfied that such wife is no longer living apart from her husband, the Governor in Council may by order declare that the wife and the minor children are enfranchised.

(4) A person is not enfranchised unless his name appears in an order of enfranchisement made by the Governor in Council.


109. A person with respect to whom an order for enfranchisement is made under section one hundred and eight shall, from the date thereof, be deemed not to be an Indian within the meaning of this Act or any other statue or law.


111.(1) Where the Minister reports that a band has applied for enfranchisement, and has submitted a plan for the disposal or division of the funds of the band and the lands in the reserve, and in his opinion the band is capable of managing its own affairs as a municipality or part of a municipality, the Governor in Council may by order approve the plan, declare that all the members of the band are enfranchised, either as of the date of the order or such later date as may be fixed in the order, and may make regulations for carrying the plan and the provisions of this section into effect.

(2) An order for enfranchisement may not be made under subsection one unless more than fifty per cent of the electors of the band signify, at the meeting of the band called for the purpose, their willingness to become enfranchised under this section, and their approval of the plan.

(3) The Governor in Council may, for the purpose of giving effect to this section, authorize the Minister to enter into an agreement with a province or a municipality, or both, upon such terms as may be agreed upon by the Minister and the province or municipality, or both.

(4) Without res tricting the generality of subsection three, an agreement made thereunder may provide for financial assistance to be given to the province or the municipality or both to assist in the support of indigent, infirm or aged persons to whom the agreement applies, and such financial assistance, or any part thereof, shall, if the Minister so directs, be paid out of moneys of the band, and any such financial assistance not paid out of moneys of the band shall be paid out of moneys appropriated by Parliament.

The Indian Act, Statutes of Canada 1951, c. 29.

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1951 - Revised Indian Act

The revisions to the Indian Act passed in 1951 encompassed something of a revolution in the treatment of Natives by the Canadian government. Full privileges of citizenship, including voting rights under qualification, were conferred upon the Native population. Band councils acquired considerable authority over reserve lands, including the administration of funds and local by-laws. The election of band councils was to be by secret ballot, with Native women participating for the first time since the imposition of the original Indian Act. Restrictions upon political organizations and Native religious and cultural life, such as community dances and Potlatch ceremonies, were lifted. Although the Indian Act remained imperfect, and the supervisory role of the minister remained in effect with minor curtailments, Native bands now had the power to seek the funds and legal expertise necessary to pursue claims through the courts and to press for further reforms in the provincial and federal legislatures.

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The process was a lengthy one, and a new draft bill was not ready until 1950, when it was introduced to the House of Commons by Louis St. Laurent’s government. An immediate outcry from Native organizations followed; many objected strongly to the continuing assimilationist intent of the bill, including involuntary enfranchisement. The bill was withdrawn, redrafted, and resubmitted; it was finally passed by Parliament in 1951.

Even the new law, however, did not reflect truly fundamental change. Regulations against the performance of the Sun Dance and potlatch were omitted, as was the involuntary enfranchisement clause. It was no longer illegal for Aboriginal organizations to raise funds or hire lawyers for their causes. The responsible minister now had slightly less power and band councils had slightly more. But overall, the document was still firmly rooted in the 1876 Act that was designed to protect Aboriginal peoples until they integrated into Canadian society without special status.

1960 - Voting Rights for Indians

The Native experience with voting rights in Canada presents a complex and frequently changing picture. In 1885, the right to vote in federal elections was extended to Natives in Eastern Canada who met the requirements of being male and owning at least $50 of real property, a qualification that could be met by reserve lands held individually by a location ticket. This practice did not apply to the Natives in Western Canada, who, officials believed, were not developed enough for the responsibility. The 1885 legislation was repealed in 1898, depriving the Natives of Eastern Canada of the franchise once more. The right to vote in a federal election was restored to these people in 1920, but it was restricted to those Natives who lived off-reserve and to men who had served in the Canadian army, navy, or air force in the First World War. In 1944, the federal franchise was extended to all Natives who had served or were serving in the Second World War and also to their spouses. A 1950 amendment to the Indian Act gave the vote to on-reserve Natives but required them to relinquish their tax-exempt status on personal property. Only in 1960, under the government of John Diefenbaker, was the federal franchise extended unconditionally to all Natives. Provincial voting rights came even more slowly.

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Key to that program was the concept of enfranchisement. Involuntary enfranchisement had been eliminated, but if Status Indians wanted to vote, they would have to give up their legal status as Indians. Clearly, however, public opinion was changing. In 1958, John Diefenbaker proposed that Natives should be permitted to vote in federal elections without giving up their special status. And, in 1960, that proposal finally became law.

The relationship of The Indian Act to the Inuit (Eskimo) was finally clarified in the 1951 revisions. A section in the definitions at the beginning of the Act asserted that any reference to "an Indian" in the Act did not include any "Eskimos." An Order-in-Council of the previous year gave authority for Inuit affairs instead to the Department of Resources and Development, which was responsible for northern affairs more generally. There was to be no " Eskimo Act" or Inuit policy like the federal Indian policy.

Photo shows and Inuit woman receiving Family allowance in the form of powdered milk in Cape Smith, N.W.T., 1948

Receiving Family Allowance Cape Smith, N.W.T., 1948

Mr. and Mrs. Sigvaldasson issuing Family Allowance in the form of powdered milk. Cape Smith, N.W.T.. 1948.
NAC (PA-167630)

Although the general public was enthusiastic about what it saw as progress in Indian policy through the 1950s and early 1960s, it was also becoming aware that profound socio-economic problems were affecting many Aboriginal communities and that recent policy changes would do nothing to address those problems. Between 1963 and 1966, a group of social scientists was commissioned by the government to study the situation. Their report, issued in 1966, was entitled “A Survey of the Contemporary Indians of Canada”; it became known popularly as the Hawthorn Report, after its principal author. The report chronicled dismal statistics about poverty, unemployment, alcoholism, low educational attainment, and the marginalization of Aboriginal peoples from Canadian society as a whole.



Hawthorn Report, 1966

The report established that the government was not only to give Native people full rights as Canadian citizens but also to accord them special status in law. Natives were to be considered "citizens plus" because they were the founding peoples of Canada.

...

7.Recommendations

General

(1)Integration or assimilation are not objectives which anyone else can properly hold for the Indian. The effort of the Indian Affairs Branch should be concentrated on a series of specific middle range objectives, such as increasing the educational attainments of the Indian people, increasing their real income, and adding to their life expectancy.

(2)The economic development of Indians should be based on a comprehensive program on many fronts besides the purely economic.

(3)The main emphasis on economic development should be on education, vocational training and techniques of mobility to enable Indians to take employment in wage and salaried jobs. Development of locally available resources should be viewed as playing a secondary role for those who do not choose to seek outside employment.

(4)Special facilities will be needed to ease the process of social adjustment as the tempo of off-reserve movement increases. Where possible these should be provided by agencies other than the Indian Affairs Branch. However, if other agencies prove inadequate, either due to incapacity or unwillingness, the Indian affairs Branch must step in itself regardless of whether the situations requiring special attention are on or off the reserve.

