Minority Rights Group International (MRG) Deputy Director, Claire Thomas, writes this opinion piece for the Thomson Reuters News Foundation.+ LEARN MORE
Some 1.3 million indigenous people (the terms Aboriginal people and First Nations are commonly used) inhabit Canada, approximately 3.3 per cent of the population. There are three categories of Aboriginal peoples recognized by the Constitution Act, 1982: Indians, Métis (a culturally distinct people historically of mixed indigenous-European descent) and the Inuit (who live primarily in northern Canada). Aboriginal populations live in every area of the country and form a majority of the population in most northern regions. The 2001 Census found 957,650 individuals who identified themselves as North American Indian, 266,020 as Métis, and 56,330 as Inuit; 44,835 people cited more than one Aboriginal origin. The census figures are sometimes contested to be low: for example, the Métis contend that, based on self-identification (rather than government criteria), there are 350,000 to 400,000 Métis Nation citizens in Canada. Those individuals who have official ‘Indian status’ granted them by the government qualify for rights conferred on Aboriginal peoples under the Indian Act. According to the Indian Registry System, there were 704,851 Status Indians at the end of 2002. Of these, 13,184 were living outside of Canada.
There are 612 First Nations (historically known as ‘bands’) in Canada, of which the League of the Six Nations is the largest. In 2001, Ontario had the largest number (188,315) of people identified as Aboriginal in Canada, followed by British Columbia (170,025) and Alberta (156,220). However, Manitoba had the highest proportion of people identifying themselves as Aboriginal among provinces (13.6%), followed by Saskatchewan (13.5%). In Ontario, 1.7 per cent of the population reported being of Aboriginal origin. Nunavut has the highest proportion of Aboriginal peoples among territories and provinces, with 85 per cent of the population being Aboriginal.
There are 53 Aboriginal languages in Canada, and many more dialects; about half are either close to extinction or endangered. The strength of Aboriginal language continuity has declined steadily over the past 15 years in Canada. The three largest families are Algonquian, Inuktitut and Athapaskan, which together represent 93 per cent of Aboriginal mother-tongue population; Cree, Ojibway and Inuktitut are the largest and most widespread languages. The Algonquian language group, spoken by some 100,000 people, actually contains nine Aboriginal languages: Abenaki, Blackfoot, Delaware, Mi’kmaq, Maliseet, Montagnais-Naskapi, Ojibwa, Potawatomi and Cree. The Crees are spread across Canada in various groupings, each with their own dialects: Plains, Swampy, Northern, Woods, Moose and East. Two of Canada’s territories give official status to Aboriginal languages. In Nunavut, Inuktitut and Inuinnaqtun are official languages alongside English and French, and Inuktitut is a common vehicular language in government. In the Northwest Territories, the Official Languages Act specifies 11 official languages: Dene Suline, Cree, English, French, Gwich’in, Inuinnaqtun, Inuktitut, Inuvialuktun, North Slavey, South Slavey and Tåîchô.
Spirituality, religion and strong values of community play a major role in the lives of most Aboriginal people and a revival of traditional beliefs is under way, especially among the youth. While some First Nations languages are now spoken only by a few hundred individuals, others remain very strong and continue to be used in daily life. When the Europeans first arrived, they found new names for each of the individual peoples. Eeyou and Eenou were renamed Crees; Kanienekaha were called Kanienkehakas, Inuit were called Eskimos, and Innu were called Montagnais. In their own languages, all these terms mean ‘the people’. Today, the original inhabitants prefer to be called First Nations, Aboriginal or Native people.
In general, Aboriginal nations’ social and political structures across the country were and continue to be heavily influenced by the way of life that can be sustained in the local environment. Some are more hierarchical and at one time kept slaves; others are more egalitarian and democratic. Their traditional ways of life follow a seasonal cycle. Among the Eeyou of James Bay, hunters gather in settlements during the summer to trade and socialize, then depart in groups of four or five families for winter hunting grounds as the water freezes in the fall, returning to their settlements as the ice thaws in spring-time.
Approximately 100,000 First Nations hunters and trappers still pursue a traditional way of life in Canada. Most of them use traditionally made hunting implements in conjunction with store-bought equipment such as rifles and all-terrain vehicles. To afford the latter, most engage in selling fur, a trade that is made difficult because of an EU ban on fur imports from Canada promoted by the European animal rights movement, which has a negative effect on First Nations economies. In 2006, similar calls for an EU-wide ban of all seal products were made but were rejected by the EU’s Executive Commission in January 2007.
