| The Justice System and Aboriginal People The Aboriginal Justice Implementation Commission |
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| Report of the Aboriginal Justice Inquiry of Manitoba
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Man is the measure of all things.
Introduction TOP When Europeans came to the Americas they were considered outsiders but, in accordance with the Aboriginal view, were permitted to share in the land and its resources. Elders have told us that, in the eyes of the Creator, the Europeans as outsiders could not enjoy the same rights as the original inhabitants. Whatever rights the Europeans wanted had to be sought from those who were placed upon the land first by the Creator. It is a belief common to many Aboriginal societies that the Creator placed Aboriginal people upon this land first for a reason, and that, as the first ones on the land, they were placed in a special relationship to it. In the worldview of Aboriginal people, the Europeans were visitors and, as such, were bound to respect the obligations of that status. For Aboriginal peoples, the land was part of their identity as a people. The earth was their Mother, the animals were their spiritual kin and all were part of the greater whole, which was life. Their culture was grounded in nature. Time was marked by the changing seasons and the rising and setting of the sun, rather than by numbers, and their existence was marked by an acceptance of and respect for their natural surroundings and their place in the scheme of things. The thinking of Aboriginal peoples was cyclical, rather than linear like that of the Europeans. Everything was thought of in terms of its relation to the whole, not as individual bits of information to be compared to one another. Aboriginal philosophy was holistic, and did not lend itself readily to dichotomies or categories as did European philosophy. So, for Aboriginal people, their rights were—and still are—seen in broad, conceptual terms. The most fundamental of those rights is the right to their identity as Aboriginal people. Since that identity was derived largely from the land they used and occupied before the arrival of the Europeans, they believe they had—and still have—certain rights in regard to the land, including continuing habitation and use of the land, whether it be for hunting, fishing, trapping, gathering food and medicines, or for any other traditional pursuits. This right to identity also implies the further right to self-determination, for it is through self-determination that a people preserves their collective identity. The right to self-determination can take several forms. It includes, among many other things, the authority to retain one’s culture in the face of threatened assimilation, the right of a child to be raised in his or her own language and culture, and the right to choose between an Aboriginal and a non-Aboriginal way of life. This latter right is violated if the traditional economy of an Aboriginal group is disrupted severely or damaged by the encroachments of a civilization that exploits or abuses natural resources on a large scale, such as a hydro-electric project, a pipeline or a strip mine. Further, the right to self-determination implies the right to take charge of one’s own affairs so as to ensure effectively that Aboriginal identity and culture will be respected in the political sphere. These are the Aboriginal rights of the indigenous people of Canada. Like Aboriginal rights, treaty rights are also understood by Aboriginal peoples in broad, conceptual terms. Unlike Aboriginal rights, however, treaty rights are more susceptible to the restrictive interpretations of the federal and provincial governments. Governments have claimed that treaty rights are limited to written promises made to Aboriginal groups by the Crown in specific treaties. In return for these promises, First Nations in Manitoba are purported to have agreed to "yield up" the land they traditionally used and occupied, and to move to reserves in order to make room for the expanding white settlements. The signing of the post-Confederation numbered treaties in Manitoba was a solemn affair, resulting from negotiation through a bilateral, consensual process. Indian tribes in Manitoba had been using the formality of the treaty-making process for many generations prior to the arrival of the Europeans and, to those tribes, the solemnity of the occasion marked the new relationship. The representatives of the Crown were well aware of the importance of the process to the Indian tribes and, as some writers have pointed out, took advantage of that sense of importance. To a large extent, Indian tribes negotiated for what they could, but were faced with negotiators whose mandate was to obtain signatures upon the treaty documents by whatever means necessary. Their view of the importance of the treaty differed considerably from the Indians’. The European objectives were to exercise complete control over the land, and to make it safe for settlement and for the development of its resources. In negotiating the treaties, the newcomers sought to provide the minimum in benefits in return for peace and control of the land. Nevertheless, many provisions in the treaties were included at the insistence of the Aboriginal groups. Many verbal promises, not included in the written versions of the treaties, were made to reassure the Indian representatives about the exact nature of the agreements. The promises, both written and oral, were to be good "as long as the sun shines, the grass grows, and the rivers flow." These promises are just as important as the written words defining treaty rights. Aboriginal people consider the treaties to be agreements made between sovereign nations. Aboriginal signatories agreed to give up only their rights to certain tracts of land, not their right to govern their own lives and affairs. While Europeans considered the treaties as transfers of title to land, Aboriginal nations perceived them merely to be agreements to share the land, as they did with the animals and other groups. Aboriginal peoples perceived the treaties as agreements only to share the land because the concept of legal title to land, as the Europeans understood it, was foreign to their culture. Clearly, however, Aboriginal people did have a strong concept of territory—individual occupation of specific parcels of land was an acknowledged part of almost all Aboriginal societies. However, land was not something which an individual could divide, transfer, surrender, destroy or own to the exclusion of all others. The land was there to be shared, as it was the source of all life. Today, Aboriginal peoples believe their treaty rights have become a series of broken promises. Time and time again during our hearings, people spoke eloquently about their understanding of the treaties and their frustrations at the manner of their treatment. Aboriginal people in Manitoba firmly believe that despite, or perhaps more properly, because of the treaties they entered into with the Crown, they were to have been allowed to retain part of their land, to retain their identities, their cultures, their languages, their religions and their traditional ways of life, including their laws and their systems of government. Those things have been denied to them. Even the manner in which the reserve land was set aside for the various First Nation signatories has been a source of frustration. Instead of reserves being viewed by government as land for which Aboriginal people retain their original title, the government has persisted in the view that land was surrendered to the Crown, which then "gave it back" to Aboriginal people. Aboriginal people were to have been partners in the new arrangement, with an equal say in defining their ongoing relationship with the Crown. They have been denied that. The various promises made under treaties were explained to and understood by Indians in broad, conceptual terms, and were to include a commitment to the economic development of reserves and to the education of the members of their community, and a respect for the tribe’s traditional form of government. The treaties, according to the understanding of Aboriginal peoples, were arrangements between two groups who had agreed to share the land and respect each other’s autonomy. Aboriginal people wanted to choose and direct how Western influences would affect them, but they never got the chance. Today, the treaties are still important to Aboriginal peoples because they represent a state of affairs that was abrogated arbitrarily and unilaterally by one party: the government. That is why Aboriginal peoples insist that the Crown respect the "spirit" and "intent" of the treaties, and not just the precise written "terms." In the courts, in Parliament and in land claims negotiations, the messages from the non-Aboriginal side of the process have been mixed. In 1852 the Upper Canada Court of Queen’s Bench rejected the notion of Indian rights, arguing that "the common law is not part savage and part civilized."1 In 1964, in a Supreme Court of Canada decision dealing with the important issue of whether Indian hunting rights were nullified by the general provisions of the Migratory Birds Convention Act, the court was more intrigued by the issue of whether there had to be proof that the duck in question was wild rather than tame.2 With respect to the issue concerning the validity of hunting rights guaranteed by treaty, the court ruled those rights invalid in two sentences by relying upon the Court of Appeal’s earlier judgment in the case, in which Parliament was viewed as possessing the authority to breach treaties if it intentionally chose to do so. In the 1970s a remarkable shift in judicial attitudes began. The Supreme Court of Canada began to demonstrate its change in thinking when six of seven judges declared that Aboriginal title to land was recognized by the common law.3 The most dramatic example is a 1984 Supreme Court decision which affirmed an Indian band’s title to reserve land on the basis of the pre-contact Indian legal order.4 In a case the following year, the Supreme Court also held that it was no longer acceptable to be bound by the biases and prejudices of another era, and that "treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians...."5 These recent pronouncements from the Supreme Court are clearly inconsistent with the traditionally hostile judgments of the past. They have been followed by a number of other decisions over the past five years that have further expanded the importance to be given to Aboriginal and treaty rights at law. Nevertheless, many questions and uncertainties remain regarding the content of these rights, their effect on existing legislation and the scope of Crown obligations to Aboriginal people. If the courts have been unclear, then Parliament and non-Aboriginal political leaders have been equally so. The long-standing question as to the exact nature and extent of Aboriginal and treaty rights has yet to be resolved through legislation, or agreement, while legislation dealing adequately with the issue of Aboriginal self-government has been nearly nonexistent. The expectations raised by four First Ministers’ Conferences in the mid-1980s and the House of Commons Special Committee Report of 1983 on Indian self-government have yet to yield the promised and needed constitutional and legislative reforms. The proper method of land claims settlements, as well, has yet to be determined. In the Yukon and Northwest Territories, negotiations have been dragging on since 1973; in British Columbia they have barely begun; on the Prairies, agreements-in-principle to resolve outstanding treaty land entitlements either have not been reached or are yet to be implemented. In Manitoba a 1984 agreement-in-principle between treaty entitlement chiefs and the provincial and federal governments to resolve outstanding treaty land entitlements was never ratified by the federal government. The absence of clarity or significant initiatives on the part of both the federal and provincial governments has resulted in frustration, anger and conflict. This has cast a dark cloud over the relationship between Aboriginal people and government, not only in Manitoba but throughout Canada. As we will indicate in greater detail below, rectifying the historic injustices, while extending proper respect and substance to Aboriginal and treaty rights, is vital for the well-being of all Canadians. Clearly, restoring honour to the Crown, while rebuilding Aboriginal communities, is needed. TOP
Aboriginal-Crown Relations TOP The relationship between Aboriginal peoples and the newcomers has been of great importance to both sides since the earliest days of contact between European explorers and the original inhabitants of this land. Representatives of European monarchs arriving on this continent found Indian nations with highly sophisticated economies, governments, cultures, legal regimes, religions and trading relations. Recent evidence suggests that there were as many as eight million indigenous people throughout what is now Canada and the United States in the early 17th century, with approximately three million residing in what was to become Canada. The Indian nations of the eastern seaboard welcomed the newcomers, assisted them to survive in a foreign land and offered to share the resources of their territory with them. Formal treaties defining a system of peaceful co-existence and respect for each group’s separate identity were negotiated in the early 1600s. This pattern of utilizing treaties to determine the nature of the European-Aboriginal relationship was proposed by each side, as it reflected the approach previously used both in North America and in Europe. The British Crown adopted this practice (already implemented by the Dutch and other European nations at least as early as 1664) by negotiating the Two Row Wampum Treaty with the Iroquois Confederacy. At the core of this treaty was the concept of peaceful co-existence. The British were to travel on the river of life in their large ship containing their laws, religious beliefs, customs, traditions and ways of life. Travelling alongside, but separate in their canoe, were the Iroquois, who carried with them the Great Law of Peace and their traditions, customs, spiritual beliefs and way of life. Each nation would enjoy the bounty of the lands and waters but would continue to govern its own affairs as independent nations. Great Britain, for a time, did pursue a policy of respecting the land and harvesting rights, as well as the autonomy of Indian nations. Not only was this in keeping with emerging standards of international law, enunciated by Francisco de Vitoria, Bartolome de las Casas, Grotius and others, but it also reflected self-interest. Britain wished to maximize commercial trade with Indian nations, particularly regarding furs, which was fostered by developing a positive relationship. In addition, the numbers and military superiority of the Aboriginal inhabitants meant that peace and friendship were an astute policy to pursue. Furthermore, the British government was in competition with other Europeans, especially the French. Thus, Indian allies were vital to British ambitions. As a result, the treaty-making process, coupled with respect for Aboriginal land rights and sovereignty, quickly became the cornerstone of official British policy. Numerous treaties were negotiated with various Indian nations along the east coast throughout the 1700s, including several with the Micmac and Malecite nations of what has become Atlantic Canada. This policy was codified in a sense through the Royal Proclamation of October 7, 1763, which was promulgated after the British victory over France and the Treaty of Paris of 1763. The Royal Proclamation was designed to determine both the future of the newly acquired colonies of Quebec, Florida and Grenada, as well as relations with Indian nations. The Royal Proclamation officially declared that the Indian nations who remained within the borders of any of the British colonies were not to be "molested" in their possession of traditional territories. The 1763 Proclamation of King George III put it this way:
If the Indian nations chose to surrender any or all of their lands within the new and existing colonies, then this could occur by treaty, with the specific process described in the Proclamation. It is interesting to note that the major elements of the treaty process outlined by the Royal Proclamation (such as requiring a public meeting in the presence of Crown representatives and allowing only the Crown, rather than private individuals, to make treaties) are still reflected in the Indian Act surrender requirements and the general land claims process. Those Aboriginal people residing outside these colonies were to be left untouched by settlers and local colonial governments, according to the Proclamation. While much has transpired since 1763 in the Aboriginal-Crown relationship, the essential elements of the Royal Proclamation remain. The Proclamation has become one of the founding constitutional documents of Canada and has clear implications for Manitoba. It is appended as a schedule to the Constitution Act, 1982 and expressly referred to in section 25(a) as part of the Aboriginal rights shielded from any negative effects of the Charter of Rights and Freedoms. This treaty-making process, which the Proclamation enshrined, was used to acquire land for settlement throughout most of modern-day Ontario from the beginnings of Upper Canada until the Williams Treaty of 1923. (An adhesion to Treaty 9 dates even later.) Such treaty making was used in what became Manitoba, beginning with Lord Selkirk’s treaty in 1811 and followed by the numbered treaties, starting with Treaties 1 and 2 in 1871. However, treaty making for Aboriginal people was not started by the Royal Proclamation, for the evidence is clear that Aboriginal people were making treaties among themselves long before the arrival of the Europeans and for some time after their arrival, prior to the Proclamation. While some have argued that the terms of the Royal Proclamation of 1763 are limited to certain geographically defined areas of North America, and that the area formerly covered by the Crown grant to the Hudson’s Bay Company is not included, we think that such an interpretation misses the point. The Royal Proclamation did not create Aboriginal title and it is clear that it is not the only legal recognition of Aboriginal rights. Part of the importance of the Proclamation is the process which it identified as the means by which Aboriginal title was to be addressed. It was a clear recognition that the rights of Aboriginal peoples were to be "purchased" fairly through treaties and not simply to be ignored. Aboriginal title has been part of our common law since settlement. Imperial, colonial, federal and provincial governments have never attempted to legislatively define either Aboriginal title or Aboriginal rights. The Crown has never sought to expressly extinguish Aboriginal title. The one exception to this appears to be the case of the Metis, to whom 1.4 million acres were to be granted in exchange for their "Indian title" under the Manitoba Act, 1870. Neither the judiciary nor governments has delineated a clear perspective regarding the meaning and status to be attributed to the rights of the original owners of Manitoba. For this reason, uncertainty remains today as to the full extent of outstanding Aboriginal and treaty rights in this province. Two fundamentally different perspectives exist. For their part, Aboriginal people still believe that they have an obligation to protect and nurture the land and all living things. They regard themselves as stewards or caretakers of their traditional territory, with a continuing right to use