(5)As long as Indians are deficient in the capacity for self-defence in a society of large and powerful private and public organizations they must be given supplemental consideration by government.

(6) The Indian Affairs Branch should act as a national conscience to see that social and economic equality is achieved between Indians and Whites. This role includes the persistent advocacy of Indian needs, the persistent exposure of the shortcomings in the governmental treatment that Indians receive, and persistent removal of ethnic tension between Indians and Whites.

(7) Indians should be regarded as ‘citizens plus’; in addition to the normal rights and duties of citizenship, Indians possess certain additional rights as charter members of the Canadian community.

(8)The Indian Affairs Branch has special responsibility to see that the ‘plus’ aspects of Indian citizenship are respected, and that governments and the Canadian people are educated in the acceptance of their existence. [13]

Economic Development

(11)Larger expenditures than hitherto will have to be made on reserves in order to bring their standards of housing and other facilities and services closer to White norms.

(12)A working blueprint for a viable economic development program for Indians will require a more detailed cross-country survey to provide an inventory in terms of job aptitudes and capabilities, potential income-yielding resources, job opportunities locally available, and numbers in each community requiring special training and migration to other areas… 

(13)An adequate program for economic development of Indians will require public expenditures on their behalf in the hundreds of millions of dollars per annum over the foreseeable future…

(14)The Indian Affairs Branch should be given every support in its announced objective of providing Indians with maximum educational and training opportunities and services. Inseparable from education and training, job placement should play a major role in a viable economic development program for Indians. [14]

(27)The main emphasis for economic development of the more depressed and underdeveloped reserves located within, or close to, urban or industrial centres offering many potential job opportunities should focus on expanded social work programs for rehabilitation of disorganized house-holds, intensive training programs for potential workers, and counselling work among women and mothers to assist them in complexities of urban living. [15]

H.B. Hawthorn, ed., A Survey of the Contemporary Indians of Canada: A Report on Economic, Political, Educational Needs and Policies, vol. 1 (Ottawa: Indian Affairs Branch, 1966), 13.

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1966 - Hawthorn Report

Canadian awareness of the plight of Native peoples was not widespread before a public investigation was undertaken into the lives of the nation's Aboriginals. In 1963, anthropologist Harry B. Hawthorn was appointed to head the commission, which tabled its report three years later. The results of Hawthorn's comprehensive examination of the economic and social conditions under which Natives lived revealed some shocking statistics. For example, he noted that Native communities experienced high school dropout rates as high as 94 per cent. Among the recommendations that Hawthorn made to address this specific problem was that Aboriginal peoples be taught in their own languages. The most significant point that Hawthorn made, however, focused on the empowerment of local band government. In most regions, the Indian Department still held veto power over band council decisions, and many bands did not control a significant proportion of the revenues generated from the lease of reserve property and resources. This lack of autonomy led many Native people to withdraw from the official structures dictated by Ottawa and to emphasize more personal kinship and friendship ties within the community. The consequence was the frequent absence of effective local government on reserves. Native groups across Canada applauded the findings of the Hawthorn Report and its recommendations that the Indian Act be changed to encourage more autonomous local government. The report also focused public attention on the unacceptable social conditions in which many Natives lived and, in so doing, forced Canadians to address a situation out of keeping with how they generally viewed themselves and their country. The Hawthorn Report introduced a new description of Aboriginal rights in Canada, arguing that Indians deserved better treatment from their government than did most Canadians since their Aboriginal title and treaty rights made them "citizens plus."

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The Hawthorn report proposed that not only should Canada’s Native peoples enjoy full rights as citizens, but they should also be regarded as citizens with special rights because they were here before European settlers. The idea of "citizens plus" was received with mixed feelings. Many Canadians argued that aboriginality did not confer special status, while some Native groups (notably the Six Nations of southern Ontario and Quebec) had long argued that they had never been Canadian citizens in the first place. They were members of an independent nation and would never concede sovereignty. Other Native groups were ambivalent about some of the report’s proposals to bring Native communities into the mainstream of Canadian life because these proposals sounded suspiciously like the old assimilation policy dressed up in the guise of a new social concern.

Trudeau’s White Paper

In 1966, the Liberal government seemed to signal a new importance for Aboriginal issues by creating the Department of Indian Affairs and Northern Development. Soon afterward, however, a highly controversial policy proposal sparked a burst of outrage among Aboriginal political leaders.

Government White Paper on Native Policy, 1969

Pierre Trudeau's government proposed the abolition of the Indian Act and the transfer of responsibility for Native programs to the provinces. Natives were concerned that this fundamental change to Indian policy would undermine treaty agreements and deny existing Native rights.

In the past ten years or so, there have been important improvements in education, health, housing, welfare and community development.  Developments in leadership among the Indian communities have become increasingly evident.  Indian people have begun to forge a new unity.  The Government believes progress can come from these developments but only if they are met by new responses.  The proposed policy is a new response.

The policy rests upon the fundamental right of Indian people to full and equal participation in the cultural, social, economic and political life of Canada.

To argue against this right is to argue for discrimination, isolation and separation.  No Canadian should be excluded from participation in community life, and none should expect to withdraw and still enjoy the benefits that flow to those who participate.

1  The Legal Structure

Legislative and constitutional bases of discrimination must be removed.

Canada cannot seek the just society and keep discriminatory legislation on its statute books.  The Government believes this to be self-evident.  The ultimate aim of removing the specific references to Indians from the constitution may take some time, but it is a goal to be kept constantly in view.  In the meantime, barriers created by special legislation can generally be struck down.

Under the authority of Head 24, Section 91 of the British North America Act, the Parliament of Canada has enacted the Indian Act.  Various federal-provincial agreements and some other statutes also affect Indian policies.

In the long term, removal of the reference in the constitution would be necessary to end the legal distinction between Indians and other Canadians.  In the short term, repeal of the Indian Act and enactment of transitional legislation to ensure the orderly management of Indian land would do much to mitigate the problem.

The ultimate goal could not be achieved quickly, for it requires a change in the economic circumstances of the Indian people and much preliminary adjustment with provincial authorities.  Until the Indian people are satisfied that their land holdings are solely within their control, there may have to be some special legislation for Indian lands.

2  The Indian Cultural Heritage

There must be positive recognition by everyone of the unique contribution of Indian culture to Canadian society.

It is important that Canadians recognize and give credit to the Indian contribution.  It manifests itself in many ways; yet it goes largely unrecognized and unacknowledged.  Without recognition by others it is not easy to be proud.

All of us seek a basis for pride in our own lives, in those of our families and of our ancestors.  Man needs such pride to sustain him in the inevitable hour of discouragement, in the moment when he faces obstacles, whenever life seems turned against him.  Everyone has such moments.  We manifest our pride in many ways, but always it supports and sustains us.  The legitimate pride of the Indian people has been crushed too many times by too many of their fellow Canadians.

The principle of equality and all that goes with it demands that all of us recognize each other's cultural heritage as a source of personal strength.