Today, only about a quarter of all Aboriginal people in Canada still live on their ancestral lands. The 2001 Census also reported that there are 285,625 people of Aboriginal origin living on reserve lands and 1,034,260 living off reserve. Reserves are specified by the Indian Act as a ‘tract of land, the legal title to which is vested in Her Majesty that has been set apart by Her Majesty for the use and benefit of a band’. There are more reserves in Canada than there are First Nations, as many First Nations were granted more than one reserve, either by treaty or other means.
When European explorers first arrived in the territory that is now Canada, they encountered indigenous peoples who had established numerous distinct societies thousands of years before. European traders marvelled at the prosperity, good health, tall stature and lack of disease among the indigenous people they met. By some estimates, two times more First Nations people lived in Canada when the Europeans arrived than do today. Only one-quarter of First Nations people still live in their own original territories.
Many migrated to urban centres as life in their own communities became difficult due to poor living standards, development of their traditional territories and government suppression of traditional ways. Nevertheless, the traditional hunting, fishing and trapping way of life continues to be at the core of life in many First Nations communities, especially those further north, where up to a third of individuals still live off the land full-time and most others go hunting or fishing at least during part of the year.
Since the arrival of the Europeans, the First Nations have been central and at times decisive actors in the development of the territory that is now Canada. Following initial contact, they entered strategic alliances with various European powers, supplying trade goods and permitting access to abundant natural resources. At crucial points in history, various Aboriginal nations agreed to lend their armed might to the protection of French and British interests. Historians note that the first European expeditions to Canada would have been lost to starvation were it not for the assistance provided by First Nations people. An abundance of fur in the vast Hudson’s Bay watershed made First Nations hunters and trappers willing to give up valuable pelts at highly profitable rates to the Hudson’s Bay Company, then a British Crown charter.
In the areas first settled by the French in the 1600s and 1700s, the Kanienkehaka were one of the most militarily formidable Aboriginal nations and acted as regional powerbrokers well into the 1800s. They are the northernmost member of the Iroquois Confederacy, an alliance of six First Nations whose territory spans from what today is southern Quebec into the US Midwest. Traditionally, the Kanienkehaka led an agricultural life, living in large, well-organized communities which still exist today. To the north and north-east of the Kanienkehaka live the Algonquin, Inuit, Innu, Naskapi and Eeyou (Crees) – nations of hunters and trappers with whom the Europeans traded for fur.
Before Canada was a country, Britain recognized that Aboriginal people living there had title to land: the Royal Proclamation of 1763 declared that only the British Crown could acquire land from First Nations, and that was typically done through treaties. In most parts of Canada, the British Crown established treaties with First Nations before Confederation. The new Dominion of Canada continued this policy of making treaties before the west was opened for settlement. More than 70 historic treaties were negotiated between 1701 and 1923, including 11 ‘numbered’ treaties. For example, Treaty 7 is a contract concluded in 1887 between several mainly Blackfoot First Nations tribes, and Queen Victoria of the United Kingdom. The treaty established a delimited area of land for the tribes (Indian reserves) and awarded annual payments and/or provisions from the Queen to the tribes. In exchange, the tribes ceded their rights to far larger areas of land, of which they had earlier been recognized as the owners.
After independence in 1867, much of the Government of Canada’s relationship with First Nations was regulated by the Indian Act. The Indian Act established the rights of registered Indians and of their bands (First Nations); those so registered are termed ‘Status Indian’ and those not recognized under the Act are ‘Non-status Indian’, designating a member of a First Nation who is not entitled to benefits under the Act. A large part of the Act deals with the rights of band members living on reserves, including exemption from federal and provincial taxes and personal property situated on reserve (a term interpreted by the courts to include personal income sufficiently connected to the reserve). The Act is still in force, with various amendments, and is administered by the Minister of Indian Affairs and Northern Development.
Development and colonization
As European settlement progressed in the 1800s, intensive development spread into the interior in the form of railways, roads, mines, urban growth, farmland, logging and later hydroelectric development. Private business interests and public officials viewed development as incompatible with a strong First Nations attachment to vast tracts of resource-rich land. The removal of indigenous peoples from their lands became government doctrine. The removals were achieved through a variety of policy instruments, including assimilation, compulsory schooling by religious orders, forced relocations to Native ‘reserves’ and the destruction of equipment and animals used by First Nations hunters.
Although, in some remote areas, thousands of First Nations people continued living their way of life unchanged and some did not see a white person until the twentieth century, the combination of the colonizing efforts succeeded in virtually wiping out entire communities and even some nations by the early 1900s.
Extinguishment historically was another central aspect of the federal government’s Aboriginal policy. As Aboriginal nations were relocated to reserves, they were obliged to sign treaties or land agreements in which they agreed to ‘extinguish’ or surrender all future claims to their ancestral lands in exchange for reserve lands and certain benefits – for example, the payment to the band of C$5 per member once a year. Treaties were usually signed under duress or impending development of Aboriginal lands. The Government of Canada continues to insist that modern-day treaties will only be signed if they include an extinguishment of all claims to Aboriginal rights and title. While Canada no longer demands the use of the traditional ‘cede, release and surrender’ terminology, it requires language that some claim is identical in effect.
