Key Understanding: Factors of diversity of Aboriginal nations of Canada.
To determine identity, criteria may be categorized as objective or subjective. Objective criteria may include those qualities which are deemed characteristic of a specific identity and by the boundaries of identity as determined by legislation or practice. Subjective criteria may be more difficult to determine because the boundaries are not conducive to measurement. In most instances, self-determination and community acceptance are major tenets of subjective criteria.
In Canada, Indian peoples have been defined according to objective criteria as set out in The Indian Act. The criteria which defines who is Métis results from community and government directives. Key issues to consider are the implications and consequences of who has the power to legally define Indian and Métis peoples in Canada.
The Métis struggle for self-determination can be traced back to the earliest days of contact between the Indigenous peoples and the newcomers. The Métis viewed themselves as a new people and did not identify with either First Nations, nor European peoples. During the fur-trade, many Métis people lived in the Red River Settlement where they developed their own traditions, laws and lifestyles. To protect their way of life, the Métis organized themselves under the leadership of Louis Riel. Since the 1869-70 Red River Resistance and the 1885 Riel Resistance, Métis people have been recognized, as acknowledged in The Constitution Act, 1982.
The identity of Aboriginal peoples in political and legal terms has been largely created by acts of government. Changes to these terms through subsequent legislation have created a complex, categorized system that is often difficult to understand. Teachers may review the different ways the identity of Aboriginal peoples in Canada has been categorized:
| • Indians
Status/Registered • Inuit
| • Métis
| |
| Linguistic Groupings | ||
| Cultural Groupings | ||
Key Understanding: Influences of worldview on daily life.
The way in which we see the world is influenced by a number of factors including cultural background, experience, values, and personal preferences. In Canada, worldviews are expressed in a variety of ways. Some groups express their particular philosophy of life privately and quietly, while others seek to convert others to their ways. When discussing worldview it is important not to over-generalize. Although common elements do exist, it is not always appropriate to seek a single statement of worldview. Individual variances within groups are affected by ethnicity, or the degree to which people identify with their cultural heritage. Within Aboriginal communities, the spectrum of worldviews ranges from the traditional to the mainstream.
Key definitions relevant to this section include:
Worldview: a particular philosophy or view of life.
Philosophy: the use of reason in seeking truth and knowledge, especially the causes of the principles governing existence.
Values: involve one’s principles or standards or judgements about what is valuable or important in life.
Value judgement: a subjective estimate of quality.
Elder: the title given to a respected individual from the Aboriginal community who is a keeper of tradition and worldview; age may be a factor, but not a prerequisite.
It is critical to create a climate for learning that reflects respect for the procedures and protocols involved in the sharing of worldviews, values and philosophy. Consider the complexity of Aboriginal identities, including the degree to which individuals identify with their cultural heritage. Do not assume that all Aboriginal peoples ascribe to, live by, or believe in the same philosophical approach to life. Individuals who are authentic sources of information are available in the community. It is critical to involve them meaningfully in the Native Studies classroom according to local protocols.
Historically in Canada, considerable efforts have been made to eradicate the traditional perspective from Aboriginal existence; for example, through restrictions on use of language, conversion to Christianity and outlawing ceremonies. These practices were reflected in the residential school period and through The Indian Act.
Teachers should seek a balance of traditional and assimilated perspectives of Aboriginal worldview; taking into account the great diversity among Aboriginal peoples themselves.
Key Understanding: The basis of Aboriginal rights.
The term Aboriginal is comprised of the Latin prefix ab meaning from, and the Latin word originalis meaning origin. The concept of Aboriginal rights literally derives from these Latin forms. Aboriginal rights are those rights which Aboriginal peoples have because of their Indigenous status in the place now known as Canada. Aboriginal peoples' historical position as self-governing peoples who occupied and used the land prior to the arrival of the European colonists further confirms special status. Aboriginal rights include everything necessary for survival, including rights to land, language, economic and cultural practices and forms of law and government. An important perspective to consider is presented by Soifer, (1992):
"Indian rights to land, resources, culture, language, a livelihood and self-government are not something conferred by treaties or offered to Indians as concessions by a beneficent government. These are the rights which Indian Nations enjoy from time immemorial. These rights are pre-existing and inviolable. A Canadian constitution can accommodate Indian rights, it cannot diminish, alter or eliminate them (p.293)."
The Métis inherited Aboriginal rights by virtue of their Indian ancestry. As descendants of the original people, the Métis have had their special status accepted in custom and statute, as having an Aboriginal claim to the land and the right to benefit from natural resources. The Manitoba Act, 1870 acknowledges the rights of the Métis nation to land.
To fully comprehend the implementation of Aboriginal rights, students require understanding of the interrelated concepts of nation, sovereignty and treaty.
Key Understanding: The effects of Canada's expansionism of the 1800s.
A confederation is a group of people or organizations brought together for a common purpose. The Confederation of Canada brought together a number of colonies. In the early 1860s, Canada consisted of seven separate British colonies and a large area owned by the Hudson's Bay Company. On July 1, 1867, the new country of Canada came into being.