Canada has changed greatly since the first Indian Act was passed.  Today it is made up of many people with many cultures.  Each has its own manner of relating to the other; each makes its own adjustments to the larger society ...

3  Programs and Services

Services must come through the same channels and from the same government agencies for all Canadians.

This is an undeniable part of equality.  It has been shown many times that separation of people follows from separate services.  There can be no argument about the principle of common services.  It is right.

It cannot be accepted now that Indians should be constitutionally excluded from the right to be treated within their province as full and equal citizens, with all the responsibilities and all the privileges that this might entail.  It is in the provincial sphere where social remedies are structured and applied, and the Indian people, by and large, have been non-participating members of provincial society.

Canadians receive a wide range of services through provincial and local governments, but the Indian people and their communities are mostly outside that framework.  It is no longer acceptable that the Indian people should be outside and apart.  The Government believes that services should be available on an equitable basis, except for temporary differentiation based on need.  Services ought not to flow from separate agencies established to serve particular groups, especially not to groups that are identified ethnically.

Separate but equal services do not provide truly equal treatment.  Treatment has not been equal in the case of Indians and their communities.  Many services require a wide range of facilities which cannot be duplicated by separate agencies.  Others must be integral to the complex systems of community and regional life and cannot be matched on a small scale.

The Government is therefore convinced that the traditional method of providing separate services to Indians must be ended.  All Indians should have access to all programs and services of all levels of government equally with other Canadians.

The Government proposes to negotiate with the provinces and conclude agreements under which Indian people would participate in and be served by the full programs of the provincial and local systems.  Equitable financial arrangements would be sought to ensure that services could be provided in full measure commensurate with the needs.  The negotiations must seek agreements to end discrimination while ensuring that no harm is inadvertently done to Indian interests.  The Government further proposes that federal disbursements for Indian programs in each province be transferred to that province.  Subject to negotiations with the provinces, such provisions would as a matter of principle eventually decline, the provinces ultimately assuming the same responsibility for services to Indian residents as they do for services to others.

At the same time, the Government proposes to transfer all remaining federal responsibilities for Indians from the Department of Indian Affairs and Northern Development to other departments, including the Departments of Regional Economic Expansion, Secretary of State, and Manpower and Immigration.

It is important that such transfers take place without disrupting services and that special arrangements not be compromised while they are subject to consultation and negotiation.  The Government will pay particular attention to this ...

5  Claims and Treaties

Lawful obligations must be recognized

Many of the Indian people feel that successive governments have not dealt with them as fairly as they should.  They believe that lands have been taken from them in an improper manner, or without adequate compensation, that their funds have been improperly administered, that their treaty rights have been breached.  Their sense of grievance influences their relations with governments and the community and limits their participation in Canadian life.

Many Indians look upon their treaties as the source of their rights to land, to hunting and fishing privileges, and to other benefits.  Some believe the treaties should be interpreted to encompass wider services and privileges, and many believe the treaties have not been honoured.  Whether or not this is correct in some or many cases, the fact is the treaties affect only half the Indians of Canada.  Most of the Indians of Quebec, British Columbia, and the Yukon are not parties to a treaty.

The terms and effects of the treaties between the Indian people and the Government are widely misunderstood.  A plain reading of the words used in the treaties reveals the limited and minimal promises which were included in them.  As a result of the treaties, some Indians were given an initial cash payment and were promised land reserved for their exclusive use, annuities, protection of hunting, fishing and trapping privileges subject (in most cases) to regulation, a school or teachers in most instances, and, in one treaty only, a medicine chest.  There were some other minor considerations such as the annual provision of twine and ammunition.

The annuities have been paid regularly.  The basic promise to set aside reserve land has been kept except in respect of the Indians of the Northwest Territories and a few bands in the northern part of the Prairie Provinces.  These Indians did not choose land when treaties were signed.  The government wishes to see these obligations dealt with as soon as possible.

The right to hunt and fish for food is extended unevenly across the country and not always in relation to need.  Although game and fish will become less and less important for survival as the pattern of Indian life continues to change, there are those who, at this time, still live in the traditional manner that their forefathers lived in when they entered into treaty with the government.  The Government is prepared to allow such persons transitional freer hunting of migratory birds under the Migratory Birds Convention Act and Regulations.

The significance of the treaties in meeting the economic, educational, health and welfare needs of the Indian people has always been limited and will continue to decline.  The services that have been provided go far beyond what could have been foreseen by those who signed the treaties.

The Government and the Indian people must reach a common understanding of the future role of the treaties.  Some provisions will be found to have been discharged; others will have continuing importance.  Many of the provisions and practices of another century may be considered irrelevant in the light of a rapidly changing society, and still others may be ended by mutual agreement.  Finally, once Indian lands are securely within Indian control, the anomaly of treaties between groups within society and the government of that society will require that these treaties be reviewed to see how they can be equitably ended.

Other grievances have been asserted in more general terms.  It is possible that some of these can be verified by appropriate research and may be susceptible of specific remedies.  Others relate to aboriginal claims to land.  These are so general and undefined that it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to Indians as members of the Canadian community.  This is the policy that the Government is proposing for discussion.

At the recent consultation meeting in Ottawa representatives of the Indians, chosen at each of the earlier regional meetings, expressed concern about the extent of their knowledge of Indian rights and treaties.  They indicated a desire to undertake further research to establish their rights with greater precision, elected a National Committee on Indian Rights and Treaties for this purpose and sought government financial support for research.

The Government had intended to introduce legislation to establish an Indian Claims Commission to hear and determine Indian claims.  Consideration of the questions raised at the consultations and the review of Indian policy have raised serious doubts as to whether a Claims Commission as proposed to Parliament in 1965 is the right way to deal with the grievances of Indians put forward as claims.

The Government has concluded that further study and research are required by both the Indians and the Government.  It will appoint a Commissioner who, in consultation with representatives of the Indians, will inquire into and report upon how claims arising in respect of the performance of the terms of treaties and agreements formally entered into by representatives of the Indians and the Crown, and the administration of moneys and lands pursuant to schemes established by legislation for the benefit of Indians may be adjudicated.

The Commissioner will also classify the claims that in his judgment ought to be referred to the courts or any special quasi-judicial body that may be recommended.

It is expected that the Commissioner's inquiry will go on concurrently with that of the National Indian Committee on Indian Rights and Treaties and the Commissioner will be authorized to recommend appropriate support to the Committee so that it may conduct research on the Indians' behalf and assist the Commissioner in his inquiry.

6  Indian Lands

Control of Indian lands should be transferred to the Indian people.

Frustration is as great a handicap as a sense of grievance.  True co-operation and participation can come only when the Indian people are controlling the land which makes up the reserves.

The reserve system has provided the Indian people with lands that generally have been protected against alienation without their consent.  Widely scattered across Canada, the reserves total nearly 6,000,000 acres and are divided into about 2,200 parcels of varying sizes.  Under the existing system, title to reserve lands is held either by the Crown in right of Canada or the Crown in right of one of the provinces.  Administrative control and legislative authority are, however, vested exclusively in the Government and the Parliament of Canada.  It is a trust.  As long as this trust exists, the Government, as a trustee, must supervise the business connected with the land.