Assimilation of First Nations people was a key method of freeing up land for development. A key element of the assimilation policy was compulsory schooling in church-run institutions established by missionaries during the mid-1800s, initially in the area of modern-day Ontario. The stated goal was to ‘civilize’ the Natives and mould them into God-fearing Canadian citizens, preferably nowhere near their ancestral lands. These schools also intended to fulfil the government’s obligation under the Indian Act to provide education for Aboriginal children. The government operated most schools in partnership with various religious institutions until 1969, when the government assumed full responsibility for the school system. In these ‘residential schools’, many of which remained open until the 1970s (the last federally run residential school closed in 1996), an estimated 100,000 First Nations children endured difficult conditions, including for many sexual, physical and emotional abuse, deprivation and loneliness.
The quality of the schools these children had been forcibly brought to, often from hundreds of kilometres away, was notoriously poor. They saw their families only two months each year and were taught to be ashamed of Aboriginal languages, traditions and cultures. Parents who refused to hand over their children lost government benefits and food rations, a necessity on the many reserves that were devoid of game. After spending their childhoods in such schools, many Natives either could not or would no longer speak their own languages, had lost touch with their communities and had not learnt the skills needed to survive on the land. Many left for the growing cities, often deeply troubled by their experiences.
The abuse caused great social problems for First Nations peoples. It has led to continuing cycles of suicide, sexual and physical abuse, addictions and loss of language and traditional skills. In 1920, when the Indian Act of 1880 was amended to make education compulsory for Native children, a top Indian Affairs policy-maker summarized the intent. ‘Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic, and there is no Indian question, and no Indian department, and that is the whole object of this Bill’, said Duncan Campbell Scott, Deputy Superintendent General of Indian Affairs.
In the same amendment of the Indian Act of 1880 came another change: Ottawa was given the power to force Aboriginal people to give up their legal status as ‘Indians’, which meant they lost federal benefits and exemption from taxes. Those who wanted to attend university faced enormous pressure to give up their status. In 1930, the Indian Act was amended again to permit the government to jail or fine Aboriginal parents if their children did not attend school. The federal government had greater power over Aboriginal children than the provinces had over non-Aboriginal students.
The Indian Act also gave the federal government near absolute control over life on reserves. Reserves are legally controlled by Ottawa, which merely allows First Nations people to ‘use’ the land, but retains the authority to transfer this land to a provincial or municipal government or to a private corporation, without obtaining the consent of the local inhabitants. Most of Canada’s 2,200 reserves were set up in the mid-1800s, often carved out of the worst land available and out of the path of any foreseeable development. All are a fraction of the size of the ancestral land traditionally used to sustain the community. Today, the total area of reserves is one-fifth as large as the amount of land set aside for national parks – less than 0.2 per cent of Canada’s total area. In the USA, the proportion set aside for Aboriginal peoples is 20 times larger.
Until 1960, the Indian Act prevented First Nations people from voting in federal elections unless they agreed to give up their official status as Indians in a formal, irrevocable process known as enfranchisement. Some provinces took even longer, with Quebec granting First Nations people the vote only in 1969.
The Indian Act still effectively prevents reserve residents from mortgaging their land, thus removing an important instrument for entrepreneurs to raise funds for economic ventures. The Indian Affairs minister is also given extraordinary powers to overrule any decision made by elected Aboriginal officials. Historically, Band Councils were given authority to pass by-laws over only minor matters, such as ‘the destruction and control of noxious weeds’ and ‘the regulation of bee-keeping and poultry-raising’. As recently as 1979, Indian Affairs disallowed one Band Council’s by-law to enforce speed limits on its reserve, stating that the by-law exceeded ‘the scope of the powers enumerated in Section 81 of the Indian Act’. Over time, however, many Aboriginal nations have assumed much greater law-making authority – controlling property taxes, zoning and land use (albeit within the very limited reserve land base).
First Nations women fared particularly badly under the Act. If they married a non-Indian man, they immediately lost their Indian status. Many had to leave their communities. The reverse did not apply to First Nations men. This clause was finally removed in 1986, thanks in part to the case brought by Sandra Lovelace to the UN Human Rights Committee. But since then, many First Nations communities have refused to accept back women, arguing that the federal government did not provide them with any additional resources to meet the needs of the new members. Thousands of First Nations women are still waiting to be welcomed home and have had to go to court to force acceptance. Alberta reportedly has the lowest rate of acceptance.
