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.
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.
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.
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.
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.
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.
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.
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.
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.
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.