The result of Crown ownership and the Indian Act has been to tie the Indian people to a land system that lacks flexibility and inhibits development.  If an Indian band wishes to gain income by leasing its land, it has to do so through a cumbersome system involving the Government as trustee.  It cannot mortgage reserve land to finance development on its own initiative.  Indian people do not have control of their lands except as the Government allows, and this is no longer acceptable to them.  The Indians have made this clear at the consultation meetings.  They now want real control, and this Government believes that they should have it.  The Government recognizes that full and true equality calls for Indian control and ownership of reserve land.

Between the present system and the full holding of title in fee simple lie a number of intermediate states.  The first step is to change the system under which ministerial decision is required for all that is done with Indian land.  This is where the delays, the frustrations and the obstructions lie.  The Indians must control their land.

This can be done in many ways.  The Government believes that each band must make its own decision as to the way it wants to take control of its land and the manner in which it intends to manage it.

It will take some years to complete the process of devolution.

The Government believes that full ownership implies many things.  It carries with it the free choice of use, of retention or of disposition.  In our society it also carries with it an obligation to pay for certain services.  The Government recognizes that it may not be acceptable to put all lands into the provincial systems immediately and make them subject to taxes.  When the Indian people see that the only way they can own and fully control land is to accept taxation the way other Canadians do, they will make that decision.

Alternative methods for the control of their lands will be made available to Indian individuals and bands.  Whatever methods of land control are chosen by the Indian people, the present system under which the Government must execute all leases, supervise and control procedures and surrenders, and generally act as trustee, must be brought to an end.  But the Indian land heritage should be protected.  Land should be alienated from them only by the consent of the Indian people themselves.  Under a proposed Indian Lands Act full management would be in the hands of the bands and, if the bands wish, they or individuals would be able to take title to their land without restrictions.

As long as the Crown controls the land for the benefit of bands who use and occupy it, it is responsible for determining who may, as a member of a band, share in the assets of band land.  The qualifications for band membership which it has imposed are part of the legislation-the Indian Act-governing the administration of reserve lands.  Under the present Act, the Government applies and interprets these qualifications.  When bands take title to their lands, they will be able to define and apply these qualifications themselves.

The Government is prepared to transfer to the Indian people the reserve lands, full control over them and, subject to the proposed Indian Lands Act, the right to determine who shares in ownership.  The Government proposes to seek agreements with the bands and, where necessary, with the government of the provinces.  Discussions will be initiated with the Indian people and the provinces to this end.

Canada, Department of Indian Affairs and Northern Development, Statement of the Government of Canada on Indian Policy, 1969 (Ottawa, 1969), 8-12.

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1969 - White Paper

The government's response to the Hawthorn Report and the general climate of social reform in the 1960s was a document that the federal authorities widely regarded as revolutionary in approach. The existing policies for the administration of Natives in Canada were clearly not working to the satisfaction of either the government or the Aboriginal peoples, and a new set of ideas was proposed in a "White Paper" released in 1969. The White Paper proposed that the British North America Act be amended to eliminate any distinctions between Natives and other Canadians, that the Indian Act be repealed altogether, that the Department of Indian Affairs be scrapped, and that Natives should take over complete administration of their reserves. Federal responsibilities were to be passed on to the provinces, and Natives henceforth were to be considered as individual citizens. In effect, any special status that Natives had possessed was to be revoked, and treaties were to be abandoned as irrelevant. Native peoples viewed these proposals both as an abandonment of treaty rights as compensation for lands and as another attempt at assimilation. The Alberta Indian Association articulated the response of most Native groups in a report entitled Citizens Plus, which stated that Natives did not require wardship, but that their peoples' special status did necessitate recognition as did the rights established by treaties. The federal government eventually abandoned the White Paper in the face of almost unanimous and strident opposition from Aboriginal communities.

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In 1969, the government of Pierre Trudeau issued a proposal for major policy changes (a so-called a White Paper) that reflected Trudeau’s liberal ideas on the importance of individual rights and the equality of all citizens. The government argued that there could be no such thing as Aboriginal rights in a society where all citizens were equal. It proposed to abolish the Department of Indian Affairs, to repeal The Indian Act, and to transfer responsibility for any remaining programs to the provinces.

Aboriginal leaders were horrified. They interpreted the move as a climax of the old assimilationist policy and challenged the White Paper’s proposals on several grounds. They argued that it was a unilateral abrogation of the treaty agreements and that it abandoned the federal government’s constitutional responsibility for Indian affairs. And, above all, they argued that it denied the idea of Aboriginal rights.

Aislin cartoon showing how Minister of Indian Affairs Jean Chrétien seriously underestimated how opposed the Native community would be to his White Paper on Indian policy.

What Smoke Signals

Strong Native protests in response to the White Paper got the Trudeau government's attention, as captured by Montreal cartoonist Aislin. Minister of Indian Affairs Jean Chrétien, shown here, seriously underestimated how opposed the Native community would be to his White Paper on Indian policy.
Aislin - Montreal.

1974 - Native People's Caravan

Native protest movements have taken various forms and embraced a wide range of causes. In 1974, a cross-country trek from Vancouver was organized to draw attention to the poor living conditions endured by many Natives in Canada. The Native People's Caravan, as it was called, had a number of demands. Its members supported the repeal of the Indian Act, suggesting that it be replaced by different legislation that recognized Native self-determination and land sovereignty. They also focused on the social, health, and educational problems that Native peoples confronted. The highlight of the march was intended to be the issuing of a manifesto during a rally on Parliament Hill in Ottawa. The government overreacted to the march, calling out the riot police and the military to confront a peaceful protest movement. The government's actions brought further media attention to the event and the demands the Natives were making. The caravan, however, had little practical impact on the amelioration of Native conditions.

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The policy proposals were challenged in many ways: Indian Affairs offices in Ottawa and Calgary were occupied, bridges were blockaded at Montreal, Cornwall, Ontario, and Cache Creek, British Columbia, and a park near Kenora, Ontario, was occupied. In 1974, a Native Peoples Caravan traveled across the country gathering support to bring a message to Ottawa that called for constitutional recognition of "the hereditary and treaty rights" of all Aboriginal people, including the Métis and non-Status Indians.