Until the 1960s, the provisions of the Indian Act were enforced by so-called ‘Indian agents’, government-appointed officials who wielded near-absolute powers over the Aboriginal people in their charge. In the Prairies, Aboriginals needed a special permit from the agents to sell their crops or cattle. They could prosecute Aboriginals for offences, preside over Band Council meetings and prohibit Aboriginals from leaving reserves without a pass. Traditional ceremonies, such as the potlatch and sun dance, were suppressed. Many First Nations communities remain ruled by a foreign system of governance that was forcibly imposed by the federal government and replaced traditional systems more suited to the local people’s needs.
The Indian Act and other aspects of the government’s Aboriginal policy have had substantial and devastating impacts on First Nations societies. They created difficult living conditions in First Nations communities, succeeded in controlling First Nations resistance to the government and put overwhelming pressure on Aboriginals to migrate to cities.
Empowerment and reconciliation
Since the 1990s, First Nations peoples across the country have experienced a resurgence of community spirit and pride, organizing activity and political will. One of the earlier dramatic triumphs came in 1994, when the Eeyou (Cree) of northern Quebec declared victory in a six-year international campaign against the Quebec provincial government’s proposed C$13.3 billion Great Whale hydroelectric project, which would have flooded an area the size of Connecticut. Quebec Premier Jacques Parizeau indefinitely postponed the project, citing a lack of energy demand and the desire to make peace with the First Nations.
First Nations peoples have taken control over schools, health care, social services and policing – both on reserves and in urban settings, where a well-organized network of 117 Native Friendship Centres has been established to provide services to Aboriginal people. Since 1990, for instance, the Manitoba First Nations have administered their own education system on reserves. Healing programmes for survivors of abuse and addictions have been initiated. First Nations people have taken a new pride in their languages and cultures, prompting a renewal of Aboriginal traditions like pow-wows, a rapid increase in Aboriginal-language courses, new Aboriginal periodicals, television and radio stations (e.g. the Aboriginal Peoples Television Network) and the First Nations University of Canada in Saskatchewan.
Since 1990, protests over land disputes have pitted First Nations people against police more and more frequently. In the summer of 1990, tensions escalated between Mohawks and the town of Oka, Quebec, over the planned expansion of a golf course onto land the Mohawks claimed was sacred. The 78-day stand-off included the tragic death of 31-year-old Quebec Policeman Corporal Marcel Lemay. In September 1995 two unarmed Chippewa protesters were shot by Ontario Provincial Police at Ipperwash Park. One of the men, Dudley George, died of his wounds.
In November 1996 the five-year Royal Commission on Aboriginal Peoples (RCAP) issued its final 5,000-page report, which called for a profound rebalancing of the Canadian federation to remedy and end the centuries of government neglect, abuse and oppression of the First Nations. The Commission said that Canada’s record was not in keeping with domestic and international standards and constituted its single most serious and pressing human rights issue. ‘There cannot be harmony unless there is justice,’ the Commission stated. ‘Our central conclusion can be summarized simply: The main policy direction, pursued for more than 150 years, first by colonial then by Canadian governments, has been wrong.’ In the end, the Commission cost close to C$60 million, Canada’s costliest Royal Commission at the time. The report contained 400 recommendations. A section of the report titled ‘Looking Forward, Looking Back,’ begins: ‘After some 500 years of a relationship that has swung from partnership to domination, from mutual respect and co-operation to paternalism and attempted assimilation, Canada must now work out fair and lasting terms for coexistence with Aboriginal people.’
At the start of 1998, the Canadian government formally apologized to Aboriginal Canadians for the way they have been mistreated. The Statement of Reconciliation says, ‘Sadly, our history with respect to the treatment of Aboriginal people is not something in which we can take pride. Attitudes of racial and cultural superiority led to a suppression of Aboriginal culture and values. As a country, we are burdened by past actions that resulted in weakening the identity of Aboriginal Peoples, suppressing their languages and cultures, and outlawing spiritual practices.’ The government of Canada has been criticized for largely ignoring the RCAP report and continuing with its traditional policies.
Land claims and self-government
Lands claims and self-government have featured heavily in the cooperation efforts between the Government of Canada and First Nations. Rights pertaining to land and self-government are recognized under Section 35 of the Constitution Act, 1982. So-called ‘Treaty Indians’ have land rights recognized in existing historical treaties. For those First Nations peoples without historic treaties, the ‘comprehensive land claims’ process has been viewed as crucial to securing recognition of their ancestral land rights. Comprehensive land claims negotiations aim to address concerns raised by Aboriginal people, governments and third parties about who has the legal right to own or use the lands and resources in areas under claim. The process of negotiating the settlement of comprehensive claims, which is known as modern-day treaty making, is intended to clarify access and ownership to land and resources and to spur economic development on Aboriginal lands and in surrounding communities.