The British North America Act, 1867 created the Dominion of Canada. The British North America Act (BNA) stated the powers each level of government would hold and outlined the way in which the government of the new dominion would be structured. Section 91(24) has particular significance to Aboriginal peoples as it provided for the federal government to make laws in relation to "Indians, and Lands reserved for Indians".
The National Policy was the economic paradigm that dominated the actions of Canadian decision makers. The plan assigned an economic role for each region of the nation, determined by resources readily available in that region. The nation's manufacturing and industrial heartland would be located in central Canada. The west and Atlantic regions would serve two functions: supply the industries of central Canada with raw resources and serve as markets for the productions of those industries. This economic paradigm provided a need to secure resources for the domestic and export markets. Acquisition of Rupert's Land was a priority of the first Canadian government.
Stages in the relationship between Aboriginals and non-Aboriginals were identified in the 1992 Royal Commission on Aboriginal Peoples as:
A timeline may serve to put the stages into context:
| First Contact | Royal Proclamation 1763 | BNA Act 1867 | Indian Act 1867 | White Paper 1969 | Constitution Act 1982 | Charlottetown Accord 1992 |
Key Understanding: The basis of Treaty rights.
The source of treaty rights is different from the source of Aboriginal rights. Aboriginal rights are considered to be inherent rights. They originate by the fact that Aboriginal peoples occupied those lands prior to the arrival in North America of Europeans. Treaty rights are those rights set out in a treaty which has been negotiated between First Nations and the Crown.
Treaties: Treaties are the instruments used by the Crown to clear lands of Aboriginal title so that settlement or resource development could proceed.
Treaty Rights: Rights which are provided for in the treaties made between the First Nations of Canada and the Crown or Government of Canada.
The 19th century was characterized by an increasing urgency to expand exploration into the interior of Canada. The federal government, in the name of the Queen, subsequently made treaties with the Indian people. In the treaties, the government promised to set aside reserves of land for the Indians and to acknowledge existing rights. In exchange the Indians were required to "cede, release, surrender, and yield" the specific territory and resources involved, to pledge allegiance to the Crown, and to keep the peace. Among Indian leadership it was intended that the original peoples would retain self-government and other pre-existing structures.
In making treaties, the main goals of the federal government were:
Example 1:
One of the earliest recorded treaties was the Great Law of Peace of the Iroquois Confederacy. Background information and complete text of the Great Law of Peace can be found in This Land is Not for Sale, pp. 99-121, and an excerpt can be found in Legacy, Indian Treaty Relationships, p.4. It is believed the Great Law was negotiated sometime before 1450 between the Mohawk, Onondaga, Oneida, Cayuga and Seneca. The Great Law of Peace governed relationships within the confederacy and served as a code of law and form of government.
Example 2:
The Two Row Wampum Treaty was made in the year 1645 between the Kanienkehaka [Mohawk] and the Dutch. The council for the treaty was held at Tawasentha. The Two Row Wampum is a treaty between two sovereign nations. The treaty was symbolised by a belt of white wampum, with two rows of purple shells laid parallel along its length. The two rows represented the two nations who made the treaty.
In September, 1923, Deskaheh, a Cayuga Chief, arrived in Geneva, Switzerland on a diplomatic mission from the Six Nations Reserve to bring the cause of Iroquois nationalism before the League of Nations. Deskaheh's mission is a reminder of the Six Nation's long-standing claim to the right of self-government.
Example 3
An agreement, negotiated in 1844, restored peace between the Métis and the Dakota. During the 1840s the buffalo hunt spread onto the plains which caused Métis buffalo hunters to venture further into Dakota territory. In 1844, the Dakota began negotiating for peace. A series of letters between Cuthbert Grant, as Chief of the Half Breeds and Warden of the Plains, and four Dakota Chiefs restored peace and friendship between the Dakota and the Métis. Text of these letters are found in Métis Development and the Canadian West, Contrasting Worlds, pp. 17-19.
The territories acquired by the British under the Treaty of Paris (1763) were set down in The Royal Proclamation, 1763. The proclamation set guidelines for dealing with Indian treaty negotiations and formed the basis of the British government's legal requirements for Indian treaties. The Royal Proclamation guaranteed:
1. Indian hunting grounds would be preserved (until treaties were signed);
2. Indian peoples would be protected against fraud by private individuals;
3. the British Monarch held exclusive right to enter into negotiations with Indian peoples;
4. treaty negotiations between the British Monarch and Indian peoples would be conducted at public assemblies; and
5. Indian treaties would be the result of the British Monarch negotiating and purchasing Indian hunting grounds from the Indian peoples. (Price, p.7).
Before a treaty was formally made and signed, commissioners appointed by the government travelled to the territory in question to meet with the Indian people. At these meetings all groups were given the opportunity to express their concerns and to make their requests.
The main goals of the Indian negotiators were:
Key Understanding: Interpretation and basis for interpretation of Aboriginal and treaty rights.
Usufructuary Right: The right to use a certain parcel of land, as in hunting, fishing, trapping, and gathering, but without full ownership (fee simple) over that land.