Native Delegates Listen as Jean Chretien, Minister of Indian and Northern Affairs, formally withdraws the White Paper policy, Ottawa, ON, 1970

Native Delegates Listen to Jean Chrétien, Minister of Indian and Northern Affairs, Ottawa, ON, 1970

First Nations peoples throughout Canada opposed the federal government's White Paper (1969), which proposed the abolition of the Indian Act and the transfer of responsibility for Native programs to the provinces. Due to vociferous opposition, the federal government, specifically Minister of Indian and Northern Affairs Chrétien, formally withdrew the policy at this meeting with Native leaders.
NAC (PA-170161)

1973 - Calder v. Attorney General

The long-standing grievances of the Nisga'a people of B.C. over title to their lands reached the Supreme Court in 1973, with results that had  profound implications for Aboriginal rights in Canada. The Nisga'a case challenged the decision in St. Catharine's Milling, which had insisted that the Royal Proclamation was the legal basis of Aboriginal title. The Nisga'a demanded recognition of the fact that they held Aboriginal title independent of the British proclamation and that that title had never been extinguished. The Supreme Court divided on the question as to whether the Nisga'a retained title to the land, but it did not rule out the idea of Aboriginal title based on occupancy and use rather than on the Royal Proclamation. In spite of losing the case on the technicality of not having obtained permission from the attorney general of B.C. to launch the law suit, the Nisga'a challenge had won some major concessions from the court in that the judgement effectively overturned the St. Catharine's Milling decision. The decision had the immediate impact of halting the James Bay hydroelectric project in Quebec, where Native opponents were able to claim that title to the affected lands had never been extinguished. Subsequent negotiations led to  the James Bay and Northern Quebec Agreement. The Calder decision was also acknowledged by Prime Minister Trudeau as a factor in his reconsideration of the fundamental and objectionable premises of the controversial White Paper; his government then began to put in place a lands claims policy.

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Perhaps the most important challenge came through the courts. The Nisga’a people of British Columbia had resorted to the court system to obtain recognition of their rights to lands that had not been signed away in a treaty but that the province of British Columbia continued to insist was Crown land. In 1973, the Supreme Court ruled against the Nisga’a on a technical legal point, but, in the decision, six of the seven judges acknowledged that there was, indeed, such a thing as Aboriginal title to their lands. The case, known as the Calder case, provided the first recognition by the Canadian courts that there might be some legal validity to the concept of Aboriginal land title.

1969 - Indian Claims Commission

The Joint Parliamentary Committee, inspired by the American example and continuing problems in British Columbia and at Oka in Quebec, first put forward the idea of an Indian claims commission in 1961. It was not until 1969, however, in the wake of the furor over the White Paper, that the commission became a reality. Dr. Lloyd Barber, Vice-President of the University of Saskatchewan, was appointed as Indian claims commissioner and empowered to accept and evaluate Indian grievances to determine the means by which they might most successfully be resolved.

Initially, the idea of Aboriginal rights was excluded from the commission's jurisdiction, a not surprising circumstance in light of the government's White Paper and Prime Minister Pierre Trudeau's stated opposition to special rights. This point aggravated Native opinion, although the government eventually relented. The expansion of the commission's mandate to include comprehensive claims in addition to the more specific claims arising from treaty violations or non-fulfillment of terms indicated a significant shift. This redirection permitted the consideration of Aboriginal rights, although it was not officially identified as such until the Calder case established the legal validity of these rights.

The commission lasted only until 1977, but, in the end, won the support of some Indian rights activists, including Harold Cardinal, because of the widely recognized open-mindedness and fairness displayed by Commissioner Barber. The impact of the commission, however, was limited. The final report stressed the importance of Natives taking a leading role in establishing and claiming their rights, a process that would require Natives to research their own positions and to minimize reliance on outside assistance. This recommendation would support both the funding of Native inquiries and the employment of Natives in the work involved. But the Indian Claims Commission was unable to determine the best way to resolve claims or to establish principles to guide the resolution process. Nor was it able to devise an appropriate structure to deal with them. Such a mechanism has yet to be developed.

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After the Calder decision, the government established the Office of Native Claims to coordinate the investigation of claims issues. Two types of claims would be considered under the new policy. The first (later to become known as comprehensive claims) were cases in which no treaty had been signed and no laws had been passed to reduce or remove Aboriginal "use and occupancy" of the land in question. The second type of claim (later to become known as specific claims) was to cover cases in which some form of "lawful obligation" of the government toward Native people had not been fulfilled, such as a failure to honour treaty provisions. Under the new policy, loans would be provided to claimants to allow them to pursue their cases. The government intended that the process would address grievances and reach final settlements so that issues of land and resource ownership would no longer be a problem.

The Trudeau government backed down in other areas as well, and the proposals of the 1969 White Paper were withdrawn. But the debate about Aboriginal rights had become very public and very heated. Public opinion, swayed by the new ideas about civic rights emerging from the social change movements of the 1960s, appeared more willing to consider claims for special status. Aboriginal leaders began to call for constitutional recognition of that status as a way to protect their people from the vagaries of changing governments. They also began calling for a legal recognition of the right to self-government as a means to distance themselves from the assimilationist program.

Constitutional Debates

These debates led to a flurry of activity in the early 1980s. When the Trudeau government initiated discussions over the patriation of the constitution, Aboriginal leaders argued (unsuccessfully at first) that they should be represented alongside the provincial premiers at the talks. Failing that, they argued that a section should be added to the proposed Constitution Act that would recognize the existence of Aboriginal rights. These arguments met with considerable resistance from several of the provincial premiers, who in turn argued that no clear definition of Aboriginal rights existed and that agreeing to entrench them in the constitution was tantamount to signing a blank cheque. After some intensive lobbying and considerable debate in the mass media, the government agreed to something of a compromise. Section 35 of the Constitution Act (1982) was created, stating: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." The next sentence was a clearer victory for the Aboriginal leadership, who had long worked to get beyond the narrow definitions of The Indian Act. "In this Act," it went on, "'aboriginal peoples of Canada' includes the Indian, Inuit and Metis people of Canada."

Photo of the signing of the Constitution Act, 1982

Repatriating the Constitution, Ottawa, ON, Apr. 1982

Queen Elizabeth II signs the Constitution Act, 1982. The Queen is accompanied by (left to right) Gerald Regan, Pierre Elliott Trudeau, Michael Pitfield, and Michael Kirby.
NAC (PA-140705, photo by Robert Cooper).

1983 - Penner Report

The hopes of Native leaders that self-government for Aboriginal peoples could be realized were at their highest in 1983 with the release of the report of the Special Parliamentary Committee on Indian Self-Government. The committee, chaired by Liberal MP Keith Penner, stated that Native communities would prefer self-government rather than representation in Canadian legislative bodies.  The committee thus recommended that the Indian Act and the Department of Indian Affairs be phased out over an extended time period and replaced by local governments established by Native peoples themselves. Such recommendations, however, required the co-operation of the provincial legislatures, many of which were unwilling to opt for such a radical change. In 1984, the Penner Report fell to the wayside with the election of a Conservative government  that was more concerned with finding  a solution to the constitutional quagmire than addressing Aboriginal rights.

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In that same year, a special parliamentary committee chaired by Liberal MP Keith Penner addressed the question of self-government. Its report, issued in 1983, recommended that the government should recognize that Aboriginal people had a right to self-government and that such a right should be included in the Constitution Act as a safeguard. It also recommended that the Indian Affairs department be replaced by a Ministry of State for First Nations Relations as a final break with the old paternalistic and assimilationist policy. The government appeared ready to move on the proposals, but a draft bill died when an election was called in 1984 and the Liberal government was defeated at the polls.