Comprehensive land claims settlements may also include self-government arrangements. The Constitution Act recognizes that Aboriginal people have an inherent, constitutionally protected right to self-government, a right to manage their own affairs. The Cree-Naskapi Act of Quebec, 1984, became Canada’s first legislation for Indian self-government. In 1995, the Government of Canada adopted an approach to negotiating practical and workable arrangements with Inuit and First Nation people to implement their inherent right to self-government. These arrangements recognize the rights of Inuit and First Nation people to make decisions about matters internal to their communities, integral to their unique cultures, traditions and languages, and connected with their relationship to the land and resources.
Under the federal policy, Inuit and First Nation groups may negotiate self-government arrangements for different things such as government structure, land management, health care, child welfare, education, housing and economic development. Negotiations are held between Inuit and First Nation groups, the federal government and, in areas affecting its jurisdiction and interests, the relevant provincial or territorial government. Self-government arrangements may take many forms, based on the diverse historical, cultural, political and economic circumstances of Inuit and First Nation groups, regions and communities involved. The recognition of the autonomous territory of Nunavut in 1999 is perhaps the most prominent example of Aboriginal self-government in Canada.
While some Aboriginal leaders would advocate that self-government agreements should be negotiated with chiefs from coast to coast working together on a national scale, many of the chiefs are not in accord; they prefer a regional approach, such as that taken by the Assembly of Manitoba Chiefs, which already has a preliminary self-government agreement for that province. Many Aboriginal nations prefer to negotiate and speak for themselves rather than through national or regional organizations.
Over the past 30 years, Aboriginal rights are also slowly being defined through the Canadian courts. For example, in 1990 the Supreme Court of Canada concluded in the Sparrow decision that the Musqueam Indian Band had an existing Aboriginal right to fish. More recently, the Supreme Court also recognized the Métis domestic hunting and fishing rights. For commercial purposes, it has proven more difficult for First Nations people to establish an Aboriginal right to hunt or fish because courts have generally held that commercial trading of fish and game generally emerged after, not before, European contact. The 1999 Mi’kmaq fisheries dispute in Nova Scotia shows that fishing rights issues are still a flashpoint for conflict.
A number of court decisions from the Supreme Court of Canada have made references to Aboriginal land title. These court decisions have made important distinctions between Aboriginal title and other forms of individual property ownership. The most important decision on Aboriginal title is the 1997 Delgamuukw decision from the Supreme Court of Canada. In that case, the Court said that:
- Aboriginal title is a communal right
- Aboriginal title, like other types of Aboriginal rights, is protected under s.35 of the Constitution Act, 1982
- Aboriginal title lands can only be surrendered to the federal Crown
- Aboriginal title lands must not be put to a use which is irreconcilable with the nature of the group’s attachment to the land
- In order for the Crown to justify an infringement of Aboriginal title, it must demonstrate a compelling and substantive legislative objective, it must have consulted with and accommodated the Aboriginal group prior to acting. Normally, compensation may be required for significant infringement.
At the provincial level, reform and reconciliation is also in evidence. Progress was made on completing comprehensive land claims and self-government agreements. The creation of the British Columbia Treaty Commission (BCTC) in 1991 opened an opportunity for First Nations in that province to advance and negotiate settlements in respect of their Aboriginal title claims. Over 50 Nations have submitted their claims and the process is proceeding slowly but substantive progress has been made towards final agreements at many tables, including the Maa-Nulth, Tsawwassen, Sliammon and Lheidli T’enneh negotiations.
Given the vastly different circumstances of First Nations peoples throughout Canada, a one-size-fits-all approach is not practical for addressing Aboriginal and treaty rights of different groups in different parts of the country. Each Aboriginal group has its own culture, customs and traditions. In addition, provinces and territories have their own views and positions on resolving claims and accommodating self-government. Developments in constitutional law since 1982 are helping to define the nature and scope of Aboriginal and treaty rights, challenging government and Aboriginal groups to consider new approaches, such as specific recognition of Aboriginal rights, mechanisms for consulting with Aboriginal groups and accommodating their rights while negotiations are proceeding.
Compared to the Canadian population in general, First Nations people continue to experience the lowest rates of literacy and education, and the highest rates of infant mortality, unemployment, incarceration and suicide. In 2004, a Community Well-Being Index developed by the Department of Indian Affairs and Northern Development found that in the top 100 Canadian communities, there was one First Nation community. In the bottom 100, there were 92 First Nation communities. The housing problem, according to Aboriginal leaders, has reached crisis proportions. Health care and social services are poorly funded and hampered by inadequate training and a lack of Aboriginal personnel. They have struggled to deal with the difficult health and social conditions in Aboriginal communities. The suicide rate among Aboriginals is six times the Canadian average and much higher in some communities. In recent years the situation of Innu people of Quebec and Labrador has exemplified this desperation. In the past 10 years, the population growth of First Nation peoples has outstripped that of white Canadians. However, the purchasing power of indigenous people has actually fallen by 14 per cent, and the government has only increased health and social service spending for the communities on par with inflation, not with the actual increase of people requiring services.