Fiduciary Obligation: A trust-like or legal duty of one party to look after the well-being of another. Both provincial and federal governments have fiduciary obligations that require them to consult with and meet the concerns of the province's Aboriginal people whenever possible.
Points to Remember:
Aboriginal peoples have struggled throughout Canada's history for recognition of their Aboriginal and treaty rights. In many cases, federal and provincial governments and Canadian courts have been unreceptive to Aboriginal claims. For example, in the 1960s the Supreme Court of Canada held that the federal government did not have to respect promises made in treaties by the Crown. Therefore, at that time, hunting rights guaranteed in treaties could be ignored if the federal government passed a law prohibiting hunting.
In terms of litigation and negotiations, there has been mixed success in the recognition of claims and rights. Numerous court cases have clarified some issues with respect to access to Aboriginal and treaty rights. The following three cases represent significant landmark cases, among many, in the development of recognition of Aboriginal and treaty rights.
Calder et al, 1973 Decision
In a suit formally filed by Frank Calder and four other senior chiefs, members of the Nisga'a nation brought an action for a declaration that their Aboriginal title had never been lawfully extinguished. They based their claim on either Aboriginal title, arising from longtime use and occupation, or on recognition of their title by The Royal Proclamation,
1763. The case was decided against the Nisga'a by the Supreme Court of British Columbia, British Columbia Court of Appeals and the Supreme Court of Canada. In the Supreme Court of Canada, one judge ruled against the Nisga'a on a technicality and the remaining six were split 3:3 on two main issues. Mr. Justice Judson, speaking for one view, found that The Royal Proclamation did not apply to the lands historically occupied by the Nisga'a. Furthermore, whatever Aboriginal title may have existed had been extinguished by properly constituted authorities in the exercise of their sovereign powers. The colonial government of B.C. (prior to entering Confederation) had "by implication" exercised an absolute sovereignty over the land, which was inconsistent with any competing interest, including Aboriginal title. Mr. Justice Hall, speaking for the opposing view, found that The Royal Proclamation did apply to the land in question. Moreover, the Nisga'a had demonstrated an Aboriginal usufructuary interest in the lands which could be extinguished only by the Parliament of Canada, and only through a treaty or a specific, federal statute. In the absence of an indication that the sovereign intends to extinguish that right, the Aboriginal title continues.
Sioui Case, 1990 Decision
Four Huron brothers, (Regent, Conrad, Georges, and Hughes Sioui) members of the Lorette Reserve in Quebec, were charged with cutting down trees, camping, and making fires in places not designated in Jacques-Cartier park contrary to provincial regulations. They were convicted by the Court of Sessions of the Peace and appealed to the Superior Court. They admitted they committed the acts with which they were charged in Jacques-Cartier park, which is located outside the boundaries of the Lorette Reserve. However, they alleged they were practising certain customs and religious rites which are the subject of a treaty made between the Hurons and the British, which treaty brings s.88 of The Indian Act into play and exempts them from compliance with the regulations. The treaty that the brothers relied on is a document of 1760 signed by General Murray. This document guaranteed the Hurons British protection and free exercise of their religion, customs, and trade with the English. At that time, the Hurons were settled at Lorette and made regular use of the territory of Jacques-Cartier park. The Superior Court held that this document was not a treaty and dismissed the appeal. A majority of the Court of Appeal reversed this judgment. The Court of Appeal found that the 1760 document was a treaty and that the customary activities or religious rites practised by the Hurons in Jacques-Cartier park were protected by the treaty. Section 88 of The Indian Act made the respondents immune from any prosecution. The case was appealed to the Supreme Court of Canada which dismissed the appeal and upheld the decision of the Court of Appeal.
Although there is no express indication of territorial scope of the treaty, it must be interpreted by determining the intention of the parties at the time the treaty was concluded.
Sparrow Case
Significance:
The Sparrow case is regarded as having important consequences beyond its immediate subject matter, and is seen as a strong and positive affirmation of Aboriginal rights as guaranteed in S.35(1) of The Constitution Act, 1982.
Mending Broken Treaty Promises
Sparrow Case
Due to changes to the Constitution Act in 1982, Aboriginal and treaty rights are beginning to be treated with more respect. However, it is important to note that there are still fundamental disagreements between Aboriginal peoples and various levels of government as to what Aboriginal and treaty rights include and to what extent they can be realized. (Carswell, pp. 21).
In May 1984, this constitutional protection was tested when Ron Sparrow of the Musqueam Band was charged with using a larger fishing net than permitted by federal law. Six years later, the Supreme Court of Canada decided that what he did that day was proper. Sparrow's action challenged the federal government's right to control non-commercial Aboriginal fishing. On May 31, 1990, the Supreme Court of Canada agreed that he had an Aboriginal right to fish for food guaranteed by S.35(1) of The Constitution Act, 1982.
Aboriginal people hold that their Aboriginal prior and subsequent treaty rights include everything necessary for their survival as a people. This includes rights to land, language, economic and cultural practices and forms of law and government. Canadian courts have had difficulty reconciling concepts of Aboriginal rights with the rest of Canadian law, but it is now accepted that the definitions will have to develop slowly as courts make decisions on a case by case basis.