1990 - Elijah Harper Defeats the Meech Lake Accord

Attempts to achieve Native self-government encountered a stumbling block with the election of a Conservative national government in 1984. Concentration was focused on the constitutional problem, and federal attention was directed toward the negotiation of the Meech Lake Accord. Under the accord, which had been agreed upon by the Prime Minister and the provincial premiers, the province of Quebec would be constitutionally recognized as a distinct society. For it to take effect, however, the agreement required ratification by the provincial legislatures within three years. Native representatives had been shut out of the constitutional discussions, and Native leaders were discouraged by this evidence that their concerns were less important than those of other special groups in Canada. Elijah Harper, an NDP member of the Manitoba Legislature and Chief of the Oji-Cree band of Red Sucker Lake, objected to the government's actions and was in a position to do something about it. With time running out, Harper chose to withhold his vote from the unanimous consent required to override the standard parliamentary procedure and allow a vote on the accord to be held. Supported in his actions by the Speaker of the Manitoba Legislature, Harper prevented Manitoba from considering the accord, thereby effectively defeating it. In doing so, he served notice that the Aboriginal peoples of Canada would not be ignored in the constitutional restructuring of the nation. Harper's defeat of Meech Lake took place in June of 1990, adding to the emotional tension during the Oka crisis in Quebec that began the next month.

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Meanwhile, Native leaders were pursuing changes in another forum. Although they had been excluded from the first round of constitutional talks, Native delegates attended the 1983 First Ministers’ Conference but were unable to convince the politicians to recognize their arguments about self-government. At the third conference in 1987, frustration mounted when the ministers devised the Meech Lake Accord, a constitutional proposal that recognized Quebec as a distinct society. Why were politicians willing to acknowledge Quebec’s claims, when similar calls from Native leaders went unheeded? When the Manitoba Legislature met to ratify the Accord, Elijah Harper, a representative from northern Manitoba, and the sole Native member of the house, refused to vote. Without unanimous consent of the provinces by the deadline date, the Meech Lake Accord died. Native people across the country acclaimed Elijah Harper as a hero.

Native Women and Status

By then, another challenge to the regulations governing Aboriginal status was coming from a different direction. Recall that Native women who married non-Natives had been required to give up their Indian status under the provisions of The Indian Act because they were now considered to be assimilated. In 1982, however, the Canadian government had created the Charter of Rights and Freedoms, which explicitly forbids discrimination on the basis of sex. A number of Native women decided to challenge The Indian Act on the grounds that it discriminated against women because men were not required to give up their status when they married non-Natives.

Bill C-31, 1985

After 1985, the government ceded to Natives the right to determine band membership, a power the government had previously held. Now, there were two types of legally recognized Natives: those who were listed as band members under the old terms of the Indian Act and those who were registered according to the new selection process.

33-34 ELIZABETH II

CHAPTER 27

An Act to amend the Indian Act

[Assented to 28th June, 1985]

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

6.(1)Subject to section 7, a person is entitled to be registered if

(a)that person was registered or entitled to be registered immediately prior to April 17, 1985;

(b)that person is a member of a body of persons that has been declared by the Governor in Council on or after April 17, 1985 to be a band for the purposes of this Act;

(c)the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iv), paragraph 12(1)(b) or subsection 12(2) or under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(2), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;

(d)the name of that person was omitted or deleted from the Indian Register, or from a band list prior to September 4, 1951, under subparagraph 12(1)(a)(iii) pursuant to an order made under subsection 109(1), as each provision read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as any of those provisions;

(e)the name of that person was omitted or deleted from the Indian Register, or from band list prior to September 4, 1951

(i)under section 13, as it read immediately prior to September 4, 1951, or under any former provision of this Act relating to the same subject-matter as that section, or

(ii)under section 111, as it read immediately prior to July 1, 1920, or under any former provision of this Act relating to the same subject-matter as that section; or

(f)that person is a person both of whose parents are or, if no longer living, were at the time of death entitled to be registered under this section.

(2)Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1).

(3)For the purpose of paragraph (1)(f) and section (2),

(a)a person who was no linger living immediately prior to April 17, 1985 but who was at the time of death entitled to be registered shall be deemed to be entitled to be registered under paragraph (1)(a); and

 

(b)a person described in paragraph (1)(c), (d) or (e) who was no longer living on April 17, 1985 shall be deemed to be entitled to be registered under that paragraph.

7.(1)The following persons are not entitled to be registered:

(a)a person who was registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and whose name was subsequently omitted or deleted from the Indian Register under this Act; or

 

(b)a person who is the child of a person who was registered or entitled to be registered under paragraph 11(1)(f), as it read immediately prior to April 17, 1985, or under any former provision of this Act relating to the same subject-matter as that paragraph, and is also the child of a person who is not entitled to be registered.

(2)Paragraph (1)(a) does not apply in respect of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act.

(3)Paragraph (1)(b) does not apply in respect of the child of a female person who was, at any time prior to being registered under paragraph 11(1)(f), entitled to be registered under any other provision of this Act.

An Act to amend the Indian Act, Statutes of Canada 1985, c. 27.

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In 1985, the government capitulated with an amendment to the Indian Act called Bill C-31. Under the terms of the bill, women who had lost their status through marriage could apply to the Department of Indian Affairs for reinstatement, and their children could also gain Indian status.

There was a good deal of opposition to the bill when it was proposed from band councils across the country. Some clearly feared that large numbers of women would apply for reinstatement and then wish to return to the reserves, where resources like housing and employment opportunities were already severely limited. In short, the communities would be unable to cope with the additional pressures. Others argued that women who had married non-Natives had sold out their heritage and had no right to try to reclaim it. Still others argued that the federal government was yet again dictating who was to be considered "Indian" and that was a right that only Aboriginal peoples themselves should have.

1985 - Bill C-31

The Gradual Enfranchisement Act of 1869, in defining those eligible for Indian status, had excluded women who married non-Indian men from eligibility for treaty and other benefits. In 1985, this portion of the Act was finally repealed with Bill C-31, a somewhat controversial measure that granted women the right to maintain their Indian status upon marriage. The bill also reinstated that status to those who had lost it by acquiescing to the enfranchisement process, obtaining a university degree, or by serving in the armed forces during the Second World War. Within six years of the bill's passage, over 69,000 individuals had been granted their Indian status once again, but this did not mean that all were accepted back onto the reserves they had left. Many bands saw this legislation as another legal creation of the federal government without input from Native people and a measure that created as many problems as it solved. Several reserves were already overcrowded, with too many people sharing too few resources. Wealthier bands, with profits from resource-leasing revenues, feared opportunistic claims from individuals more interested in the monetary benefits of Indian status than in maintaining Native culture. A band from northern Alberta pressed its opposition to the measure in a federal court case, but the decision in Sawridge Band v. Canada upheld the legislation. The dissension that Bill C-31 caused among Natives prompted the government to relent somewhat, devising yet a new category of "Indians" in the process. In essence, the government has established procedures to allow bands to determine their own membership lists, with the result that "Bill C-31 Indians" now exist as a subgroup within the larger body of Status Indians.