Many First Nations have benefited from profits of reserve-based casinos: in 2004-5 alone, Casino Rama in Ontario generated just over C$91 million after winnings and expenses. Profits are shared among First Nations under a formula that considers population and remoteness. Cash is to be used in five approved areas: community development, health, education, economic or cultural development. The lack of transparency in allocation of the profits has been the subject of some controversy.
Efforts are under way to reform the operation of federal and provincial justice systems as they affect First Nations people; 28.5 per cent of all incarcerated women and 18.2 per cent of all incarcerated men in Canada are Aboriginal. The numbers reach critical levels in the Prairie region, where Aboriginal people make up more than 60 per cent of the inmate population in some penitentiaries. In some jurisdictions, the recommendations of Elders’ Circles are now accepted by the courts. Over 190 policing agreements have been developed with First Nations. Many communities have developed their own healing lodges, and some have taken on the responsibility of monitoring offenders at the time of release.
In 2005, First Nations’ leaders were optimistic that the trend of reform and reconciliation between the Government of Canada and First Nations would continue under the Liberal government. On 24-25 November 2005, Prime Minister Paul Martin, the provincial premiers and Aboriginal leaders met in Kelowna, British Columbia, for the First Ministers Conference on Aboriginal Affairs. It was the first time since the constitutional talks of the mid-1980s that Aboriginal leaders had been invited to take part in a meeting with the prime minister and the premiers. The meeting resulted in a five-year, C$5 billion plan to improve the lives of First Nations, Métis and Inuit peoples.
Paul Martin’s Liberal government was replaced by Prime Minister Stephen Harper’s Conservative government in the January 2006 elections. The new government stated that it is committed to meeting the targets agreed upon at the Kelowna summit by working with ‘aboriginal leaders and provinces and territories to develop a new approach with workable solutions … to deal with the root causes and structural issues causing these socio-economic gaps’. In the 2006 Budget Plan, the government allocated C$150 million in 2006 and C$300 million in 2007 to improve education programmes, provide clean water, upgrade mostly off-reserve housing and close the socio-economic gap between Aboriginal Canadians and the rest of the population. The Kelowna deal would have set aside C$600 million in 2006 alone to improve health, education and housing standards, prompting concerns from First Nations leaders that the Kelowna commitments will not be met. On 2 June 2006, former Prime Minister Martin introduced a private member’s bill that called on the Conservative government to make a clear commitment to the Aboriginal community by living up to the agreements made in the Kelowna accord.
The Standing Committee on Aboriginal Affairs approved a motion calling on the government to support international adoption of the draft United Nations Declaration on the Rights of Indigenous Peoples when it came before the new UN Human Rights Council in June 2006. After receiving approval by the Human Rights Council, the Declaration was considered for adoption by the UN General Assembly. However, in December 2006 the Assembly decided to defer adoption. Ironically, Canada originally played an important leadership role in the UN working group that finalized the text of the Declaration but, along with a few other key nations, voted for the deferral. Indian Affairs Minister Jim Prentice stated publicly that the Declaration conflicts with the Canadian Charter of Rights and Freedoms but never substantiated the claim. The minister also said that the Declaration could lead to criticism of past and current Canadian laws and policies.
A report issued in late 2006 by the Standing Senate Committee on Aboriginal Peoples entitled Examination of the Government of Canada’s Specific Claims Policy was highly critical of the current system for Specific Claims and proposed major reforms to address the settlement gridlock. Over 30 years ago Canada established the Specific Claims Branch to address these specific breaches of lawful obligation concerning the administration of Indian reserve lands. Canada’s failure to properly resource this programme has resulted in an enormous backlog of Specific Claims which, at the current rate of processing, would take several decades to resolve. Canada’s Minister of Indian Affairs has promised to address the Specific Claims backlog.
Commitments to address violence against Aboriginal women were made at a meeting between the Western and Northern Premiers and national Aboriginal leaders that took place in Gimli, Manitoba, in May 2006. Most notable for Aboriginal women is the commitment to hold an Aboriginal Women’s Summit to address violence.