the land and share in its bounty. They further believe that they have maintained the authority to govern their own affairs. Treaties are still seen by them as solemn agreements between sovereign nations, designed to confirm their Aboriginal rights and supplement them with express commitments from the Crown. In return, the Aboriginal nations agreed to share their land with the Crown for the benefit of its subjects, by allowing the Crown to make land available for settlement. Other lands were reserved for exclusive Aboriginal use under Aboriginal control. Federal and provincial governments, on the other hand, have tended to view the relationship in a rather different light. The Crown wished to acquire land free from Aboriginal title so that it could resell it to immigrants seeking a new start. The Crown wished to populate its new colonies rapidly and extensively. Governments believed that Aboriginal peoples would eventually disappear. They sought to foster this process through policies of assimilation. Governments clearly thought that Aboriginal rights would decline in importance, and the treaties in Ontario and the Prairies were designed to allow that transition to occur at an appropriate pace. The treaties themselves were drafted to reflect an absolute surrender of Aboriginal title to land, while contrary assurances of an ongoing, respectful relationship were being given by Crown negotiators. While the Crown’s representatives were making promises during treaty negotiations that Aboriginal people would not be disturbed in their way of life, the federal government was developing a policy designed to achieve the opposite. Over time, the federal and provincial governments came increasingly to the view that the treaties and Aboriginal rights were relics of the past that could be ignored with impunity. Once the governments had achieved title over the land, the treaties had no significance to them. What little significance the treaties did retain for the federal and provincial governments was largely a result of court decisions and the reluctant acceptance that they were still important in the eyes of Aboriginal people. However, the effect of the treaties was restricted as much as possible. The nation-to-nation relationship that had been the cornerstone of dealings between the Crown and Aboriginal peoples for three centuries was transformed thoroughly during the 20th century, after most of the Manitoba treaties had been signed. As we have discussed in our chapter on the history of the relationship between Aboriginal people and the justice system in Manitoba, much of the century which followed the signing of the treaties was marked by the cultural repression and impoverishment of Aboriginal people. Indian agents tightly controlled the economic and political affairs of Aboriginal communities. The process of reasserting sovereignty has been a slow and often painful one for Aboriginal people. Gradual gains such as enhanced civil rights were offset by setbacks such as the disastrous child welfare policies of the 1960s and 1970s. Ironically, it was a government policy document, advocating the extinguishment of rights and the assimilation of cultures, which provided the spark to reignite Aboriginal self-determination. The 1969 federal White Paper galvanized response and resulted in a new political cohesion of Indian groups. TOP
The Devolution of Indian Affairs TOP Another of the repercussions of the rejection of the White Paper was the acceleration of the removal of the individual Indian agents. Although Indian bands began evicting agents in 1965, the vast majority remained under the tight control of the local agents as the 1970s began. This changed rapidly as the Department of Indian Affairs withdrew its officials to district and regional offices, thereby allowing chiefs and councils to run their own meetings and set their own priorities. Bands began to establish their own civil services and to operate their own programs on reserves. The process of devolving control over the delivery of community services has continued over the past 20 years. It is extremely important to realize that local Indian governments have only been functioning with any level of authority for little more than two decades. TOP
The Calder Case and Land Claims TOP The White Paper of 1969 committed the federal government to respond to historic grievances based on a failure to fulfil treaty promises to land and on illegal losses of reserve land or band funds over the years. Dr. Lloyd Barber was appointed as the Indian Claims Commissioner and he quickly discovered that there were numerous outstanding claims involving a massive amount of land and money. The federal government responded by creating a branch within the Department of Indian Affairs to fund claimant groups in their attempts to document the historical basis of claims. Federal officials were appointed to negotiate resolution of the grievances. Assertion of rights based on Aboriginal title to land continued to be rejected by both federal and provincial governments until the Supreme Court of Canada delivered its judgment in Calder v. Attorney General of British Columbia, [1973] S.C.R. 313. This landmark case was brought by the Nishga of northern British Columbia, who argued that they had possessed Aboriginal title to their traditional territory since time immemorial and had never surrendered or lost their rights to the land. Six of the seven judges who examined these issues agreed that Aboriginal title was a valid legal concept recognized by Canadian common law. They were divided equally, however, as to whether colonial legislation in British Columbia had effectively extinguished the Aboriginal title of the Nishga. Mr. Justice Judson, on behalf of two others, concluded that this pre-Confederation legislation dealing with Crown land generally was sufficiently inconsistent with the continued existence of Aboriginal title so as to extinguish it. Mr. Justice Hall’s decision, concurred with by two others, disagreed, as he declared that Aboriginal title could be terminated only by legislation that explicitly stated this effect in clear and plain language. The seventh judge rejected the Nishga’s appeal on procedural grounds. Although the Nishga lost, the fact that six Supreme Court of Canada judges concluded that Aboriginal title still existed as part of the common law forced the federal government to develop a new position. Indian Affairs minister Jean Chretien announced a new federal policy in August of 1973, expressing a willingness to negotiate the settlement of Aboriginal title land claims, which it called "comprehensive claims," in northern Quebec, both territories and British Columbia. The existing policy of resolving treaty and reserve land claims was sustained under the label "specific claims." Southern Quebec and Atlantic Canada were placed in a third and undefined category, and were described incorrectly as entirely non-treaty areas. Further litigation over the balance of the decade helped clarify the continued existence of Aboriginal title for the Dene in the Mackenzie Valley despite Treaties 8 and 11,7 for the Cree in northern Quebec,8 and for the Inuit in the eastern Arctic.9 Litigation in Manitoba, sparked by hydro-electric development, helped to encourage the parties to ultimately negotiate the Northern Flood Agreement (NFA). Major claims began to be filed with the federal government almost immediately after it proclaimed its policy shift in 1973. Negotiations were commenced shortly thereafter, but only the impetus of massive resource development projects resulted in the conclusion and implementation of two major land claims settlements, through the James Bay and Northern Quebec Agreement of 1975 (and a small adhesion for the Naskapi through the Northeastern Quebec Agreement of 1978) and the Inuvialuit Agreement of 1984 in the Beaufort Sea region. Negotiations elsewhere have dragged on for years while many other Aboriginal groups wait in line for their claims even to be addressed, as the federal government restricted the number of claims under negotiation to six at any one time until September 1990. Eighteen claims are pending in British Columbia alone. The Aboriginal title claims process has been limited to First Nations and the Inuit, except in the Yukon and the Northwest Territories, where the Metis and non-status Indians are included. As a result, claims of Metis and unofficial Indian communities are not accepted, leaving the Metis in Manitoba without a negotiation process by which to pursue their land claims. In addition, the federal government is of the view that the land surrender treaties effectively extinguished Aboriginal title in Ontario and the Prairies, with the result that no comprehensive claims can be submitted by First Nations in these four provinces. The federal government also continues to refuse to address Aboriginal title claims in southern Quebec and in Atlantic Canada (except for Labrador).TOP
Constitutional Reform TOP Another dramatic initiative that affected Aboriginal people was Prime Minister Pierre Trudeau’s desire to patriate the Canadian Constitution, along with a "made-in-Canada" amending formula and an entrenched bill of rights. This venture came as response to the pledge of constitutional renewal made during the federal government’s campaign against sovereignty-association in the Quebec referendum of 1980. Aboriginal groups were very concerned about how this could violate the treaty commitments reached with the Crown and feared that Canadian control over the Constitution could result in further damage to their rights, or a repeal of federal responsibility altogether. On the other hand, Aboriginal organizations saw the negotiation of new portions of the Constitution as an excellent opportunity to protect their unique Aboriginal and treaty rights from attack by antagonistic federal or provincial governments in the future. At the same time, the possibility was created to achieve proper respect for these rights in the supreme law of the land, so as to overturn years of court decisions that had upheld legislative interference with hunting and fishing rights. After a coordinated initiative involving all Indian, Inuit and Metis national leaders, the federal cabinet and the Joint Parliamentary Committee agreed in January of 1981 to include a clause in the draft constitution that would recognize Aboriginal and treaty rights. This provision was dropped in November of that year at the insistence of several premiers, as part of the price of obtaining their support for a revised constitutional package. Although the affirmation of these historic rights was deleted, Trudeau replaced it with a clause requiring a constitutional conference to be convened by the prime minister, involving premiers, territorial leaders and representatives of the Indian, Inuit and Metis peoples. As a result of intense lobbying from Aboriginal people and thousands of non-Aboriginal Canadians, the first ministers back-pedalled somewhat and restored the Aboriginal and treaty rights provision, albeit in a watered-down form. The Charter of Rights and Freedoms, proclaimed on April 17, 1982, was a turning point in Canadian history in many ways. As a result of the Charter, limitations were imposed upon the power of Parliament and the provinces to pass laws within their jurisdictions. Our courts were invested for the first time with the authority to scrutinize legislation passed and otherwise valid to determine if the overriding rights of Canadians described within the Constitution Act, 1982 had been violated. The judiciary now had the obligation to strike down any law breaching a fundamental freedom that could not be justified as "a reasonable limit prescribed by law in a free and democratic society" by virtue of section 1 of the Charter. The position of Aboriginal people, both within Canadian law and Canadian society, was changed dramatically by the new Constitution. When the negotiation process was complete, the supreme law of the land included three provisions dealing with Aboriginal peoples. The most important of the three is section 35, which recognized and affirmed the "existing aboriginal and treaty rights of the aboriginal peoples of Canada." Under this provision, Aboriginal peoples are defined as including "the Indian, Inuit and Metis peoples." (section 35(2)) Section 35 is outside the Charter, and therefore is not subject to limitations as allowed by section 1 of the Charter. The second provision, included in the Charter, shields the unique rights and freedoms of the Aboriginal peoples from challenge under any of the other provisions of the Charter of Rights and Freedoms. Section 25 states:
The final provision (section 37) promised a First Ministers’ Conference on Aboriginal constitutional matters before April 17, 1983. Prime Minister Trudeau called that conference into session in early 1983 and consensus was reached on some matters. It was agreed that both sections 25 and 35 of the Constitution Act, 1982 would be amended to include the rights contained within past and future land claims settlements as treaty rights. Secondly, it was decided to amend section 35 to guarantee sexual equality among Aboriginal men and women in the enjoyment of these unique rights. It was accepted further that none of the provisions in the Constitution Acts of 1867 and 1982 that expressly referred to Aboriginal peoples should be amended at any time without first consulting with Aboriginal peoples through a First Ministers’ Conference. Since the first ministers and Aboriginal leaders could only articulate a long list of issues of mutual concern in a protocol, rather than provide a definition or identification of the scope of Aboriginal and treaty rights, they decided to meet on at least three more occasions. Amendments to the Constitution were passed by all provincial legislatures, except Quebec’s, and by the Parliament of Canada, with the effect that they were proclaimed in force in June 1984. Sections 25 and 35 were revised to extend similar treatment as treaties to both previous and future land claims agreements. A new provision was added to guarantee Aboriginal and treaty rights equally to male and female Aboriginal persons. Another section (section 35.1) requires the prime minister to convene a First Ministers’ Conference if amendments to sections 25, 35, 35.1 or 91(24) are ever under consideration in the future. The section 37 meeting process also was extended until April 17, 1987. First Ministers’ Conferences were held before the television cameras in 1984, 1985 and, finally, in 1987, resulting in a striking degree of national attention being devoted to Aboriginal issues. The focal point for discussion rapidly became the issue of the right of Aboriginal peoples to govern themselves, and the constitutional recognition of that right. The debate centred on whether the extension of this right should be subject to the complete control of both federal and provincial governments, or if the right simply should be stated within the Constitution and the elaboration of its implications be left to future negotiations. While some limited flexibility in positions was evident and several parties attempted to fashion a compromise, the chasm between the two dominant views was too broad to be bridged. Fundamentally, this reflected two deeply felt and divergent views of the Aboriginal-Crown relationship. Aboriginal people asserted that they have the inherent right to govern their own affairs and have never surrendered this right. Thus, the issue from their perspective relates solely to regaining acceptance by general society of the ability and authority of Aboriginal people to determine their own future. Implementing this acceptance then gives rise to discussions regarding the interrelationship of the federal, provincial and Aboriginal governments. The prime minister and most premiers took the position that Aboriginal people did not have any existing right to self-determination. They believed that Aboriginal people could obtain such a right only through the extension of delegated powers under Canadian legislation or by way of constitutional change. The excitement and hopes of Aboriginal people during the First Ministers’ Conferences have long since subsided. Since there was no agreement on an amendment on Aboriginal self-government, or regarding ongoing mechanisms for debating and adjudicating Aboriginal issues, the previous situation has largely returned, but with significant public support for Aboriginal positions. The federal government relies exclusively on direct negotiations to resolve claims. Negotiation is the only alternative to expensive litigation, which few Aboriginal groups can afford or desire, given its adversarial nature and their lack of faith in the legal system. While both a Special Parliamentary Committee on Indian Self-Government in 1983 and the Canadian Bar Association in 1988 recommended the establishment of new institutions to deal with the settlement of claims, improvements have yet to be implemented. The settlement process is protracted, legalistic and distanced from the claimants. TOP
The International Origins of Aboriginal and Treaty Rights TOP Introduction One of the primary issues with which Canadian society has to come to grips is the historical legacy of its acquisition of Aboriginal lands. We are not talking here about the questionability of the treaties, for that is quite another matter. The issue involves how Canadian and American legal systems have addressed the nature and form of the Aboriginal legal interest in the land now within Canada and the United States, and of the legal techniques used to assert dominion over lands which enjoyed some degree of legal protection in international law. The failure of the legal system to deal adequately with the issue is reflected in the following judicial statement:
The attitude which this reflects has prevailed for a considerable period of time and has led to a feeling of considerable distrust on the part of the Aboriginal community. The community is generally reluctant to call upon the courts to help it resolve some very serious legal issues with the Canadian government, but particularly where Aboriginal lands are concerned. Despite the desire of various governments to confine the question of Aboriginal issues to a domestic context, certain fundamental Aboriginal rights have been recognized in international law and practice since the 15th century. TOP
The Basic Features of International Law TOP International law, unlike municipal or domestic law, does not have a legislative body to promulgate binding principles. International law is limited further by the fact that there is no one tribunal with jurisdiction to resolve all international disputes. The role of the primary existing tribunal, the International Court of Justice, is restricted to resolving only those disputes jointly referred to it by recognized nation states. The existence and nature of an international rule of law is not always easy to determine in the absence of a legislative body. The accepted sources of international law are set out in the Statute of the International Court of Justice. In ascertaining the law in a given dispute, the court first looks to see if there is an applicable treaty (an international convention) between the parties. Where none exists, the court then looks to international custom, as evidenced by state practice. In order for a practice to be a binding custom, it must be both uniform and obligatory, rather than a matter of convenience. If the court is unable to apply an international treaty or custom, Article 38.1 provides for subsidiary means of determining "rules of law." These include reference to judicial decisions and the work of scholars. The decisions of international courts and tribunals are not binding except between the parties in respect of the particular case. The decisions of municipal courts (i.e., courts of each nation) also are not binding in international disputes. Rules of law derived from treaties take precedence over rules of law derived from custom, and general principles of domestic law are subordinate to both. Canadian courts can and do apply rules of international law, provided they do not conflict with statutes or some fundamental constitutional principle. In R. v. Sioui, [1990] 1 S.C.R 1025, the Supreme Court of Canada clearly reiterated prior statements that international law need not be referred to in order to resolve matters arising from Indian treaties. The existence and validity of an Indian treaty are not dependent upon its meeting the test of an international treaty cognizable at international law. However, that does not mean that international law is irrelevant where Aboriginal rights are concerned. On the contrary, we believe that international law has evolved over the years a number of principles which are useful when considering the contemporary Aboriginal situation in Canada and in concluding what is the most appropriate course of action to take in the future. TOP