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In part to address this last concern, another component of Bill C-31 permitted bands (for the first time since Confederation) to determine who could be a member. Band councils were given until mid-1987 to devise a membership code, which then had to be approved by the Department of Indian Affairs. Now, essentially two types of Indian were recognized in law: one might be a "registered" Indian under the old terms of the Indian Act or a "band member" Indian under the local regulations of a band.

Land Claims

The problem of Native land claims was also much debated in the mid-1980s. The claims processes introduced following the Calder decision had bogged down in the complex issues and cumbersome procedures. By the early 1980s, everyone was frustrated.

Cartoon in which Montreal cartoonist Aislin suggests both the frustration Native leaders and a solution to Canada's unending consitutitonal debates

"Give the Country Back," 1991

This cartoon, by Aislin, suggests both the frustration Native leaders and a solution to Canada's unending consitutitonal debates. The constitutional squabbling between the provinces and Ottawa gave the sense that few leaders wanted to promote national unity. More positively, Native leaders, who had been left out of the constitutional process in the past, participated in discussions during the Charlottetown debates.
Aislin - Montreal.
Over $100 million had been spent on comprehensive claims, but only three agreements had actually been signed. Of the 70 specific claims submitted, only 12 had been settled. Dozens of other groups were still waiting just to be told whether the government would consider their cases. Furthermore, a major philosophic disagreement had emerged over the purpose of the process. Some Aboriginal leaders argued that Aboriginal land title could not (or should not) be signed away, fearing that by giving up their rights to the land, they would also be giving up their other Aboriginal rights.

In 1985, Minister of Indian Affairs David Crombie appointed a committee to investigate the problems with the claims process. The resulting report, entitled Living Treaties, Lasting Agreements, proposed major changes to both the claims process and the purpose behind it. Among its recommendations was the idea that the government should not, as it had done in the old treaties and the first claims settlements like the James Bay and Northern Quebec Agreement of 1975, try to negotiate final settlements in which Aboriginal people gave up their claim to the land. Instead, the report proposed that a process be established to permit negotiation of specific issues as they arose, creating a true social contract between Aboriginal peoples and the Canadian state. Aboriginal people would continue to have an interest in the land and that interest would have to be considered each time new proposals for land use or resource development arose.

While the leadership of the Assembly of First Nations welcomed the report as a fresh approach to an old problem, officials at the Department of Indian Affairs were less enthusiastic. Instead, officials continued to pursue the approach of negotiating on specific issues. One of the most important of these processes was the Treaty Land Entitlement program which dealt with cases of Western Native groups who had not received all the land to which they were entitled under the terms of the numbered treaties. The first settlement was reached in Saskatchewan after lengthy debate. Under the Saskatchewan Treaty Land Entitlement Agreement, federal and provincial funds were to be provided over a 12-year period to permit 25 bands to purchase land and mineral rights from those private owners who are willing to sell. Similar agreements are being pursued in Manitoba and Alberta. In another initiative, the government created the Indian Claims Commission in 1991 to act as a sort of review board for specific cases that the regular claims process had not adjudicated to the satisfaction of the group involved.

Aboriginal Rights

In 1992 Native leaders focused again on the question of constitutional recognition of Aboriginal rights. Another First Ministers’ Conference produced the Charlottetown Accord in an attempt to replace the failed Meech Lake Accord on constitutional change.

Photo of Ovide Mercredit, Native leader in Canada, at Charlottetown Accord BBQ, 1992

Ovide Mercredi, Charlottetown at Charlottetown, PEI, 1992

Native leaders, like Ovide Mercredi, pictured here at a Charlottetown Accord BBQ, played significant roles in the constitutional debates leading to the Charlottetown Accord.
PARO/PEI (Acc. 4547 S.7 file 39 #11).
This time, Native leaders succeeded in convincing the ministers to include a clause that would recognize the "inherent right" of Native people to self-government. However, in a national referendum in 1992, Canadians rejected the Charlottetown Accord.

Obviously the problem of Aboriginal rights is a difficult one, and the failure of the federal government and Aboriginal leaders to reach agreement on how to deal with land and resource rights in particular has led some groups to pursue settlements through avenues outside the official process. In some cases, the disputes have led to open confrontation, as was the case at Oka, Quebec, in the summer of 1990. In other cases, people resorted to the courts. The Calder case has already been noted. More recently, the Supreme Court has ruled in other important cases that bear on the question of the exact extent of Aboriginal rights and government responsibilities.

Cartoon by Aislin captures the national and international attention paid to the Oka crisis in 1990

"Halt," 1990

Quebec's police force, the Sureté du Québec, attempted to resolve the Oka conflict -- a confrontation between Mohawks and the government over disputed lands. Some Quebecers accused the Sureté du Québec of using excessive force and actually escalating the conflict. Aislin's cartoon captures the national and international attention paid to the Oka crisis and the Sureté du Québec's inability to end the conflict.
Aislin - Montreal.

1990 - Oka Crisis

The Oka crisis was in origin a land claims issue. Mohawk peoples objected to the expansion of a municipal golf course onto sacred Native burial grounds during the summer of 1990. To protest this intrusion, Mohawk warriors from the Kanesatake and Kahnawake reserves blockaded a road that led into the golf course near the small town of Oka (south of Montreal). Tensions escalated when the Mayor called in the Sûreté du Québec (SQ) to remove the blockade. The SQ stormed the barricades on 11 July 1990 but met considerable resistance from the well-armed warriors. One officer was shot dead. The Canadian armed forces were called in and a standoff ensued between government and Mohawk forces. Peaceful negotiations ultimately ended the Oka crisis 78 days after it had begun.


The crisis, although marred by violence, has had positive effects for many Canadian Aboriginal people. It helped to give a national profile to First Nations issues, especially regarding land claims, and, according to at least some members of the community, forced governments to listen to and take seriously Native grievances. Oka became a rallying cry for Native peoples, encouraging them in their struggle with government authorities for Aboriginal rights.

Photo of Mohawks at Oka watching news of Oka crisis

Mohawks Watching Oka Crisis News on Barricades

Benoît Aquin, Library and Archives Canada, 3602895

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1990 - R. v. Sioui

Seemingly, the Indians of each province have had to wage the same court battle to win acknowledgement of rights established by treaty. In Quebec, where no major treaties dealing with the extinguishment of Aboriginal title existed, the problem was exacerbated. In May 1990, four Huron men were charged with cutting trees, camping, and making fires in a Quebec provincial park, actions in violation of provincial regulations. The defendants argued that they were participating in a religious ceremony and were entitled to do so under the Articles of Capitulation, the 1760 agreement by which France had surrendered the territory to England. Under this agreement, England had promised to guarantee the Indian peoples of New France the free exercise of their customs and beliefs.