Aboriginal organizations and some church leaders have called on the government to launch an inquiry into residential school abuse, a call that was echoed in the recommendations of the Royal Commission on Aboriginal Peoples. In June 2001, a new department, Indian Residential Schools Resolution Canada, was created to focus federal efforts to manage and resolve abuse claims and address the legacy left by the schools. In November 2003, the government launched the National Resolution Framework, which included a litigation strategy, health supports, a Commemoration Program and an Alternative Dispute Resolution (ADR) process. In total, more than 16,000 former students filed claims for compensation against the government. To date, over 3,700 claims have been resolved through litigation processes and the ADR process. More than C$150 million has been paid to former students who have resolved their claims.
Finally, in May 2006, the Indian Residential Schools Settlement Agreement was reached between representatives of former students of Indian Residential Schools, legal representatives of the Churches involved in running those schools, the Government of Canada, the Assembly of First Nations, and other Aboriginal organizations. The settlement agreement proposes a Common Experience Payment for all eligible former students of Indian Residential Schools, an Independent Assessment Process for claims of sexual or serious physical abuse, as well as measures to support healing, commemorative activities, and the establishment of a Truth and Reconciliation Commission. The settlement will affect the roughly 80,000 people alive today who resided at Indian Residential Schools. The settlement agreement stipulates that C$1.9 billion be set aside for the direct benefit of former Indian Residential School students. Subject to verification, each eligible former student who applies would receive C$10,000 as well as an additional C$3,000 for each year of residence beyond the first year. A Truth and Reconciliation Commission will be established with a budget of C$60 million over five years. It will be mandated to promote public education and awareness about the Indian Residential School system.
The national settlement itself has been criticized as being arbitrary, unfair and inherently racist. While the government of Canada had promised the Assembly of First Nations that all those who attended residential schools would receive a ‘Common Experience Payment’, the government broke its promise and arbitrarily excluded former day students from compensation. Further, the government insisted on a points system for calculating compensation for residential schools survivors who had been sexually and physically abused. Points are to be awarded for different sexual acts perpetrated on the victims (depending upon frequency and severity of the sexual perversions). Canada’s common law of tort does not draw such mechanistic distinctions but rather awards damages based upon the harm suffered by the victim. The national settlement was approved by the Canadian courts despite significant opposition from individual residential schools survivors.
In March 2005, the Government of British Columbia began meetings with representatives of the First Nations Summit, the Union of BC Indian Chiefs and the BC Assembly of First Nations to develop new approaches for consultation and accommodation and a vision for a new relationship to deal with Aboriginal concerns based on openness, transparency and collaboration. The Ministry of Aboriginal Relations and Reconciliation established a C$100 million fund to help First Nations build institutional and community capacity. The Trust will be managed by a seven-member board of directors, independent from government. In October 2006 the first treaty agreement under the BC Treaty Commission was signed. The treaty relates to the Lheidli T’enneh treaty agreement. The Lheidli T’enneh Band has 312 members and entered treaty negotiations in 1993. They were the first to conclude an agreement-in-principle under the BC treaty process in July 2003.
The Ipperwash Inquiry was established by the Government of Ontario on 12 November 2003, under Public Inquiries Act. Its mandate was to inquire and report on events surrounding the death of Dudley George, who was shot in 1995 during a protest by First Nations representatives at Ipperwash Provincial Park and later died. The Inquiry was also to make recommendations that would avoid violence in similar circumstances. The evidence-gathering part of the inquiry stretched from 2004 through to 2006 and heard from more than 100 witnesses. Inquiry commissioner Justice Sidney Linden delivered the final report of the inquiry in May 2007 and found that the government of former Ontario premier Mike Harris, Ottawa and the Ontario Provincial Police all bear responsibility for events that led to the death of Dudley George. He also recommended that the disputed land to be returned immediately to the Stoney Point First Nation, ‘which should also receive compensation’.
Aboriginal leaders have warned that, if Aboriginal concerns are not heard, such confrontations will grow in frequency and blemish Canada’s international reputation.
Despite some evidence of progress, First Nations leaders are still very concerned about issues of water quality, poor housing and poverty. It remains the case that Canada’s First Nations would be placed 48th out of 174 countries on the Human Development Index. The critical nature of the Aboriginal housing and water crisis was in evidence for the Kashechewan, a Cree First Nations community of about 1,900 people, living in an isolated area on the Albany River in Northern Ontario. The community lies on the flood plain of the Albany and many of its buildings are susceptible to flooding in the springtime. In April 2005, the water system became contaminated and raw sewage flowed into about 40 homes. About one-quarter of the 1,900 residents were airlifted to the northern Ontario communities of Timmins, Sudbury and Cochrane because of E. coli in their drinking water. The community had been under a boil-water order for two years. Kashechewan is hardly unique among native communities for having substandard water. Nearly 100 reserves across Canada have boil-water advisories and one, the Kwicksutaineuk First Nation on an island off the BC coast, has had one in effect for nine years.