The Roots of Aboriginal Rights in International Law TOP Aboriginal rights became an issue for Europeans in the 16th century with the Age of Discovery. Various European nations engaged in competition with each other to expand their influence throughout the world and to control world trade, justifying their drive to do so as part of their obligation to spread Christianity. The severity of the competition among nations naturally led to strained relations and sometimes to outright war among the various competitors, with the result that international "understandings" were developed in order to control the outbreak of hostilities and to enforce alliances. These understandings eventually evolved into a body of law in the form of principles of international or extraterritorial conduct deemed acceptable to "civilized" nations. The individuals most responsible for the development of this body of principles addressed their minds to the way that the "discoverers" were dealing with the indigenous people already in occupation of the territories which they "discovered." The "fathers" of contemporary international law were, thus, the "fathers" of Aboriginal rights theory. Aboriginal law originated, and is grasped best, as a branch of international law, with the basic concepts of modern doctrine being hammered out by Francisco de Vitoria, Bartolome de las Casas and other Spanish theological jurists of the 16th and 17th centuries. In a 16th century treatise, De Indis et de Jure Belli Reflectiones, Vitoria outlined the basic concepts of Aboriginal rights. At the University of Salamanca, Vitoria lectured extensively on the subject of the Aboriginal people of North America. He dealt with the Aboriginal population being "discovered" by the Spanish adventurers, and the respective rights and duties of each. Reports of military abuses, enslavement and massacres of these newly discovered people had reached Spain. There were heated debates about the matter, resulting in both the Crown of Spain and the Papacy issuing a series of cedulas and "papal bulls" decrying such abuses and attempting to ensure that certain basic rights were recognized. These measures proved ineffective, however, because the central authorities were unable to control the outposts in the New World, and were unwilling to impose trade embargoes and forego the riches of exploitation. Although Vitoria’s influence on international law is derived primarily from his impact on later scholars, he is recognized as one of the most important thinkers of his time, and his work had a measurable influence on the policies and attitudes of those in power. In his concept of the law of nations, Vitoria asserted that all people had certain inherent rights, including possession of a spirit or soul and the capacity for salvation. According to Vitoria, Indians could not be deprived of their possessions unless the Spaniards could advance a just cause for doing so. Simply stating that Indians were not Christians did not suffice, nor did stating that Indians were of unsound mind. Vitoria also dealt with the title to land being advanced by the Spaniards. He unequivocally rejected the concept of basing title on the status of the Spanish emperor as the "Lord of the World." He also stated that title could not be based merely on the Indians’ rejection of the supremacy of the Pope. With reference to title based on claims that Spain was the first European nation to "discover" the New World, Vitoria dismissed that proposition outright, saying the land "discovered" already had an owner from a public and private point of view: the Indians. The most that discovery could do was to grant priority to the discovering state vis-a-vis other potential colonizers in pursuing trade with or land purchases from the indigenous nation. Likewise, papal grants could not substantiate title, but merely allocate priority rights among Catholic nations. In Reflectiones, Vitoria also outlined the nature of what constituted legitimate contact with the Indian nations. If the Indians were hostile after the Spaniards had demonstrated their "friendly" intentions, only then were the Spaniards legitimately allowed to use force, and even then it had to be measured to inflict the least amount of damage. Vitoria concluded this work on a practical note, stating that commerce with the Indians was permitted, and that the Spanish Crown was bound by law and expediency to maintain its administration of the lands in question, as there were already many Aboriginal converts. The Spanish Crown accepted the validity of the principles articulated by Vitoria, although it perverted their intent through devising the requirimientos, in which the king’s offer of friendship was read aloud in Spanish in a deserted locale. The failure of the Indians to accept the offer authorized the military to attack. One century later, Hugo Grotius, a Dutch scholar much influenced by Vitoria, published a treatise on Aboriginal rights entitled De Jure Praedae Commentarius. Grotius adopted many of Vitoria’s concepts and beliefs. Expanding on Vitoria’s belief that the Spaniards were entitled by the law of nations to travel and reside among the Indians, Grotius stated that the Spaniards would have just grounds for waging war with the Indians if they were prevented by the latter from carrying on the practice of commerce or conversion. Grotius, however, agreed with Vitoria’s belief that Indians could not be deprived of their property or possessions unless there was just cause, and that mere paganism did not constitute a just cause. Grotius also agreed that the Indians should be converted only through peaceful means and that any Indians enslaved under the pretext of conversion should be released. Grotius further reiterated Vitoria’s belief that the emperor did not have the right to convert the new provinces to his own use and that any pretext used in favour of such a practice was unjust. The principles enunciated a century earlier in regard to Spain’s dealings in the New World were accepted by Grotius, and he seems simply to have applied them specifically to matters of Dutch interest. Samuel Pufendorf, a contemporary of Grotius, criticized both Grotius and Vitoria in his renowned work, De Jure Naturae et Gentium. The Indians, Pufendorf argued, were under no obligation to receive visiting foreigners, as was the case with other nations. As the "property holders," the Indians had the right to consider and determine the purpose and length of the visit, as well as the number of visitors. Even when the Indians granted the visitors certain trade and commercial privileges, they also had the right to revoke such privileges. It was untenable to suggest, Pufendorf argued, that the Indians were forced to welcome such visitors, especially when to do so would be at their own peril. The work of these three scholars, the founding fathers of international law, is significant because all three recognized the importance and existence of certain fundamental Aboriginal rights in international law. Their views were largely adopted, albeit with several important modifications, by Emmerich Vattel, writing in the mid-18th century. It is his description of Aboriginal rights to land and sovereignty that became influential among American jurists in the following century. TOP
The Use of Doctrines of International Law TOP Since the beginning of the Age of Discovery, European states have engaged relentlessly in the process of divesting indigenous peoples of their lands, and have sought to justify and legitimate this practice through the use of the doctrines of discovery, occupation, adverse possession, conquest and cession. On the whole, domestic courts have either ignored or generally misapplied and misinterpreted these doctrines in their discussions of "Aboriginal title," thereby upholding the status quo of Aboriginal dispossession. The starting point in determining what rights Aboriginal people had at international law when they first were in contact with Europeans requires an examination of the legal provisions applicable to those nations which asserted authority over North America after contact. We will examine in turn each of the rationales for European claims to sovereignty and underlying title to the discovered territories. The Doctrine of Discovery The doctrine of discovery has been—and still is—rigorously advanced by various authors, jurists, legal scholars, nation states and domestic courts as the foundation upon which English, Canadian or American sovereignty in North America is based. The basic premise is that the first state to "discover" an uninhabited region with no other claims to it automatically acquires territorial sovereignty. Originally, the doctrine was limited to terra nullius—literally, a barren and deserted area—as reflected by the noted English scholar of the common law, Blackstone, writing in his Commentaries. The concept of terra nullius was expanded later, without justification, to include any area devoid of "civilized" society. In order to reflect colonial desires, the New World was said by some courts to fall within this expanded definition. The traditional doctrine of discovery has never been recognized as vesting a valid claim or title to a "discovered" territory. Since Vitoria’s vehement rejection of the doctrine in the 16th century, such a claim has been seen only as establishing an initial and incomplete title to the territory in question. This traditional interpretation has been ratified and affirmed in decisions from international courts in this century.11 While there is some debate among academics about this claim’s validity,12 the dominant view clearly is in favour of the traditional elaboration of this doctrine.13 Although the doctrine of discovery has been advanced occasionally by European powers since the "discovery" of the New World, such a claim was based more upon expediency than international law. The validity of the claim is dependent upon the status of the territory as terra nullius—an uninhabited land. Because Indians already occupied the land at the arrival of the Europeans, Vitoria unequivocally rejected such a title when it was asserted in the New World. Although there were many attempts to found claims based on discovery, the doctrine, by itself, was not considered sufficient to establish a valid claim, and does not appear to have been accepted officially by the competing states themselves, unless the discoverer was able to demonstrate an actual and effective governmental presence. In Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823), however, the United States Supreme Court applied the doctrine of discovery in order to justify American sovereignty over the land included in what is now the United States of America. The court held that:
When one considers both the international legal reality of the time and state practice, this decision appears to be more an effort to justify the taking of Indian territory that had already occurred than a serious analysis and application of the principles demanded by international law. Quite simply, the concept that Aboriginal inhabitants could only alienate their interest in the land to the "discoverer" was a legal fiction, because that concept did not originally exist in international law. In the Island of Palmas case (1928), 2 R.I.A.A. 829, the doctrine of discovery, as a means to justify the taking of Aboriginal lands, was considered and rejected definitively in just such a situation by the Permanent Court of Arbitration. The Doctrine of Occupation It has been argued by some that if discovery was seen to vest only an imperfect title, then discovery plus occupation completed the claim. There was, however, a traditional requirement that the land so discovered and occupied had to be a terra nullius. At one time, an area devoid of "civilized" society was alleged by some scholars to fall within the scope of such a requirement.14 The more accurate historical interpretation, which is reflected by the modern jurisprudence in international law, precludes the requirement’s application to any region with an indigenous population that is organized socially and politically. According to the Island of Palmas case, a claim based on discovery was incomplete until accompanied by "the effective occupation of the region claimed to be discovered." The term "effective occupation" incorporates the notion of "uninterrupted and permanent possession." Based on such a rule and interpretation, it would appear that the only ones capable of successfully advancing a claim based on discovery and occupation may be the Aboriginal peoples themselves, because they are the ones who could argue best that they first discovered and occupied the vacant territory many thousands of years ago. There was much debate about the definition of terra nullius for some time. Although the term was commonly accepted as meaning "uninhabited," some decisions have held that certain tribal lands could be said to fall within the scope of "uninhabited" if the peoples of the area exhibited an unwillingness to exploit the land in a "civilized" fashion. Such decisions, like many of the European policies of dealing with indigenous peoples, were largely the result of expediency and ethnocentrism. The present state of international law, as expressed by the International Court of Justice in the Western Sahara Case, precludes a region from being termed "uninhabited" if nomadic or resident tribes with a degree of social and political organization are present in the area. The issue then becomes, in individual cases, whether a specific indigenous group meets the test by exhibiting a sufficient degree of internal organization to be recognized as a distinct society, so as to effectively occupy the land and administer it as its own.15 It appears from the Canadian case law that probably every Aboriginal group would meet this test. The standard is not similarity to European civilization, and no particular level of "sophistication" is required.16 International law merely requires that the society was organized sufficiently to meet the needs of its members and was recognizable by others as a legal entity that inhabited the territory with a settled system of government. This test has been articulated by one of the leading scholars of the 20th century on this subject:
It should be noted that the colonizing nations themselves applied this test in the 18th and 19th centuries, with the Indian treaties demonstrating its practical application. The Western Sahara Case’s adoption of it in 1975 indicates that it reflects current international law. This test, however, should not be confused with international law requirements established for recognition as a nation state, which include additional criteria. The Doctrine of Adverse Possession The doctrine of adverse possession has frequently been linked to the above two doctrines to consolidate a valid claim to territory. Adverse possession basically posits that you can acquire title to part of another state’s land if you openly occupy it for an extended period of time and the original owner acquiesces to your presence. In order for such a claim to be valid, there must be a de facto exercise of sovereignty which is peaceful and unchallenged. This doctrine is similar to one that exists within the Canadian domestic law by virtue of provincial and territorial legislation (the relevant Limitations Act, which establishes a 10- or 20-year rule among private parties and 60 years versus the Crown) or through reception of English law (regarding federal Crown land). It would take little effort to discover in Canadian or Manitoban history sufficient examples of Aboriginal resistance to European occupation of the land to refute the application of this doctrine. Significant European occupation of lands in Manitoba did not occur until the Selkirk Settlement of 1811. That settlement came about as a direct result of Aboriginal consent being negotiated with Indian Chief Peguis by Lord Selkirk prior to the arrival and occupation of the land by the European settlers. The Hudson’s Bay Company, which constituted the only significant European presence prior to that era, acknowledged in its practices the Indian sovereignty in the territory, and deliberately did not interfere with Indian control over their territory. In fact, various instructions sent to the trading post managers in North America by the senior officials of the company always emphasized the importance of not interfering in the internal affairs of the Indians, and in ensuring that wherever trading posts were established, the "Indian title" was purchased. When the company transferred its interest in the territory to Canada, it specifically required that the new Dominion negotiate land surrenders with the Indians, and in 1872 the Canadian government began to do so. Those earlier negotiations between the company and the Indians, as well as the later treaties between the Dominion and the First Nations, enabled the land to be settled by Europeans with Indian consent, as the latter agreed to share their territory. To the extent that they reflect only a surrender of exclusive Indian title to much of the land, the treaties also amount to a confirmation of the Indian right to retain all other aspects of their Aboriginal title (i.e., their "other" Aboriginal rights), since only the land rights were surrendered. What is clear, however, is that Canadian sovereignty in western Canada is dependent to a large degree upon the validity of the treaties in those areas covered by them. The Doctrine of Conquest With respect to its traditional interpretation, the doctrine of conquest allowed using force or waging war only if a nation’s security or rights were threatened. Under traditional international law, a country was no more justified in exploiting another through force than was a private individual. Conquest gave the victorious nation the full right to colonize the vanquished nation and change its legal regime. These rights usually were described in the peace treaty that ended the war. The doctrine of conquest only operated, however, if the conquered territory actually was annexed and possessed by the conqueror. In terms of the indigenous lands in North America, these criteria normally were not met as no state of war was declared, although hostilities were not infrequent.18 The present interpretation of the doctrine of conquest was outlined by the Permanent Court of International Justice in the Status of Eastern Greenland Case (1933), 3 W.C.R. 148 at 171. According to this decision:
The doctrine of conquest frequently has been confused with the doctrine of discovery. Both are also the cause of further confusion, as they have international and domestic law purposes. At international law, conquest can cause the vanquished to lose sovereignty when the conqueror chooses to annex part or all of the territory of the loser. As has been indicated already, discovery per se can justify only the acquisition of sovereignty over uninhabited territories, and even then mere discovery without actual occupation is insufficient. These two doctrines are also used for an entirely different purpose: determining what law comes to be applied within the newly acquired territory as opposed to the international law standards governing the legitimacy of the process of acquisition itself. The common law distinguishes among settled, ceded and conquered colonies for the purposes of defining precisely when and on what terms the common law becomes the basic foundational law of the colony. This function is embraced within the English doctrine of reception of laws. It is quite possible, therefore, for a territory to be treated as being acquired at international law by conquest or cession (treaty), and then for the common law to be applied on the basis that the land is treated as a settled colony. Canada, in fact, is treated largely as a settled colony under the reception of laws doctrine, with the common law being "received" by each colony as it stood on the date the first local colonial statute was passed. The sole example of using the conquest theory for domestic purposes relates to the colony of New France, in which King George III imposed the common law through the Royal Proclamation of 1763. French civil law was restored in non-criminal matters through the Quebec Act of 1774. It is clear from our history that conquest was rarely, if ever, relevant in the acquisition of sovereignty over Aboriginal peoples and title to their lands. While this was argued forcefully by the Province of Nova Scotia and a variety of other governments in the Simon case, the Supreme Court of Canada decisively rejected its application in relation to the Micmac treaties of 1725 and 1752. The court further stated in R. v. Simon, [1985] 2 S.C.R. 387 that the conquest doctrine could apply in Canada only if a declaration of war had been proclaimed previously by the Crown, and there was no evidence of this ever occurring in Aboriginal-Crown relations. The Doctrine of Cession From the discussion thus far, it would appear that the consent of indigenous peoples is a necessary precondition to the legitimate acquisition of their territory, except where war has been officially declared and the conquest doctrine applies. The signing of valid treaties would fulfil the requirement for consent but, as mentioned elsewhere, the exact legal nature and effect of the Indian treaties are plagued by uncertainty. In some instances, Aboriginal groups voluntarily surrendered their Aboriginal title, but in other instances fraud, undue influence and misunderstanding would seem to invalidate the arrangement. The history of Indian treaties is filled with injustice and dishonesty, if not in the negotiations themselves, then certainly in the implementation and interpretation of the treaties. To begin with, the Indians’ understanding of the treaties rarely coincided with that of the Europeans. Indian people generally believed that they were only signing an arrangement to share the land with the newcomers, not, as some government officials later asserted, that they were agreeing to an abject surrender of their land and sovereignty. To the Indians, the treaties were intended to ensure that all people had access to the traditional territory of the Indian nations. This meant to them that they would continue to use their land as before and that mutually exclusive uses would not occur on a large scale. Clearly, they could not know or realize that such treaties would be relied upon later to exclude them from areas they had inhabited traditionally or to restrict them to the small parcels set aside as their reserves. If they had been told that that was to be the case, there is much doubt that they ever would have agreed. In fact, there is considerable evidence that many of the assurances given during the treaty negotiations were deliberately ignored by governments. The Indian nations of Manitoba were told that the various treaties confirmed their continued rights to use the land as they always had and that the Crown would guarantee this for as long as the lands and waters existed. Including guarantees of their hunting and fishing rights demonstrated that their traditional economies were to be protected. This required their ability to use their traditional territory. The precise legal nature and effect of Indian treaties in North America are uncertain under international law, but the validity of many of the treaties could be easily questioned and rendered uncertain at common law, in light of both the questionable tactics used by the Crown’s representatives in inducing Aboriginal groups to sign and the failure of the Crown to honour its obligations.TOP
The Application of International Law to Aboriginal Peoples in Canada TOP When Europeans first came here, their main objective was commerce. When France and England engaged in their fierce competition for the exploitation of Canada for its furs, Aboriginal people were enlisted in the service of one side or the other, as they played a vital role as military allies and essential trading partners. Early European settlements in Canada were insignificant in size until the late 1700s and almost nonexistent in Manitoba until well into the 19th century. Their precarious and vulnerable position in a harsh, unknown country necessitated the cultivation of friendly relations with the Aboriginal people. As the fur trade became larger and colonists undertook farming, these settlements began to expand in size and in numbers. Relations between the two groups began to change. Exploitation of the natural resources of the country for economic gain eventually evolved into a desire to gain total dominion. The transformation in the relationship between settlers and Aboriginal people accelerated first with the defeat of France by England and then through the arrival in eastern Canada of thousands of United Empire Loyalists fleeing the United States after the American Revolution. Britain needed large tracts of land to accommodate the new arrivals and also needed Indian allies to oppose American ambitions for expansion. This necessitated a policy of continuing to cultivate friendly relations with Indian nations and the focussing of this policy on western portions of what later became central Ontario, while acquiring land by treaty in southeastern Ontario for settlers. The Aboriginal peoples in northern and further western regions (from Lake Huron to the Pacific Ocean) became the new suppliers of furs and trading partners. This relationship in the West, and particularly in Manitoba, began to change in the 19th century. First came Lord Selkirk’s desire to establish a new colony for British immigrants in 1811. This objective was tolerated by the Indian nations because it did not disrupt the fur trade significantly and did not involve much of their territory. The desire for a lumber industry later sparked Imperial interest in acquiring title to the remainder of the Great Lakes area in 1850, and the Hudson’s Bay Company purchased portions of Vancouver Island during the next few years. After its creation in 1867, the new government of Canada sought to assert its dominion over a vast territory of what is now western Ontario and the Prairies. It turned to the treaty process to obtain ready access to Indian lands. For the Metis, the government, through the Manitoba Act, 1870, attempted to extinguish title in exchange for promises of individual land grants. The Indian leaders of Manitoba were not told that the Crown intended to restrict them to reserves while the balance of their traditional territory was to be allocated to benefit the newcomers. Instead, Alexander Morris, the Crown representative, offered reassurances that life would remain largely unchanged. Yet, within a few years, by the mid-1870s, the Crown had established what it needed—a written record of a passive conveyance of land that would reflect the "truth" to the public, while the oral version of the negotiations would be remembered only by the Indian nations. At the same time, the federal and Manitoba governments were passing general land legislation that took no cognizance of the presence of Aboriginal peoples. The new federal government of Sir John A. Macdonald followed a policy of largely ignoring the special status of Aboriginal peoples after the treaties were signed. Assimilation into the dominant society was the agenda of the day, with little recognition given to the assurances made during treaty negotiations. Provincial legislation and regulations were used extensively to facilitate the sale of land rights belonging to Metis children, who were the sole recipients of those rights under section 31 of the Manitoba Act, 1870. Proper respect for the principles of international law by Canadian governments would have protected Aboriginal people from the treatment they received during the treaty-making era and subsequently. The colonization of the "New World" essentially involved the assertion of territorial and jurisdictional sovereignty by the European governments. In order for each one to legitimate its claims in the eyes of its European competitors, it was necessary for the colonizer to demonstrate a valid legal claim or title to the territory in question. In order to do so, however, reliance had to be placed on international law, yet that law contained principles concerning Aboriginal people which made it clear that the Aboriginal interest in the land could not be ignored. The manner in which legal title was asserted as against the Aboriginal people in subsequent domestic court decisions is clouded by the obvious lack of attention to those principles. Thus, the traditional international law doctrines of discovery, occupation, adverse possession, conquest and cession bore little resemblance to the way in which they came to be applied in American, English and Canadian case law. The most critical redefinition of international law by the judiciary occurred in its use of the doctrine of discovery to justify European claims. The Fiction of Discovery in Canadian and American Law As indicated earlier, the United States Supreme Court viewed title to all the land in the New World as being rooted in the doctrine of discovery. This doctrine, according to Chief Justice Marshall, acted as an ordering principle for the European colonization of North America.19 He asserted that it essentially held that the "discovering" nation acquired the sole right before all other European nations to extinguish Indian title to the soil and to establish settlements on it. The doctrine of discovery, he felt, also served to define the new relationship between the colonists and the indigenous populations. The Aboriginal people, Marshall reasoned, still had the right to occupy the soil, but their general powers of alienation had become restricted as the "discovering" nation had gained the "underlying" title to the land. In addition, European territorial sovereignty expanded to accommodate this new reality. The Indians became enveloped within this new European territory, and subject to European sovereignty. It is as though a blanket of European title was cast over the land, covering all those upon whom it fell. The Europeans had acquired the right to extinguish Indian title however they pleased, and this principle was said to be unquestionable. There was, however, literally no basis in international law for the assertion of such a principle. Marshall’s use of the discovery doctrine was clearly inconsistent with the traditional doctrines of territorial acquisition under international law. Nevertheless, it was affirmed by various English decisions, and tacitly accepted by leading Canadian cases such as St. Catherine’s Milling & Lumber Co. v. R. (1888), 14 A.C. 46 (P.C.) and Calder. Like a thread, it runs through Canadian jurisprudence and is now the accepted justification for the expropriation of the underlying title to Aboriginal lands in both the United States and Canada. Marshall’s legal fiction, enunciated through several landmark decisions—Johnson v. M’Intosh; Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); and Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)—was never meant to explain the historic or cultural reality involved in the European expropriation of the New World. His aim was to ratify what had been done and to forge a new compromise that would give at least some recognition to the rights of First Nations while not challenging the foundations of a new country. While his undue concern for expediency rather than justice may be criticized, his court is no more deserving of reproach than the later courts that affirmed him. It can be said that at least he reflected an age in which slavery was legal, women had few rights, the franchise was limited and overt racism was common. TOP
Other Rationales Supporting Colonization TOP The exact nature of the legal status of Aboriginal peoples in relation to the colonizing European powers has yet to be resolved in international law. Although this has been a legitimate concern of international law since its advent, conflicting notions of "sovereignty" and "dependency" have clouded the issue. International law has not remained constant over the years. Instead, principles have often been revamped to reflect prevailing attitudes and the colonial ambitions of European powers. The movement toward decolonization after World War II has sparked a renewed concern to reconsider the content of international law. Sovereignty Although the concept of sovereignty has different meanings and is prone to ambiguity, its most common application in the realm of international, as opposed to domestic, law is derived by linking the two notions of "independence" and "statehood." Since the state is the fundamental unit of international law, a fully sovereign state is an independent one. With respect to international considerations, this independence can exist only as a matter of law, such that a state is capable of creating a voluntary position of dependence through its treaty-making powers. Thus, under international law, treaty making is a consensual process by which the respective rights and status of each nation are altered, with the sovereignty of each being unaffected unless the matter is addressed specifically within the treaty. Bilateral international treaties entered into by Britain, like treaties in general, include two major types:
The 1707 Act of Union between Scotland and England is an example of the first type of treaty. Under this treaty, both countries are said to enjoy "fundamental and essential conditions," and in all other respects the constitutional status of England and Scotland has merged, with the latter retaining its civil law regime. By contrast, Wales and Ireland were said to have been "conquered," and have been subject traditionally to parliamentary control without the benefit of a treaty to provide basic constitutional limits. The Migratory Birds Convention between Mexico, the U.S.A. and Great Britain (on behalf of Canada) is a variation of this form of treaty. The use of the second type of treaty reflects an ancient principle of the law of nations. A leading 18th century jurist, Emmerich Vattel, has described such a treaty as one in which sovereign states unite in an unequal alliance. In order to provide for its safety, the weaker state places itself under the protection of the stronger and agrees in return to perform services to obtain that protection. In terms of the law of nations, the weaker state is still regarded as sovereign. In Worcester v. Georgia, the United States Supreme Court adopted Vattel’s interpretation of such treaties and applied it to describe the relations between the First Nations of America and the United States, in light of a distinction drawn one year earlier in Cherokee Nation v. Georgia. In that case, the court maintained that there was a cardinal difference between the Indian treaties and treaties involving other nations, because the Indians and the United States resided within the same boundaries. Although the First Nations were acknowledged to have the unquestionable right to occupy the lands in their possession, they were characterized in Worcester as "domestic dependent nations," rather than as foreign ones. They were declared to have lost their independence simply by virtue of the presence and numerical superiority of the colonizers. Nevertheless, the First Nations retained internal or residual sovereignty. This approach certainly ran counter to the prevailing principles of international law established earlier by Vitoria, Grotius and Pufendorf. Treaties Although the existence of treaties between Aboriginal peoples and Europeans is itself a compelling indication that Aboriginal peoples once were sovereign, the only things widely accepted about their legal status are that the treaties create binding legal obligations between the parties and that certain rules of construction favourable to the Aboriginal party apply in their interpretation. Mr. Justice Lamer (as he was then) delivered a unanimous decision of the Supreme Court of Canada in which he declared that the Huron Nation was an independent sovereign state when it negotiated a treaty with the British Crown’s representative in 1760. (R. v. Sioui, [1990] 1 S.C.R. 1025) The court implied that a similar status existed for all Indian nations. In terms of international law, the word "treaty" is defined as "an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."20 In the Cayuga Indians Case (1926), 6 R.I.A.A. 173, a tribunal of the International Court of Justice held that the treaties in question did not bind the federal government. Instead, they constituted a contract between the State of New York and the Cayugas, with the United States being free from liability should the State of New York fail to perform its promises. In the Island of Palmas case the Permanent Court of Arbitration disposed of the matter in similar fashion, as did the courts of England in the relatively recent case of R. v. The Secretary of State for Foreign and Commonwealth Affairs, Ex parte: The Indian Association of Alberta, Union of New Brunswick Indians, Union of Nova Scotia Indians, [1981] 4 C.L.N.R. 86 (Eng. C.A.). Despite the pronouncements of these courts, there has been persuasive and strong resistance to this interpretation. The legal status of a treaty between a European state and a non-European one has been the source of much controversy in international legal circles, particularly since World War II. With respect to treaties between England and indigenous peoples, the facts of each case determine whether the treaty extinguished the independence of the indigenous nation, or created rights and obligations between the two signatories, recognizable at international law. By contrast, the idea that such treaties could create international legal relations and rights has been viewed as undesirable by Canadian and British courts (e.g., St. Catherine’s Milling and Simon). This view had been articulated earlier, in an 1837 report on Aboriginal peoples by a Select Committee of the British House of Commons on Aborigines. The committee had rationalized its conclusion on the basis of the often disparate bargaining powers of each party. In 1832, the Marshall court of the United States, in Worcester v. Georgia, gave credence to the international aspect of Indian treaties by stating that the use of the words "nation" and "treaty" by the Crown and later by the United States government, with respect to the American-Indian dealings, was intentional and, to a certain extent, placed the Indians in a similar category as the signatories