This defence hinged on two points: were the Articles of Capitulation valid as a treaty document and, if so, did the agreement supersede the Quebec Parks Act? The Supreme Court of Canada agreed with the defendants. In a ruling that constituted an important contribution to the growing legal support of Aboriginal rights, the Articles of Capitulation were recognized as a treaty document. As such, the rights guaranteed in the articles were confirmed until and unless the descendants of those Huron signatories should themselves relinquish them. In addition, the justices declared that treaties and statutes relating to Indians should be liberally construed and, where uncertainties in law existed, should be resolved in a manner that favoured the Indians involved. The decision also implied that Aboriginal rights could not simply be ignored: for such rights to be extinguished, there had to be an explicit statement of that fact. It was not enough, therefore, just to pass the Parks Act and make the implicit assumption that it overrode Aboriginal rights.

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In the Sioui case, four Huron men in Quebec were charged with such violations as camping and cutting trees in a provincial park contrary to park regulations. They argued that they were free to do these things because of a section in the Articles of Capitulation (1760) between the French and the British. In this section, the British promised to permit the Native peoples free exercise of their customs and beliefs. The case worked its way through the courts until the Supreme Court ruled in favour of the men in 1990. The court agreed that the 1760 document constituted a treaty and its provisions were still in effect. The court further ruled that governments must be open-minded in interpreting treaties or other laws relating to Indians, stating that "uncertainties [should be] resolved in favour of the Indians." The implication was that Aboriginal rights cannot be simply ignored, and treaty agreements do not simply dissolve by default.

1990 - R. v. Sparrow

A frequent feature of Aboriginal cases decided in the Supreme Court has been their humble origins. In 1990, a Musqueam man named Sparrow was charged under the federal Fisheries Act with using a drift net larger than that allowed by the fishing license under which his band operated. In 1996, the Supreme Court ruled in Sparrow's favour, asserting that Aboriginal rights to fish could not simply be eliminated by provincal regulations; such rights had to be extinguished explicitly and only for good reason. The court also reiterated the Crown's fiduciary responsibility toward Native peoples, noting that the relationship was supposed to be one of trust. These elements were to govern how Natives were dealt with under the law. The court observed that just because federal legislation had been applied to the Musqueam did not mean that existing Aboriginal rights, such as fishing in particular waters from "time immemorial," had been extinguished. The Sparrow case was the first wherein section 35 of the Constitution affirming "existing aboriginal rights" was applied to the federal and provincial legislative and regulatory powers set out in the British North America Act (1867).

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In another important case, Ronald Sparrow of British Columbia had been charged with using a fishing net longer than that allowed in his band’s fishing licence. He argued that he had an Aboriginal right to fish unimpeded by Canadian regulations, and that Section 35 of the Constitution Act (1982) protected that right. The Supreme Court sent the constitutional question back to trial for technical reasons but ruled that the courts must interpret the phrase "existing aboriginal rights" flexibly. The court also stressed that the federal government was constitutionally obliged to protect Aboriginal peoples through section 91 of the British North America Act and that Aboriginal rights can be extinguished only by clear and explicit legislation. The government could no longer argue that a given right no longer existed simply because laws had been passed to limit hunting seasons or restrict access to fisheries. If a government wanted to do these things, the Sparrow ruling suggested, it must state explicitly that it intended to restrict an Aboriginal right and provide clear reasons for the necessity of doing so.

1991 - Delgamuukw v. British Columbia

The decision of the B.C. Supreme Court in rejecting the land claims of the Gitksan-Wet'suwet'en of northern B.C. stands apart from other recent decisions on Aboriginal rights. The case involved the claim by hereditary chiefs to a 22,000 square mile section of land. They argued that title there had never been extinguished. The Gitksan-Wet'suwet'en asserted their right to govern the territory and demanded damages for the use and loss of resources and land to others. In deciding the case, Chief Justice McEachern overlooked several recent Supreme Court decisions and stirred controversy for the manner in which he chose to render his decision. He affirmed the arguments of St. Catharine's Milling, although they had been overturned in Calder (1973), and stated that Aboriginal title had been extinguished in 1858. He denied jurisdiction to the Gitksan-Wet'suwet'en, pointing out that all governmental powers had been divided between the federal and provincial governments when B.C. entered Confederation in 1871, leaving no area for Native control. The only right they retained was that of fishing, hunting, or trapping over lands for which the Crown as yet had no use. McEachern drew further attention to an already controversial decision by his derogatory attitude toward Natives, expressed in a dismissal of oral history testimony and in the use of language the Supreme Court had described as unacceptable in the Simon case. Although the Gitksan-Wet'suwet'en initially suspended their pursuit of title through the courts, they eventually filed an appeal in the Supreme Court. In 1997, the Supreme Court overturned the B.C. court's decision. (See 1997 entry for the Supreme Court decision.)

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The Delgamuukw case is perhaps the most important of the recent rulings on Aboriginal rights. In 1984, the Gitksan and Wet’suet’en people of British Columbia went to court in order to gain formal recognition of their ownership of some 57,000 square kilometres in the northern part of the province and to confirm that the hereditary chiefs were the legitimate decision-makers in these lands. In 1991, British Columbia Chief Justice Allen McEachern ruled against the Gitksan and Wet’suwet’en on both questions. He argued that the colony of British Columbia had extinguished Aboriginal title and other rights before Confederation. Indeed, he went further and ruled that these groups had been too primitive before contact with Europeans to have had any political institutions or self-government, and so they could not lose the right to something that they never had in the first place. The judgement was highly controversial and the case went to the Supreme Court. Late in 1997, the Supreme Court ordered that the case go back to trial, but in its ruling made a number of extremely important statements about Aboriginal rights and the law. It ruled that the rules of evidence had to be changed to accommodate oral history and tradition. It explicitly defined Aboriginal title as a land right that "includes the right to exclusive use and occupation of the land." And it established a specific set of rules for proving Aboriginal title. And it also ruled that, while governments can infringe on Aboriginal land rights, such interference must be justified by "a compelling and substantial" reason and undertaken with full consultation. Furthermore, such infringement must be consistent with the Crown’s constitutional responsibility to protect Native interests.

The most recent government initiative to deal with the complex issues of Aboriginal rights and serious socio-economic problems of many Aboriginal people in Canada was the establishment of a royal commission by Brian Mulroney’s government in 1991. After a lengthy and expensive process of hearings, research, and reporting, the Commission’s report was released in 1996 by co-chairs René Dussault (a Quebec judge) and Georges Erasmus (a Dene leader from the Northwest Territories). It covered a wide range of topics from residential schools to claims issues. Although the report included numerous recommendations for solutions or means to develop solutions, the long-term impact of the Royal Commission is yet to be seen.

Cartoon in which Montreal cartoonist Aislin suggests both the frustration Native leaders and a solution to Canada's unending consitutitonal debates

"Give the Country Back," 1991

This cartoon, by Aislin, suggests both the frustration Native leaders and a solution to Canada's unending consitutitonal debates. The constitutional squabbling between the provinces and Ottawa gave the sense that few leaders wanted to promote national unity. More positively, Native leaders, who had been left out of the constitutional process in the past, participated in discussions during the Charlottetown debates.
Aislin - Montreal.

Written By

Kerry Abel
Adjunct Professor
Carleton University
This is a brief description of Kerry Abel

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