On land use, the Halfway First Nation of northeastern British Columbia won a landmark victory in 1999 when British Columbia ruled that the Crown must consult and accommodate when contemplating resource development that could negatively affect treaty rights. In 2004, the Haida took the case law a step further: Canada’s Supreme Court (Haida Nation v. British Columbia) held that the Crown’s obligation extended beyond treaty rights and applied to asserted, but unproven, Aboriginal rights and title as well. The decision is expected to have a sweeping impact on similar Indian claims across Canada (see, for example, Taku River v. British Columbia). These cases have confirmed that, while the special constitutional duty of the Crown to Aboriginal peoples cannot be fulfilled by developers, it is important for developers to understand that early and meaningful consultation with potentially affected Aboriginal peoples is an essential element in any best-practice planning model. The Haida have already managed to slow efforts to clear-cut their lands by Weyerhaeuser and other companies. They have stalled plans by Petro-Canada and other companies to drill in ancestral waters should a government moratorium be lifted along the coast. In the Northwest Territories, the 4,000-member Dogrib band in 2003 won the right to control fishing, hunting and industrial development over 15,000 square miles of territory. The nearby Deh Cho band has managed to stall a C$6 billion gas pipeline project planned by ExxonMobil and several other companies through its traditional lands until Ottawa makes major financial and environmental concessions.
Conflict over land title also continues. In Caledonia, Ontario, Six Nations people staged a protest and blockade in early 2006 over a housing development on their ancestral lands. For its loyalty to the British Crown during the American Revolution, the Six Nations were allowed to ‘take possession of and settle’ a strip of land nearly 20 km wide along the Grand River, from its source to Lake Erie, totalling about 385,000 hectares. The developer, Henco Industries, feels that the so-called ‘Haldimand Grant’ (named after the commander of the British forces) was merely a licence to occupy the lands, with legal title remaining with the Crown. Six Nations dispute that claim and have staged a protest that escalated with some incidents of violence over several months in the spring of 2006. In June 2006, the Government of Ontario bought out the land from the developers to hold in trust while talks aimed at ending the occupation continue between representatives of the Six Nations and the provincial and federal governments.
The Lubicon Cree have seen the land on which they depend transformed by logging and large-scale oil and gas extraction. The Lubicon, an indigenous nation of approximately 500 people living in northern Alberta, have never surrendered their rights to their traditional lands. The Lubicon were simply overlooked when a treaty was negotiated with other indigenous peoples in the region in 1899. A reserve promised to them 40 years later was never established. Since the mid-1980s, negotiations with the federal and provincial governments around land rights have repeatedly broken down. Meanwhile, the Lubicon say that their health, their way of life and their culture itself are being steadily destroyed by resource extraction to which they have never consented.
In 2000, the Nisga’a Final Agreement, negotiated outside the British Columbia Treaty Commission process, was passed. It is considered a possible model for other treaty negotiations in British Columbia. The Agreement provided for a financial transfer of C$190 million and the establishment of a Nisga’a Central Government with ownership of, and jurisdiction over, approximately 2,000 sq km of land in the Nass River Valley. It also outlined Nisga’a ownership of surface and subsurface resources on Nisga’a lands, and spelled out entitlements to Nass River salmon stocks and Nass area wildlife harvests. In May 2004, the Westbank First Nation Self-Government Act was given Royal Assent. In January 2005, the Labrador Inuit Association Final Agreement was signed. In February 2005, the Tlicho Land Claim and Self-Government Act was given Royal Assent and the Kwanlin Dun First Nation Final and Self-Government Agreements were ratified. The Quatsimo Framework Agreement (FWA) was signed on 20 April 2004, and the Miawpukek Framework Agreement was initialled on 9 December 2004. The Tulita Framework Agreement was signed in March 2005.
In July 2007 a government bill (Bill C-44) to subject the Indian Act to anti-discrimination provisions of the Canadian Human Rights Act was delayed by opposition MPs. The opposition argued that further consultation was necessary to work out safeguards to ensure the law does not backfire on collective First Nations rights and to equip the country’s First Nation band councils with the resources needed to cope with a flood of complaints that could be lodged before the Canadian Human Rights Commission as a result of the legislation. Bill C-44 would remove a 30-year-old exemption of the Indian Act from the Canadian Human Rights Act. It would extend the reach of the Canadian Human Rights Commission over claims of discrimination that have been shielded because the Indian Act is outside the human rights code. The Canadian Human Rights Act outlaws discrimination in employment and services on such grounds as sex, race, ethnic origin and marital status. The exemption has been condemned in Canada and at the United Nations, but some native groups fear the Act’s focus on individual rights will clash with the traditional emphasis in native communities on consensus and communal rights.
Minorities and indigenous peoples in