of other American international treaties. This position was echoed in a judgment by the Privy Council. In Re Southern Rhodesia, [1919] A.C. 211, it was held that the British government’s repeated reference to an African king’s sovereignty over his kingdom automatically made him sovereign in the eyes of international law. There is no clear consensus on whether treaties with indigenous peoples constitute treaties in international law. The view that would allow for the greatest fairness and equity in each case is the one that most closely captures the historical, sociological and legal intentions of both parties in making the treaty. Guardianship The concept of guardianship is the product of the ethnocentric assumption that European civilization is superior to the civilizations of indigenous peoples. The concept of sovereignty normally implicit in the treaty-making process clearly was undermined by the European belief in the existence of a measurable distinction between the "civilized" and the "uncivilized" nations of the world. The application of this belief led to indigenous peoples being treated as "children" or wards of the state, rather than as sovereign nations. The European adoption of a patriarchal role was justified glibly by their perceived need for Europeans to look after the protection and welfare of this "unfortunate race." The doctrine of guardianship dates back to Vitoria, who paradoxically premised his theory of Aboriginal rights in part on the belief that the newly "discovered" Indians were less mature and intelligent than their advanced and learned "discoverers." To avoid dire consequences, the Indian people needed to be protected from abuses by the "superior" European powers. This attitude was mirrored by zealous missionaries who sought to rescue the Indian from the grasp of "savagery" and "paganism." Over the course of time, the concept of guardianship became official colonial policy in the New World, and became an accepted theory in international law by Europeans in the late 19th century to justify their wholesale colonization of most of the world. Despite the professed positive aims of this doctrine, the inescapable conclusion is that it worked to the severe disadvantage of indigenous peoples. The concept of guardianship was used to justify the destruction of Aboriginal cultural institutions, and enabled the colonists to deny the intrinsic worth and validity of anything Aboriginal. Aboriginal Nationhood Status Today In the realm of classic international law, indigenous peoples were designated as the objects, rather than the subjects, of international law. Although only nation states recognized by Europeans traditionally have been afforded a legal personality in the international arena, the exact legal status of indigenous peoples has yet to be resolved. From time to time the question arises as to whether indigenous people ever have enjoyed or still enjoy aspects of sovereignty recognized at international law. The development of international law over the years clearly suggests that the question could be resolved in their favour. In Article 1 of the Montevideo Convention (1933), the criteria for internationally recognized statehood are said to be:
Aboriginal peoples also have been pointing with greater frequency over the past 20 years to other important, modern international conventions. The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights both state in Article 1 that "[a]ll peoples have the right of self-determination." The Charter of the United Nations also refers in Article 1(2) to "respect for the principle of equal rights and self-determination of peoples" as one of its primary purposes. Canada is a signatory to all three documents and, therefore, is required by international law to adhere to their terms. Numerous other resolutions of the U.N. contain similar language, although the precise scope of the term "peoples" is not defined. Aboriginal groups in the United States and Canada, in their bid for the recognition of their right to self-determination, frequently have emphasized the relevance of these international instruments to their situation. They have asserted that their right under international law to cede various aspects of their sovereignty to another state was never exercised insofar as Canada was concerned. International law has been advancing very rapidly over the past decade in addressing the specific concerns of indigenous peoples who do not yet form recognized nation states. The International Labour Organization (ILO) recently overhauled its Indigenous and Tribal Populations Convention No. 107 and Recommendation No. 104 from 1957. Convention No. 169 was passed by the ILO in June 1989 to remove the paternalistic language of its predecessor and to expand the borders of indigenous rights that it recognizes and seeks to advance. This convention now has come into force as an international standard, although Canada has yet to decide whether it will ratify Convention No. 169. The convention recognizes indigenous rights to land and to establish unique institutions to protect and promote economic, social, cultural and legal advancement. The issue of ratification of this convention should be explored by the federal and provincial governments in consultation with Aboriginal people, without delay. The U.N. Human Rights Commission established a Working Group on Indigenous Populations in 1982. That group has been meeting almost every summer to consider the need for further international law standards. Currently, it is circulating the second draft of a declaration on the rights of indigenous peoples for comment by member states and indigenous organizations. The working group intends to propose a declaration for adoption by the U.N. General Assembly in the near future. The Organization of American States, of which Canada is now a full member, is drafting a declaration specific to the Aboriginal peoples of the Americas, which it hopes to conclude next year in recognition of the 500th anniversary of contact. At present, indigenous peoples throughout the world are attempting to rectify the imbalance of the past. Given the evolving recognition of their unique position within the historical and international context, it is clearly conceivable that their attempts will prove successful. TOP
Conclusion TOP If the status of indigenous peoples under international law from the early 1800s has been unclear until recently, it must be remembered that Europeans were responsible for the content and direction of that law. It also must be realized that domestic courts have misinterpreted and misapplied the principles of international law. Where, then, does all this lead us? In our opinion, it points inexorably to the conclusion that Aboriginal people have not been dealt with fairly in the manner by which their lands have been taken from them. It is clear that the treaty negotiations occurred in settings where unequal bargaining positions prevailed. The issues reflected in the written versions of the treaties do not conform to the Aboriginal understandings of those same treaties. A clear example of that is the manner in which the right to self-government of the Aboriginal people has been undermined, not by the treaty documents themselves, but by the way in which the provisions of the treaties, particularly the land surrender provisions, have been interpreted by the various government administrations over the years. Federal and provincial governments have generally approached the treaties as documents justifying their right to intrude greatly in the lives of Indian people. They have considered treaties as containing limited promises that could be overridden when desired. These governments have also adopted the view that Aboriginal people have no rights except as expressly contained in the written treaty documents or otherwise given by valid legislation. The Aboriginal people have approached the treaties as ones in which covenants were made between the Crown and Aboriginal nations. In their view, the Crown acquired only those rights expressly specified in the treaties, while all others, including the right to self-government, were retained by the Aboriginal nations. When confronted with the question of establishing to the satisfaction of this Inquiry how Aboriginal people lost their right to continue to govern themselves, the Deputy Minister of Justice, John Tait, stated:
During the course of negotiating the matter of treaty and Aboriginal rights in the constitutional talks of a few years ago, the various governments of this country essentially admitted that the Aboriginal people had the right to govern themselves, but failed to agree with the Aboriginal leaders in attendance on the nature and extent of that right. The latter fact is not surprising, considering that Aboriginal people want the explicit constitutional recognition of their right to continue to govern themselves to be as clear as possible, whereas the provincial and federal governments wanted this right to be as dependent upon their control and consent as possible. We believe that there is no longer an issue as to whether Aboriginal people have the right to govern themselves in accordance with their customs and traditions. It is clear, we believe, that they have that right. It also is clear that there is little agreement on how far that right extends into existing federal and provincial jurisdictions. It is regrettable that this vital concern has been addressed in terms of whether our first ministers are willing to "give" power and on what conditions. Instead, we believe that the way in which this should be addressed is to question how and to what extent Aboriginal people lost their original right to self-determination. Those who assert that the right is already limited are the ones who should bear the onus of proving this contention. Their inability to do so would mean that the right still continues in force. In our view, Aboriginal people have not lost the right to govern their own affairs. This right to self-determination precedes colonization and has never been voluntarily surrendered. There is no evidence that Aboriginal people were ever conquered so as to be susceptible to the victor’s unilateral domination. None of the treaty negotiations in Manitoba indicates any intention by the Aboriginal leadership to surrender their governmental authority. Further, international law today clearly recognizes the right of peoples to determine their own future. It is possible today to assert that Aboriginal people enjoy an ongoing right to self-determination which is not subject to federal or provincial interference. That position is confirmed by section 35 of the Constitution. It is our assessment that Aboriginal rights to self-determination must be acknowledged openly and freely by all levels of government. The law now starts from a presumption in favour of the continued existence of Aboriginal and treaty rights. This reflects a considerable change in Canadian law. Some limitations were accepted by Canada’s courts in previous years, but, in our opinion, such tendencies and those past decisions are no longer valid under the law as it now stands. The legal philosophies and the 19th century theories which gave rise to those decisions must now be discarded. TOP
The Evolving Law on Aboriginal and Treaty Rights TOP Introduction Aboriginal and treaty rights are both of major relevance in this province. Parts of Manitoba are included in Treaties 1, 2, 3, 4, 5, 6, 9 and 10, which were signed between 1871 and 1930. First Nations which are signatories to Treaties 3 and 9 do not reside in the province. The existence of these treaties, as well as the provision in the Manitoba Act, 1870 that benefited the Metis, reflected recognition that the Aboriginal peoples possessed title to this territory. As mentioned earlier, the basic policy of the Imperial and later Canadian governments towards Aboriginal peoples was influenced by expediency, self-interest, respect for the military and trading importance of Aboriginal peoples, colonial demands for land, threats of external competition, perceptions of European superiority, occasional regard for international law and response to practical realities. The Canadian courts played almost no role in this equation until the late 1800s, in stark contrast to the significant jurisprudence that was being articulated in the United States as early as the 1790s. Even the earliest decisions from English courts during the 1700s21 were ignored by the American courts after Independence and, surprisingly, by Canadian courts, as well. The three most important decisions on Aboriginal title and Indian sovereignty were enunciated in the 1820s and 1830s by the United States Supreme Court: Johnson v. M’Intosh, Cherokee Nation v. Georgia and Worcester v. Georgia. The first important Canadian case on Aboriginal title did not arise until over 50 years later, and in this case the dispute really was between the federal and Ontario governments (St. Catherine’s Milling & Lumber Co. v. R.). The corporate litigant was merely caught in the middle of a power struggle between Ottawa and Toronto over who acquired the land, jurisdiction and benefits from the surrender of Aboriginal title through Treaty 3, as the company had received a federal timber licence, causing the Province to sue it for trespass and damages. The Ojibway were not even a party to the lawsuit that was determining their rights and status, nor were they consulted on this vital case. Interestingly, the federal government argued that Aboriginal title was equivalent to fee simple ownership, because it acquired full ownership of the land from the Ojibway through the treaty. This position was rejected by the Canadian courts and then by the Judicial Committee of the Privy Council on appeal, which declared instead that Aboriginal title was a mere "burden" on provincial Crown title that disappeared when the federal government obtained its surrender by treaty. Aboriginal people only reluctantly began to assert their Aboriginal or treaty rights with any regularity in Canadian courts in the 1950s, and even then it was as defendants in confronting hunting and fishing harvesting charges. Aboriginal peoples did not voluntarily invoke the authority of the Canadian judiciary to define their rights until the ground-breaking case of Calder v. Attorney General of British Columbia in 1973. The continuing hesitation to utilize Canadian courts to address Aboriginal and treaty rights issues may reflect several factors. One of these is that it was illegal for Indians or lawyers to pursue land claims in court, or to collect or receive money for this purpose, under the Indian Act from 1927 until its last major overhaul in 1951. The very limited scope given to Aboriginal and treaty rights by the courts, as exemplified by the Privy Council’s description of Aboriginal title as merely being "a personal and usufructuary right, dependent upon the good will of the Sovereign,"22 or the virtually racist language in R. v. Syliboy, [1929] 1 D.L.R. 307 (N.S. Co. Ct.), was also very discouraging to potential litigants. Furthermore, launching major lawsuits, especially ones requiring extensive expert and historical evidence, is an exceedingly expensive undertaking that is well beyond the financial means of almost all Aboriginal groups and individuals. Choosing to argue Aboriginal or treaty rights in a Canadian court is also very risky for Aboriginal people. It removes all control over the future well-being of the group or community from its members and places it largely in the hands of non-Aboriginal judges who have almost no background regarding Aboriginal legal issues, and limited awareness and sensitivity toward the concerns of Aboriginal people. In this context, the stakes are very high indeed when the typical "winner take all" outcome of litigation is combined with the potential for the decision to govern future generations. These restrictions on the use of litigation help to explain the lack of clarity and certainty in our jurisprudence, especially in comparison with federal Indian law in the U.S. Likewise, legislation has not been utilized to clarify the nature and legal status of Aboriginal and treaty rights. Parliament clearly has legislative jurisdiction pursuant to section 91 (24) of the Constitution Act, 1867 to enact statutes concerning "Indians, and Lands reserved for the Indians." This has justified federal statutes regarding Indians since 1868 and the Indian Act since 1876. These statutes, however, have had nothing whatsoever to say about Aboriginal title and very little effect on treaty rights. The prevailing view, as supported by the Supreme Court of Canada in Natural Parents v. Superintendent of Child Welfare, [1976] 1 W.W.R. 699, also has been that provinces have no constitutional authority to legislate explicitly regarding Indians or their lands. Therefore, provincial governments could not resolve the confusion statutorily and Parliament has chosen not to do so. This general situation has changed significantly over the past few years, through a number of major court decisions and the influence of the new Constitution. TOP
The Legal Authority to Enter into Treaties TOP The treaty-making process began in early 17th century New England and New York, and continued in Canada, first in the Atlantic provinces during the 1700s and later in Upper Canada after 1763. Negotiating treaties was a response to the reality of a significant number of organized Indian groups living in settled territories. The legal theory that best explains the reasons for treaties is the natural law idea that established communities have rights to the lands they use and occupy. Natural law was the basis of international law, and played a significant role in 17th and 18th century British legal thinking. In the early treaty-making process, the natural rights of Aboriginal peoples were recognized, and the treaty-making process itself was confirmed later in the Royal Proclamation of 1763 . When Rupert’s Land was transferred to Canada in 1869, Canada assumed the obligation of compensating the Indians for land taken up by settlement. The deed of surrender from the Hudson’s Bay Company to the Crown stated the following:
An Imperial Order-in-Council was issued on June 23, 1870, directing that Rupert’s Land was to become part of Canada on July 15, 1870. The conditions imposed for this transfer included the one just quoted. The transfer was preceded by a series of Resolutions and Addresses of the Canadian Parliament, in which the commitment was explicitly made that the interests of the First Nations would be protected and that compensation would be provided for any land acquired. The assumption of this obligation tacitly recognized the belief that the Indians had certain territorial rights at odds with the asserted title of the Crown. Like the Royal Proclamation of 1763, the transfer documents did not create Indian rights, because those already existed. The transfer documents merely dealt with who was to compensate, in the event that compensation or treaties were necessary. Between 1871 and 1922, treaties were negotiated in Rupert’s Land and the NorthWest Territories, with adhesions for various groups continuing up to the 1950s. In cases dealing with federal financial obligations, the question of the legal enforceability of the treaties arose. While some courts upheld treaty provisions on the basis of contract law,24 other courts declined comment on the legal enforceability of the treaties, simply holding that the treaty provisions in question had been overridden by statute.25 In fact, the Indian Act neither authorized treaty making nor provided that treaties in general had legal force, other than in exempting treaty Indians since 1951 from provincial laws that conflicted with treaties as a result of section 88 of the Act. The Supreme Court of Canada, in R. v. Simon, declared that Indian treaties are in a special class all their own. Chief Justice Dickson stated:
While Manitoba Indians are said to derive certain rights through the treaties they signed, the Manitoba treaties, like the other Indian treaties in Canada, gained greater legal status in 1982. Section 35 of the Constitution Act, 1982 recognized and affirmed existing treaty rights. This effectively precluded any further arbitrary parliamentary interference with those rights, such as had occurred under the previous doctrine of parliamentary supremacy, through which the courts concluded that Parliament legally could do whatever it wished, even if it was unjust and dishonourable to violate solemn treaty commitments. TOP
The Manitoba Treaties TOP The written versions of Treaties 1 to 6, 9 and 10 all have relevance in Manitoba. The content of the federal government’s narrow version of the treaties, which is based upon a strict reading of their terms, may be grouped and summarized as follows. • Sovereignty and Allegiance. The expressed goal of the treaties signed in Manitoba was "peace and goodwill" between the Indians and the Queen. While the treaties did not deal expressly with the transfer of sovereignty over Indians from the Indian tribes to the Crown, all referred to the Indians as subjects. This has been relied upon by the federal government as being recognition of a transfer of allegiance and sovereignty. However, since the treaties were negotiated through the chiefs, the existing political order was also recognized. • Surrender of Land. The stated intention of the treaties was to open up the area for settlement. Under the treaties, the Indians were said to have ceded, released, surrendered and yielded up the land to the Crown forever. The language of the individual treaties reflects the wording used by lawyers, as if these were deeds conveying private interests in land. • Reserves. Most of the Prairie treaties promised reserves on the basis of one square mile per family of five. Treaties 1, 2 and 5, however, were exceptions as they merely promised 160 acres per family of five. The rationale for identifying smaller reserves under these three treaties is unclear. • Education. Treaties 1 to 5 promised schools on reserves. Treaty 9 promised to pay teachers’ salaries, but did not expressly link the schools to the reserve system. This latter treaty probably reflects the development of the off-reserve residential school system by the time the treaty first was signed in 1905. • Economic Development. As stated in Treaties 3 and 5, the reserves were established for the purposes of farming. Under the treaties, agricultural assistance in the form of animals, farm implements, ammunition and twine was promised. • Ban on Alcohol. Under Treaties 1 to 5, alcohol was banned from the reserves. • Hunting and Fishing Rights on Surrendered Lands. Although hunting and fishing rights were not included in the written versions of Treaties 1 and 2, they were promised orally and have been written into each of the subsequent Manitoba treaties. Treaties 4 and 9 went further and promised trapping, as well. • Annuities. Annuity payments to the chiefs and band members were provided for under each treaty. In Treaty 5, the annuity payments to the chiefs were referred to as an "annual salary," and these payments sometimes were supplemented by gifts of flags, medals, clothing and buggies. • Regulatory or Legislative Authority of Canada. The Government of Canada reserved for itself certain regulatory authority under the treaties. There was no reference to legislative authority or parliamentary supremacy. Under the treaties, Canada prohibited the presence of alcohol on the reserves and was expected to strictly enforce this regulation. Hunting, fishing and trapping rights were also made subject to federal legislation. Moreover, Treaties 3 to 9 allowed the expropriation of reserve lands without federal legislation, in return for due compensation, if the reserve lands were needed for public works. TOP
The Relationship of Treaties to the Indian Act TOP There are striking differences between the Indian Act and the treaties. First, the Indian Act was not formulated by the bilateral, consensual process which had characterized the negotiations of the treaties. Second, the Indian Act sought to replace the traditional Indian political system by arbitrarily defining a process for the selection of chiefs and councils. And third, the Indian Act imposed upon Indian nations an artificial grouping called the "band," and sought to define who was legally entitled to be called an "Indian" in Canada. The Indian Act represented a shift in the way the Canadian government dealt with Indians. It was not designed to create or recognize existing rights, but, instead, essentially represented an attempt by a government bureaucracy to manage the lives of Indians and Indian communities. Thus, almost overnight, Indians went from being recognized as having independent political and territorial rights under the treaty process, to being subject to the concept of unilateral parliamentary supremacy under the Indian Act. In Manitoba federal legislation was not brought into force until May 1874, so it was not applicable in the province at the time of the negotiations of Treaties 1, 2 and 3. Arguably, therefore, its provisions were not an issue to resolve during the early stages of the treaty process. It was in force at the time of the later treaties. However, it is clear, as well, that its terms never really were applied or even explained to the more isolated bands included in those later negotiations, until well after the treaties had been negotiated. Thus, Indian people were negotiating treaties under the expectation that they would continue as before to govern their own affairs, while the Crown knew that it would be imposing a legislative regime to suppress traditional authority and transform the lives of Indian people in a way contrary to their wishes. TOP
Problems with the Validity and Text of Treaties TOP Indian leaders have always maintained the importance of the treaties, and this position has been consistent up to the present date. While commentators have called the treaties flawed and nothing more than legalized theft, Indian leaders generally have taken a different tack. They have argued for a conceptual interpretation of the treaties, one reflecting their spirit and intent, which is more in line with what the original signatories believed the agreements entailed. To Indian leaders, the treaties are a recognition of Indian sovereignty. As long as the treaties continue in existence—despite their flaws—they serve as a continuing recognition of the Indian right to autonomy and self-government. The treaties represent a permanent relationship between the Crown and Indian people. They reflect solemn undertakings by both sides. The Indian nations pledged to be allies of the Crown forever and to support the Crown, even in times of conflict with other countries. For this reason, Indian people had a very high rate of participation in the armed forces during times of war—even though they were not subject to the conscription laws applicable to others. The Crown was seen as committing itself to promote the well-being of its Indian allies. It was seen by Indian nations as assuming obligations under the treaties that were to be of a beneficial nature to the Indian signatories and the peoples they represented. This was not seen as including, however, the authority to dictate to Indian people how they would live and how their governments would act. The various promises made under each treaty have a special significance to Indians. The promise of hunting, fishing and trapping rights is seen as a preservation of the traditional economy of the Indian peoples throughout their entire traditional territory, rather than limited to the reserves. The promise of ploughs and seed is seen as a commitment to economic development. The promise of reserves is viewed as a permanent guarantee of a land base on which Indian communities can flourish without external influence or control. The promise of a "medicine chest" is seen as the provision of free health care services, adequate to the needs of Indian people. The promise of schools is interpreted as a guarantee of free education, sufficient to meet the aspirations for Indian children to acquire those skills and opportunities essential to confront changing circumstances. The confirmation of rights to harvest fish and game is viewed as confirmation of traditional economies and lifestyles. This means that the land will be shared and used by both sides in a manner not mutually exclusive so that wildlife will remain plentiful. Although Indians have argued for a conceptual interpretation, the courts have been more inclined to debate whether the treaties should be given a literal or liberal interpretation. The decisions over the years have been largely mixed and inconsistent. For example, in one case, the Exchequer Court interpreted the promise of a "medicine chest" to cover all prescription drugs for Treaty 6 bands,27 but in another case, the Saskatchewan Court of Appeal held that the promise did not even extend to the provision of a doctor’s services.28 Another point of recent disagreement between Indians and the government has been the issue of funding for post-secondary education. While Indian leaders have fought the federal government’s new policies which seek to impose drastic limits on funding, the issue has yet to go before the courts. TOP
The Impact of the Constitution Act, 1982 TOP The provisions in the new Constitution have already had a dramatic effect on the way in which our courts are now dealing with legal disputes concerning Aboriginal and treaty rights. In order to understand the current state of the law and its likely future development, one must first appreciate the former situation so that the change in the law is more apparent. Prior to Constitutional Recognition While the Canadian courts had given some effect to the existence of the Aboriginal peoples’ title to their own land, the St. Catherine’s Milling case indicated that this title survived solely at the pleasure of the Crown. It could be extinguished by conquest, treaty or unilateral Crown action.29 Subsequent courts readily concluded that Aboriginal rights to land and its natural resources were subject to regulation by both federal and provincial laws of general application, even where these laws never stated on their face that they were intended to override Aboriginal rights. As a result, Aboriginal people were regularly convicted for infringing federal and provincial fish and game legislation.30 While the courts clearly stated that both First Nations and the Inuit could possess Aboriginal rights (Calder and Baker Lake), the legal rights of non-status Indians and the Metis appeared more doubtful.31 Treaty rights have received slightly better treatment than Aboriginal rights by the Canadian courts. The general thrust of the case law is that these rights were regarded as providing an exemption to the application of provincial legislation to Indians, when there was a conflict between a particular statutory provision and a treaty term.32 This exemption would not apply, however, when the provincial statute prohibited an activity at all times33 or when it dealt with public safety.34 Treaty rights, however, were subject to being overridden by valid federal legislation. Thus, the Fisheries Act and the Migratory Birds Convention Act were relied upon regularly to restrict the exercise of treaty rights.35 The courts shed little light on the content of Aboriginal and treaty rights. Aboriginal title was declared to be part of the common law in recognition of the fact that Aboriginal people had been here for thousands of years before the arrival of Europeans. Therefore, any group that could prove that it had occupied identifiable lands exclusively as a distinct society prior to the advent of British claims would be seen as possessing rights to the land. The precise scope of these rights was not fully articulated, although the courts indicated that they included the activities necessary to sustain the continuation of the group’s way of life, such as hunting, fishing and gathering. The courts were somewhat clearer in describing treaties as including both the written terms and oral promises that were made during the negotiations.36 The Supreme Court of Canada ultimately resolved the dispute concerning how treaties, as well as statutory provisions regarding Aboriginal peoples, should be interpreted. A treaty is to be given a meaningful interpretation in contemporary society, rather than frozen in time as it might have been exercised on the date it was signed.37 It is also to be read in a way that does not bring dishonour to the Crown.38 Possible interpretations that might suggest sharp dealing or trickery are to be rejected.39 Treaties, therefore, are to be construed liberally, rather than literally. This means that each treaty should be understood not according to any technical meanings that could be attributed to the words used, but, rather, in their ordinary sense. In particular, they should be interpreted in the manner in which they would have been understood naturally by the Aboriginal signatories, with any doubts resolved in favour of Aboriginal people.40 The legal position in Manitoba and the other Prairie provinces, as well as a part of British Columbia, is complicated somewhat by the existence of the Natural Resources Transfer Agreements (NRTA). The Manitoba agreement, like the other three, conveyed the federal government’s ownership of Crown land and natural resources to the provincial government, so as to put Manitoba in a position equivalent to those provinces that had existed previously as colonial governments, who acquired full Crown ownership rights when they joined Confederation. The Constitution Act, 1930 incorporated these Natural Resources Transfer Agreements as constitutional amendments. Within the agreements is a provision designed to protect the continuation of Aboriginal wildlife harvesting rights. The relevant section in the Manitoba agreement (R.S.M. N30, s. 13) is as follows:
The Supreme Court of Canada declared the overall purpose of this clause to be "to effect a merger and consolidation of the treaty rights theretofore enjoyed by the Indians but of equal importance was the desire to re-state and reassure to the treaty Indians the continued enjoyment of the right to hunt and fish for food."41 A considerable amount of litigation has occurred over the last 30 years regarding the scope and precise meaning of each phrase within this provision. The courts have concluded that it only applies to restrict provincial legislation, but not federal statutes. It provides a limited exemption to Indians in terms of where they can harvest free from provincial restraint: on unoccupied Crown land and other places where they have a right of access for wildlife harvesting. This constitutional right also relates solely to food purposes and not commercial ones, even where the commercial aspect is secondary or accidental, as in the sale of a bear hide when the bear was shot in self-defence.42 The Supreme Court of Canada has declared that certain treaty rights have been absorbed and altered by the Natural Resources Transfer Agreements. In return for acquiring the right of food harvesting throughout the Prairies so as to extend beyond the boundaries of a particular treaty, Indian people are subject to provincial regulation of commercial harvesting practices.43 It is important to note that this exchange of rights occurred without Indian consultation or consent. After the New Canadian Constitution The Charter of Rights and Freedoms contains a specific section designed to recognize and preserve these special legal rights from any challenge based on other provisions within the Charter itself, including the guarantee of equality in section 15. Section 25, as amended in 1984, states:
Part II of the Constitution Act, 1982 contains the substantive recognition of the unique position of the original inhabitants of Canada. It not only includes a positive assertion of legal rights within the Constitution as "the supreme law" of Canada by virtue of section 52, but it also ensures a distinct role in the current constitutional amending formula, to a limited degree. As a result of amendments negotiated during a First Ministers’ Conference on Aboriginal Constitutional Matters in 1983, and proclaimed in force in 1984 through the Constitutional Amendment Proclamation, 1983, the relevant provisions now read in Part II as follows:
Section 35.1, therefore, does guarantee that Aboriginal peoples must be consulted on any future amendments to sections 91(24), 25, 35 and 35.1. It does not prevent amendments to these sections without Aboriginal consent, however, nor does it give Aboriginal people any veto over such proposed changes. It also does not guarantee them a role in other amendments that indirectly might affect them or their rights. Provisions in the Constitution of Canada are not to be interpreted in the traditional fashion used with regular legislation. The Supreme Court of Canada has declared repeatedly that constitutional interpretation is different from normal interpretation of statutes and private agreements. Constitutional interpretation requires a broad, purposive approach to be used in light of general principles and the purposes underlying the constitutional provisions themselves. This approach is particularly apt in relation to the Charter of Rights and Freedoms and section 35. Not only are the Aboriginal provisions part of the Constitution and warrant a liberal interpretation, but their source is unique as they were not drafted solely by legislators. Instead, the wording was agreed to jointly by Aboriginal leaders and first ministers. The legal impact of section 35 was far from clear when it was first proclaimed. Ensuing cases have clarified some aspects, but the provision is still in a period of legal evolution. Considerable debate has occurred as to the impact of including these provisions, particularly those recognizing and affirming the "existing aboriginal and treaty rights of the aboriginal peoples." The debate centred on two major issues: the precise legal effect of placing Aboriginal and treaty rights in the constitution; and the question of the beneficiaries of any tangible legal benefits of this provision, if it did have any significance. The former issue has dominated attention and could affect all Aboriginal peoples, while the latter has tended to focus upon whether non-status Indians and Metis had any real rights that deserved recognition and affirmation in the first place. The first few years after patriation were a period of legal uncertainty. Most government lawyers and some others asserted the narrow view that section 35 merely codified the prior state of the law. They argued that the presence of the word "existing" in section 35(1) was intended to confirm the existing legal situation. On this basis, they argued that Aboriginal and treaty rights could still be extinguished or regulated by either explicit or general legislation. They thought that any significant legal change in the status quo required more explicit language through further constitutional amendments. In other words, section 35 was largely an "empty box" that could be filled, if that was seen as politically appropriate, through amendments negotiated via the First Ministers’ Conference process mandated by section 37 (and later section 37.1). The initial court decisions on section 35 tended to adopt this view.44 A few even asserted that section 35 had no legal effect at all.45 At the opposite end of the spectrum were Aboriginal leaders and many others who argued that section 35 was specifically intended