Aboriginal Peoples Douglas Brown St Francis Xavier University March 2010

Aboriginal Peoples: Outline of Topics Names and key concepts Early treaties and history of rights Suppression and assimilation Resurgent aboriginal nationalism Key developments since 1980s The Challenge of Self-government

What’s in a name …? Natives “Indians, Eskimos, and Métis” Aboriginal, aboriginees, Amerindian “First Nations” Their names: Inuit, Mi’kmaw, Cree, Mohawk, Nisga’a, Inuit, Mi’kmaw, Cree, Mohawk, Nisga’a, Siksika, Dogrib, Anishnabe, Dene, Gits’kan and so on Siksika, Dogrib, Anishnabe, Dene, Gits’kan and so on

Key terms and concepts Indian Act / Indian bands/ reserves Status/non-status Aboriginal Peoples Aboriginal rights Aboriginal title Self-government Treaty federalism

History of Treaties Early French and British treaties Aboriginal nations have autonomy and independence Aboriginal nations have autonomy and independence A confederal relationship with the Crown? A confederal relationship with the Crown? Title to land and resources held unless ceded Title to land and resources held unless ceded Royal Proclamation of 1763 A Nation-to-nation relationship under Crown sovereignty A Nation-to-nation relationship under Crown sovereignty Provides protection of aboriginal title to the land (and origins of fiduciary obligation) Provides protection of aboriginal title to the land (and origins of fiduciary obligation) Autonomous self-government is inherent and assumed Autonomous self-government is inherent and assumed

History of Aboriginal Rights Early recognition by US courts as “Domestic dependent nations” (1832 US Supreme Court) Later US restrictions – Congress severely limits aboriginal rights, including title. Confederation of Canada, 1867, limits practical room for self-government and promotes non- aboriginal settlement Indian Acts suppress Aboriginal autonomy and culture, and Reserve system isolates and marginalizes First Nations

Rise of Aboriginal Nationalism Rejection of Trudeau Government’s 1969 “White Paper” Rise of a national “Indian Lobby” Growth and diversity of national aboriginal political organizations Increasingly militant politics Influence of academic research and post- colonial ideology

Key events and developments, Constitution Act 1982: section 35 entrenches general aboriginal rights and commits to further negotiation “Aboriginal round” of negotiations, , fails to define key rights including self-government Aboriginal peoples left out of Meech Lake process Aboriginal peoples representatives participate fully in “Canada Round” and in negotiation of the provisions of Charlottetown Accord (although the accord failed to pass in the national referendum)

Since 1990 Major court judgments extend and define aboriginal rights: Calder, Sparrow, Sioui, Marshall Calder, Sparrow, Sioui, Marshall Oka Crisis, summer 1990: armed standoff and greatly increased profile for aboriginal grievances Royal Commission on Aboriginal Peoples (RCAP) ( ) -- redefines the terms of debate towards a nation-to-nation relationship (but not fully acted upon)

Since 1998… Nisga’a Final Agreement, 1998 Nunavut Territory, 1999 Acceleration of more autonomous First Nations governance (i.e. Indian bands) Land claims and treaty processes continue Martin government’s 2005 summit to improve health, education, economic and other conditions Harper’s Residential Schools apology and compensation package

Exercising Self-Government Supreme Court recognizes that s. 35, Constitution Act implies an “inherent right” -- but details still being worked out. Indian Act constraints band councils – considered by some as too small to be effective Practical concerns: Fiscal resources Fiscal resources Administrative capacity Administrative capacity Democratic accountability Democratic accountability

Three Perspectives on Aboriginal Rights and Self-Government 1. Royal Commission on Aboriginal Peoples, 1996 Report: parallel sovereignty 2. Thomas Flanagan, book in 2000 entitled First Nations, Second Thoughts: neo- liberal integration 3. Alan Cairns, book in 2000, Citizens Plus, more pragmatic recognition of difference.

Royal Commission Restore the nation-to-nation relationship; dual citizenship Consolidate Indian bands into original national groups, i.e First Nations Settle outstanding land claims, renew and revive treaties Recognize First Nations’ autonomous governing authority as a third order of government

2. Flanagan – the Neo-liberal view Aboriginals not that different from other Canadians in their life-style Aboriginals not that different from other Canadians in their life-style There can only be one nation (Canada) There can only be one nation (Canada) Aboriginal self-government is wasteful and fractious Aboriginal self-government is wasteful and fractious Do not renew or upgrade treaties Do not renew or upgrade treaties Do not encourage dependence on remote reserve communities Do not encourage dependence on remote reserve communities Concentrate on land, economic development and property rights instead Concentrate on land, economic development and property rights instead

3. Cairns’ “Citizens Plus” Respects notion of aboriginal rights and “positive recognition of difference” Recognizes power of aboriginal nationalism and accepts aspects of dual citizenship Seeks practical solutions to making current self- government arrangements work better Concerned that aboriginal nationalism often seek separateness, which cuts them off from solidarity with Canadians

Concluding Points Aboriginal Rights are here to stay Our system probably has enough flexibility to accommodate them But, negotiations will take a long time and continuing good will Canada and Canadians will be judged on how well we do