to transform the status quo. They viewed the First Ministers’ Conference process as a means through which the Constitution could be amended so as to be worded more clearly and precisely to eliminate the likelihood of extensive and expensive litigation, and to enable greater public comprehension. They considered section 35 to imply a "full box" of rights, including the right of self-government. Under this theory, all Aboriginal and treaty rights were restored to full flower, free from any federal or provincial restraints. Apart from a few exceptional lower court decisions,46 the courts have either ignored this position or rejected it.47 Between these two extremes were a variety of other interpretations. At the conservative end was the view that all prior alterations and extinguishments of Aboriginal and treaty rights remained effective, but that subsequent extinguishment was no longer possible. New restrictions would be acceptable only if they accorded with previous approaches toward regulating rights.48 It was also suggested that regulations which had prevented the exercise of these rights before 1982 had the effect of extinguishing the rights so that they were "lost" and unable to be protected by section 35.49 Another view was that "existing aboriginal and treaty rights" meant "unextinguished" rights, so that section 35 does not retroactively annul prior extinguishments of Aboriginal rights so as to restore the rights to their original unimpaired conditions. On the other hand, previous regulations and limitations of Aboriginal and treaty rights did not necessarily mean that the rights had been extinguished, only that they could not be exercised in full, due to the presence of a statute. In such a situation, the rights had been "sleeping" rather than "dead" and could be awakened by section 35. While the First Ministers’ Conference process was underway, some courts preferred to avoid articulating the scope of section 35 in much detail, as judges felt that these issues were being addressed and hoped they would be resolved within this political forum.50 The Supreme Court of Canada indicated through its decision in Guerin in December 1984 that the new legal approach toward Aboriginal issues was not limited to the interpretation of treaties and the Indian Act. In the latter case, the court unanimously rejected federal arguments that the Crown owed no legal obligations to the Musqueam Indian Band concerning the way in which the Department of Indian Affairs handled reserve lands surrendered for lease as a golf course. Although three different judgments were delivered, seven of the eight justices apparently were not impressed by the legal submissions of counsel for the federal government. The court decisively rejected the position that the Crown-Indian relationship was one that could be characterized merely as an unenforceable political trust. Instead, Mr. Justice Dickson, as he was then, on behalf of three colleagues, labelled it a fiduciary obligation flowing from the doctrine of Aboriginal title and the foundations of the Aboriginal-Crown relationship that pre-dated Confederation. In his opinion, certain sections of the Indian Act reflected this historic relationship, but the Act was not itself the source. Aboriginal title was a function of long-standing presence, and the duties of the Crown to respect Aboriginal rights stemmed from the unique relationship intentionally formed with Aboriginal peoples by the Crown. He further declared that the federal government was subject to fiduciary duties which had been violated in this instance, resulting in damages being assessed by the trial judge at $10 million plus interest. The Guerin decision did far more than establish a fiduciary obligation in Canadian law regarding the manner in which the Crown exercises its discretion in dealing with Indian reserves. Mr. Justice Dickson clearly removed any lingering doubts resulting from the divergent views of the Supreme Court in Calder. He further stated that Aboriginal title was neither created by the Royal Proclamation, nor limited to its geographical scope. Aboriginal title instead is recognized independently by the common law and is a sui generis, or unique interest in land. It is not dependent upon the Royal Proclamation, the Indian Act or "any other executive order or legislative provision."51 The transformation in judicial thinking evident in Guerin, as well as the change that it made in Canadian law, did not affect the attitudes of the first minsters. However, this decision has had a considerable impact on developments in the jurisprudence. Although Guerin did not address section 35, it was likely influenced by the presence of the new constitutional provisions. The court, really for the first time in Canadian history, placed clear limits on the discretion of the Crown to exercise its jurisdiction over Aboriginal peoples in ways conflicting with Aboriginal interests. Unlimited federal power, which had been the hallmark of the treatment of Aboriginal peoples, now had been tempered by the duty to act as a fiduciary in advancing the interests of First Nations. Judgments over the last few years have expanded this transformation in the Aboriginal-Crown relationship. The courts have generally chosen to give section 35 a broad, remedial interpretation in relation to both federal and provincial legislation. The judiciary has further widened the scope of both Aboriginal and treaty rights in a fashion that is independent of section 35, yet interrelated to this constitutional provision. This judicial approach also has not been limited to the members of the Supreme Court of Canada. The changes in the law are most notable in several areas. The fiduciary obligation doctrine first advanced in Guerin has been expanded significantly by the Supreme Court in 1990 in R. v. Sparrow, [1990] 1 S.C.R. 1075. The fiduciary obligation now applies clearly to all Aboriginal peoples and not just Indian bands. It is also not restricted to reserve lands or Guerin-type situations. Furthermore, this duty applies to both the federal and provincial governments under the common law, and the obligation is also incorporated within subsection 35(1) so that it has constitutional protection. The Supreme Court of Canada in Sparrow declared that the nature of this obligation is connected to "the concept of holding the Crown to a high standard of honourable dealing with respect to the Aboriginal peoples of Canada."52 This results in the imposition of strict standards of trust-like conduct that will be supervised by the courts. In our opinion, this means that the governments of Canada and Manitoba are under legally enforceable obligations to act on behalf of Aboriginal groups and communities. This general fiduciary obligation means that the Manitoba and federal governments are required by law to place the interests of Aboriginal people first and foremost as a reflection of the special, historic Aboriginal-Crown relationship. The practical inequality that has existed for generations, under which the Crown has had the power to affect the lives and rights of Aboriginal peoples any way it wanted to, now must cease. The governments of Manitoba and Canada now have had over a year to study the implications of the Supreme Court of Canada’s decision in the Sparrow case. Neither government has released its official interpretation yet, or declared how it will change its practices to meet the legal obligations it carries in relation to all Indian, Inuit and Metis peoples. We note with interest that the government of Ontario released its new position in the area of wildlife harvesting in May 1991. It is clear that the federal and provincial governments possess fiduciary obligations for Indian, Inuit and Metis peoples that cannot be avoided. These obligations are now entrenched constitutionally in section 35. The governments of Canada and Manitoba should delay no longer in making this obligation the explicit cornerstone of the new relationship that they should be forging with Aboriginal people. We recommend that:
In the last few years, the courts have also begun to elaborate upon both the scope of section 35 in general and its impact upon legislation. The appellate courts of British Columbia, Ontario and Nova Scotia53 have led the way in rejecting the earlier narrow views of the Saskatchewan Court of Appeal.54 The Sparrow decision of the Supreme Court of Canada now confirms the correctness of the broad, remedial approach in relation to section 35. The Sparrow case involved a Musqueam Band member who was charged in 1984 for fishing with a drift net longer than permitted by the band food-fishing licence given under the federal Fisheries Act. The Supreme Court of Canada was confronted for the first time with arguments directly raising the question of the effect of subsection 35(1) on long-standing federal legislation. Previously, the court had stated on many occasions that federal law prevailed over Aboriginal fishing rights.55 The court concluded in Sparrow that:
The court went on, however, to say that this does not mean that the existing Aboriginal right is merely the right as it stood on April 17, 1982, subject to regulation. Instead, "existing" means "unextinguished," so that Aboriginal rights, even though extensively regulated before, are protected by subsection 35(1) in their historic, unregulated form as long as they were regulated only, but not completely terminated. Furthermore, these rights "must be interpreted flexibly so as to permit their evolution over time"57 and they are "‘affirmed in a contemporary form rather than in their primeval simplicity and vigour.’"58 The court also placed limits on the test for any extinguishment that might have occurred prior to 1982. The court adopted the "clear and plain language" test that had been asserted by Mr. Justice Hall in the Calder decision, rather than the less rigorous approach of Mr. Justice Judson. This means that legislation cannot extinguish or infringe Aboriginal title or Aboriginal rights unless it uses explicit language indicating that the statute is intended to affect these unique rights negatively. The scheme of restricting Aboriginal rights, present for almost a century through the Fisheries Act and its regulations, was declared to be inadequate to limit or eradicate Aboriginal rights. In Sparrow the court outlined the legal import of subsection 35(1). It must be given a generous, liberal interpretation so as to be "sensitive to the Aboriginal perspective itself on the meaning of the rights at stake,"59 in keeping with the unique Crown-Aboriginal relationship that placed "the honour of the Crown" at issue. Section 35 "also affords Aboriginal peoples constitutional protection against provincial legislative power."60 This does not mean, however, that:
The justification standard established by the Supreme Court consists of several components. First, the existence of an Aboriginal right must be demonstrated, along with specific legislative interference of that right. Such interference may range from regulating the exercise of the right or prohibiting it entirely. If prima facie infringement of subsection 35(1) is proven, then the onus shifts to the Crown. The Supreme Court declared that this "may place a heavy burden on the Crown" (at 1119), but this was appropriate where the Crown sought to violate a constitutionally protected right through existing legislation. To justify such an interference, the Crown must establish a "valid legislative objective," which requires more than mere allegations that the law reflects the "public interest" implemented by legislators. Instead, the Crown actually must prove that the legislation is essential to carry out vital purposes and does, in fact, meet such purposes. The next step in the analysis created by the court is to prove that the method chosen to attain this objective by the Crown respects the "special trust relationship and the responsibility of the government" regarding Aboriginal people.62 This meant, in the context of the Sparrow case, that the court demanded tangible proof that the constitutional priority accorded to Aboriginal rights was being met in fact in the allocation of the natural resource. The Crown, therefore, would have to prove that the first priority status given to the Aboriginal right for fishing for food, social and ceremonial purposes was respected by the legislation while it simultaneously infringed the right. The court also described certain questions that should be addressed as part of this analysis, including whether the least possible infringement has occurred, compensation has been offered if the rights have been expropriated, and the Aboriginal group has been consulted in the development and administration of the law. The court expressly left open the question as to whether commercial fishing was an Aboriginal right, as the issue did not arise in that case, although the judgment noted that the Ontario Court of Appeal in R. v. Agawa, [1988] 3 C.N.L.R. 73 had found commercial fishing to be a treaty right, but that it had been regulated validly by the Fisheries Act. The Supreme Court has stated clearly that Aboriginal rights must be given full respect and be "taken seriously" by governments in the exercise of their spheres of authority. Although the Sparrow case involved a member of an Indian band, the court judgment was expressly intended to be relevant to all Aboriginal peoples. The thrust of the judgment in Sparrow is also not limited to Aboriginal rights, as a number of courts have reached similar results in reference to treaty rights. Aspects of the Migratory Birds Convention Act have been ruled to be of no force and effect by the Manitoba Court of Appeal in R. v. Flett, [1991] 1 C.N.L.R. 140 (C.A.); affirming [1989] 4 C.N.L.R. 128 (Q.B.); affirming [1987] 5 W.W.R. 115 (Prov. Ct.). Certain fisheries regulations relating to licensing, closures and quotas have received the same result for violating treaty rights63 or Aboriginal rights.64 The Nova Scotia Court of Appeal’s decision early in 1990, in R. v. Denny et al. (1990), 94 N.S.R. (2d) 253, is also illuminating for its analysis of the interplay between Aboriginal and treaty rights. The Micmac defendants argued they had Aboriginal rights that were protected by 18th century treaties. The court accepted their argument on Aboriginal rights and did not feel it necessary to address the treaty rights issue. The Supreme Court of Canada cited the Denny decision at length and with favour in Sparrow. The particular relevance for Manitoba from the decision is that, in our opinion, it negates the common perception that treaty beneficiaries cannot also possess additional Aboriginal rights. The reaction of the Manitoba courts to these issues over the past few years is particularly noteworthy. The most important case has been Flett, which involved the application of the Migratory Birds Convention Act to treaty rights. As mentioned earlier, the position before the introduction of section 35 was that this Act, through its general language, could override express treaty rights guaranteeing Indians the authority to hunt as they always had,65 even though the treaty obligations of the Crown preceded the passage of this statute. Counsel for Flett argued before Judge Martin of the Manitoba Provincial Court that the former case law had been rendered irrelevant by the entrenchment of existing treaty rights in subsection 35(1) of the Constitution Act, 1982. Judge Martin concluded that the new Constitution had made a significant change in the law. He rejected provincial arguments that the law remained the same, and stated:
He went on to acquit Flett on the basis that his treaty right prevailed over the conflicting provisions of the Migratory Birds Convention Act and its regulations. The provincial government appealed this decision, which is within its authority. Amazingly, the Department of Natural Resources continued to enforce the legislation as if the decision had never been rendered. As Gene Whitney, Enforcement Coordinator of the Canadian Wildlife Service, told us:
This was completely improper. Canadian criminal law does permit a stay of a trial judgment during the appeal process, but only upon decision by the court hearing the appeal and in very limited circumstances. No stay was sought by the Crown or ordered by any court. The government was simply flouting the law, as it had no authority whatsoever to ignore this decision. Judge Martin’s decision was the law and deserved to be both respected and followed unless or until overturned. It brings dishonour to the government and the Crown when court decisions are not respected solely because the government has lost the case and has launched an appeal. Continuing to prosecute Indians on the same basis that had been rejected by Judge Martin after the trial decision in Flett imposed great hardship on those charged, and brought the government as well as the legal system in Manitoba into disrepute. This cannot be justified and should never be repeated. Judge Martin’s decision in Flett was upheld two years later by Mr. Justice Schwartz of the Manitoba Court of Queen’s Bench. Mr. Justice Schwartz relied, as well, upon a decision of Madame Justice Conrad of the Alberta Queen’s Bench that had been delivered after the decision of Judge Martin.67 Both superior courts declared that subsection 35(1) had fundamentally altered the law, resulting in full protection being granted to the proper exercise of treaty rights. While unsafe methods of hunting could be regulated and preservation of a species maintained, the provisions under the Act which restrained hunting seasons and bag limits were of no force or effect regarding unextinguished treaty hunting rights. Section 35 had confirmed and entrenched the original treaty rights unaffected by the Migratory Birds Convention Act. This did not repeal or invalidate the Act, but rendered it inoperative when it conflicted with treaty rights. Again, the Manitoba government chose to appeal and continued to refuse to give full weight to the Queen’s Bench decision in the interim. In 1991 the Court of Appeal unanimously refused to grant leave to appeal, in no uncertain terms. The majority of the court also took the unprecedented action of awarding costs against the government in the amount of $15,000, to reimburse the Assembly of First Nations for the expenses it incurred through intervening in the last stage of the judicial process. The court was advised that the Crown had already agreed to substantially cover the costs of Flett. The law is clear in Manitoba. Treaty rights must be respected. Rights under treaties will prevail over inconsistent federal or provincial legislation, except for the very limited circumstances where safety or essential conservation practices are at issue. In the latter case, treaty beneficiaries are still to receive priority in the allocation of the harvest. The Flett case also demonstrates what has been a continuing source of conflict in Aboriginal-Crown relations in this province. We are referring to the regrettable and unlawful tendency of the federal and Manitoba governments to refuse to immediately honour decisions from our courts that reject government policies concerning resource management. We were told time and time again during the hearings that treaty rights were being infringed by conservation officers. Typical of these complaints was that from Rex Ross of the God’s River Band:
The decision of the Supreme Court of Canada in the Sparrow case provides another ready example. The Supreme Court delivered its unanimous judgment on May 31, 1990, in which it clearly declared that Aboriginal and treaty rights are entitled to priority in the allocation of fish and game resources. Nevertheless, governments across the land have responded by saying that they must study the decision and analyse its impact upon existing legislation and enforcement policies. While this approach may be readily understandable initially, it does not justify sustaining prior enforcement practices against Aboriginal people in a way that suggests the law has not changed. Furthermore, governments cannot postpone action by studying the matter indefinitely. The impact of the Sparrow case is still under review by the federal government, more than one year later, in terms of its impact on the legislative regime and enforcement policies regarding harvesting of fish and migratory birds by Aboriginal people. The Indian and Metis people of Manitoba still do not know how the federal government will interpret the law. They still do not have any assurance that they will not be charged for exercising their Aboriginal and treaty rights. This naturally increases immeasurably the sense of frustration of Aboriginal people, due to a problem that is clearly contrary to the basic foundations of our legal system, which depends on clarity of the law and respect for the decisions of Canadian courts. Uncertainties created by government must cease immediately. Although the jurisprudence does not answer every question, the courts recently have given a great deal of guidance. In our view, it is now clear that existing Aboriginal and treaty rights, regarding the specific territory involved, override provincial or federal legislation that infringes these rights. The test articulated by the Supreme Court of Canada in Sparrow now establishes the basis upon which individual legislative provisions are to be assessed to determine their continuing validity. Even where the legislative interference with Aboriginal and treaty rights is able to be justified in the facts of a particular case, there still will be a number of critical issues that must be addressed. The Supreme Court has directed the Crown to do three things. First, the government must consider compensation where the rights are restricted unavoidably. Second, the Crown must consult with Aboriginal people to minimize any negative impact of an infringement of Aboriginal or treaty rights. Finally, the government must monitor the situation regularly to determine if the defensible rationale underlying the specific terms of the infringement that was acceptable in a particular case still exists or has disappeared. Our courts have established an entirely new approach toward the examination of Aboriginal legal issues, which includes the fiduciary obligation, the content of Aboriginal title, and the scope of Aboriginal and treaty rights. This approach applies to all legislation, whether or not Aboriginal peoples or their unique legal rights are mentioned. The broad thrust of the law covers both federal and provincial legislation because both levels of government owe a fiduciary duty to all Indian, Inuit and Metis people. It is our conclusion that, insofar as Aboriginal and treaty rights are concerned, the Canadian law has changed fundamentally. While the occasional decision may be completely out of step with this development, our opinion is that the Supreme Court has sent a clear message that Aboriginal and treaty rights must be given new respect by both governments and the courts. The Aboriginal-Crown relationship has been transformed to be more in keeping with its original foundations, but applied in contemporary terms. This significant shift in the law has clear implications for the position of Aboriginal people in Manitoba. We anticipate that negotiations on constitutional renewal and reform will probably occur in the near future. These discussions may well include efforts to achieve sufficient support for an amendment on self-government, designed to remove uncertainty and confirm that section 35 of the Constitution Act, 1982 does contain the right of Aboriginal peoples in Canada to govern their own affairs. We are hopeful that this will be successful, as we have concluded that the "aboriginal rights" within subsection 35(1) include the right of self-government. In our opinion, this right to self-government encompasses within it the right to establish and administer a justice system. While we favour such constitutional clarification to reduce conflict, we do not believe that such an amendment is in any way a necessity or precondition before our recommendations can be implemented. We recommend elsewhere that the governments of Manitoba and Canada recognize the existence of that right and take the actions necessary within their respective authority to provide the opportunity in which Aboriginal justice systems can develop. This is a matter which requires political will at the highest levels. We invite the two governments to demonstrate that will. TOP
Land Rights TOP Aboriginal people across Canada continue to vigorously assert rights and title to their traditional territories and to the regions they were moved to under pressure from encroaching settlers. Despite the clear recognition of Aboriginal title, and the prior practice of utilizing treaties to regulate Aboriginal-Crown relations concerning land until the late 1800s, there is still a persistent claim from Indian, Inuit and Metis peoples that their land rights have not been respected by either federal or provincial governments. Aboriginal witnesses repeatedly told us about both the rights to land they possess and the long-standing violations of those rights by the Manitoba and federal governments. Similarly, they spoke of how the treaty promises have largely been ignored. Chief Esau Turner, representing the Swampy Cree Tribal Council, told us at our hearing at The Pas:
Chief Jim Tobacco, of the Moose Lake Band, told us of a similar broken promise:
We sympathize with the frustration that was so apparent in the voices of presenters as we travelled the province. The Aboriginal people of Manitoba must be commended for the impressive display of patience and restraint they have demonstrated over the years in the face of government inaction. There should be no controversy today surrounding the issue of treaty land entitlement. In fact, treaty land entitlement should not even be an outstanding issue. It is a subject that is so simple and straightforward that it never should have arisen as a source of conflict in the first place. Under the numbered treaties, the Indian nations of Manitoba were promised explicitly by the Crown that they would retain large tracts of land for their permanent and exclusive use, as partial payment for surrendering their complete title to all other land in the province. Formulas were set out in each treaty for determining how much land would be reserved for the individual Indian bands that participated in the treaty. In Manitoba, Treaties 3, 4, 6, 9 and 10 contained a formula that guaranteed that reserves would be established by the federal government on the basis of one square mile for each family of five. Under Treaties 1, 2 and 5, a far less generous formula of 160 acres per family of five was used. These simple formulas could have been applied easily, once the actual populations of the individual Indian bands were determined. Having then determined the appropriate amount of land, all that remained to be done was for the parties to select the preferred location for the reserve and to have the site surveyed properly. No confirming Order-in-Council was necessary.68 As a result of what must be either gross federal incompetence or a deliberate unwillingness on the part of the government to fulfil its solemn commitments, 25 Manitoba Indian bands still are denied their full land entitlements. The Government of Canada could easily have fulfilled this lawful obligation on its own until 1930, when it transferred ownership of all Crown lands and natural resources to the Province of Manitoba through the Natural Resources Transfer Agreement. That transfer unfortunately generated decades of intergovernmental wrangling. Federal-Manitoba conflict is clearly not, however, an acceptable reason for inaction on moral, political and legal commitments of such magnitude. Manitoba treaties provide the foundations for the Crown’s acquisition of the territory and its ability to convey good title to individual settlers and corporations. The Natural Resources Transfer Agreements contained a clause designed to address how the treaty land entitlement issue was to be resolved. Clause 10 of the Alberta and Saskatchewan agreements and clause 11 of the Manitoba agreement provide that the federal transfer of the Crown’s interest does not undermine the Indian interest in reserve lands. They also include a mechanism to facilitate the creation of new reserves to fulfil treaty promises. The Manitoba provision, which is identical to those applying in the other two provinces, states:
This provision, along with the rest of the NRTA, was made an express amendment to the original Canadian Constitution of 1867. It is now called the Constitution Act, 1930 and is part of "the supreme law of Canada" by virtue of section 52 of the Constitution Act, 1982. Nevertheless, the presence of a mechanism and the existence of a constitutional obligation have not resulted in the fulfilment of these long-standing promises. We believe that immediate implementation of these outstanding obligations is required.TOP
Indian Reserves TOP The purpose and rationale for reserves has varied from time to time and place to place. Beginning in the 1700s, Quebec reserves were designed to train Aboriginal peoples in agriculture and Christianity, but in the Maritimes they served as places of refuge from the gradual expansion of colonists. In the Prairies, the purposes were mixed, serving both functions and the additional function of being a homeland where Aboriginal peoples could pursue their traditional way of life. Reserves also were created by the Crown as institutions for economic, social, cultural and political change. Not only were reserves to aid the assimilationist policies of the federal government, but they also got Aboriginal peoples out of the way so other land could be "settled" by white immigrants. Indian reserves have been central to the Indian policies of both the United States and Canada. Indian witnesses repeatedly told us of the importance of retaining reserves and improving their conditions. They also spoke directly about the problems caused by current reserves being too small to meet their needs. Roderick Harper, through an interpreter at Red Sucker Lake, told us:
The Development of Treaty Land Entitlements TOP While the Manitoba treaties contained a formula for calculating the size of reserves to be established, this calculation could not be done until the precise population of each band had been determined. Despite treaty negotiator and later Lieutenant Governor Alexander Morris’ admonitions that "all convenient speed" be used in establishing the reserves, reserve promises were implemented only in part. For some Indian bands, part of the treaty land entitlement was fulfilled, but the other part was put off to a later date. For other Indian bands, their treaty land entitlement was not fulfilled, since they lived in isolated and remote areas and the lack of European immigration into the area made "all convenient speed" unnecessary, at least for the federal government. The transfer of federal Crown lands to Manitoba in 1930 complicated matters even more, as it brought a new party into the issue: the Manitoba government, with its own set of interests and motivations. Instead of completing the promise of reserve lands by settling all outstanding treaty land entitlements before transferring the land to the Province, the federal government simply inserted clause 11 into the NRTA. This provision, however, did not allow the federal government to select unilaterally which land the Indians would get. Rather, the decision now would have to be made with provincial cooperation.TOP
The Formulas TOP The original purpose of the formulas in the numbered treaties was to secure an adequate land base for each band’s future reserve. The treaty promises to the southern bands of cattle, ploughs, harrows and seed confirm the basic agricultural role which their reserve lands were to serve for them. There was a major problem with the formulas, though. The formula in those treaties only served its purpose if the reserve lands were situated along the fertile belt of the Prairies. If the reserve lands were situated outside the fertile belt, then the agricultural formula was meaningless, because farming would be unable to provide an economic base. Hunting, fishing, gathering and trapping, however, could continue to sustain northern reserves. In order for these activities to serve as the new economic base for reserves above the fertile belt, larger tracts of land were needed than those available under the formulas of the numbered treaties. It is difficult to understand, therefore, why the treaty land entitlement formula for Treaty 5, which covers almost all of northern Manitoba, is the same as for Treaties 1 and 2 in the province’s agricultural south. If there was any justification for this, it must have been that the reserves would be the home for treaty beneficiaries, but that those beneficiaries would continue to have unlimited access to traditional use areas outside the reserves for important economic activities, such as hunting, fishing and trapping. The importance of maintaining and protecting these rights over non-reserve traditional use areas must have been seen in that light. In addition, the necessity of receiving the entire land entitlement under treaties, therefore, takes on added meaning. One issue which has been the source of contention relates to the date at which the population of the band is to be fixed for purposes of the formula. Under one settlement agreed to between Canada, the Saskatchewan Indian Nations and the Province of Saskatchewan in 1976, the population of the band as of December 31, 1976 was multiplied by the acreage formula set out in the treaty to arrive at the amount of land to which the band was entitled. If the band had previously received no land from the Crown, then this was the amount to which it was entitled. If the band had received some land but not its full entitlement, then the amount received to date would be deducted from the amount derived from this formula, and the remainder would be what the band was still entitled to. This model has been called the "Saskatchewan Formula." However, it is only one settlement and is not binding on the situation in Manitoba. The First Nations in Manitoba take the position that the amount of land to which they are entitled is to be determined by using the population of the band at the time the particular parcel of land is set aside. They appear to have some precedent for that position. The Saskatchewan Formula, using populations as of December 31, 1976, is one example where the governments recognized a modern-day population. It appears that the size of many reserves established over the years was based upon the total band membership of the day. The formula most unfavourable to the interests of treaty Indians waiting for their promised land is the preferred option of the federal and provincial governments. This is the "shortfall on first survey" formula. Under this formula, the population of the band, at the date the first piece of reserve land was surveyed, is multiplied by the acreage per person promised under the treaty to arrive at the treaty land entitlement, less any land they have received from the Crown to date. This proposal is unfavourable because the population of the band at the date of first survey was usually significantly less than the band’s current population. The smaller the band population figure used in the formula, the smaller the amount of land the Province and the federal government have to set aside for the First Nations. The matter has been difficult to resolve through negotiation, in view of the tremendous distance which separates the parties. What is clear is that the governments seem to think they have nothing to lose and everything to gain by waiting. Delay allows greater encroachment to occur on already diminishing Crown lands. Precise figures are difficult to ascertain, but according to the Treaty and Aboriginal Rights Research Centre of Manitoba, when Crown lands and resources were transferred to Manitoba in 1930, 111.7 million acres of unoccupied Crown land were available for selection by the entitlement bands. The total today is less than one-half that figure. Available Crown land will continue to decline. Treaty entitlement bands have made it clear that they wish to avoid disturbing private landowners. It is, therefore, in the best interests of the First Nations to have the matter resolved quickly, because they cannot be assured that there will be a sufficient amount of quality land available for selection in future years. If currently available land were placed under a moratorium against disposition so as to be kept free from development, then the First Nations would not suffer from the two governments’ intransigence. As it is now, they are clearly the losers in the waiting game. The Province has consistently favoured the "shortfall on first survey" formula. While the Province is concerned with giving up as little land as possible, and the federal government is wringing its hands at this sometimes unpleasant, embarrassing situation, the entitlement chiefs of Manitoba seemed to be concerned solely with resolving the issue as soon as possible. To this end, many offers of compromise have been extended, but whenever settlement appears close, political obstacles or changes of government seem to stall the tripartite negotiations. TOP
The Present State TOP Although the entitlement issue was mentioned in the Natural Resources Transfer Agreement of 1930, and discussed briefly in the 1950s and 1960s in relation to isolated problems, little was done about resolving this issue until 1975. That year the Minister of Indian Affairs wrote to the three Prairie premiers, urging that outstanding entitlement issues be addressed and settled. Movement first occurred in Saskatchewan. An exchange of letters between the Federation of Saskatchewan Indians, the federal government and the Province of Saskatchewan in 1976 and 1977 led to the establishment of the Saskatchewan Formula. The fixing of the population as of December 31, 1976 was not intended as a significant modification of the entitlement. Rather, it was merely a decision designed to facilitate getting on with a settlement, through specifying an exact date on which population figures could be calculated. It was not expected that the process would get derailed. In July of 1977, Warren Allmand, then the Minister of Indian Affairs, wrote the premier of Manitoba, suggesting the Saskatchewan Formula as a basis for settling entitlement claims in Manitoba. Later that month, the entitlement chiefs of Manitoba passed a resolution supporting the Saskatchewan Formula, with some adjustment in the date for calculating population. Following this decision, 26 entitlement claims were made to the federal and provincial governments. A new provincial government reverted to the "shortfall on first survey" formula. The federal government, however, rejected the Province’s position and restated its support of the Saskatchewan Formula. In August 1981 John Munro, Minister of Indian Affairs, appointed his parliamentary secretary, Ray Chenier M.P., as his personal representative to negotiate with the bands and the Province. Another new Manitoba government placed the issue under consideration, and the Treaty and Aboriginal Rights Research Centre published a detailed report on the treaty land entitlement issue. In September 1982 the Province, with the agreement of the entitlement chiefs, appointed Manitoba lawyer Leon Mitchell Q.C. to investigate and report on the issue. His report was completed in January 1983. By this time the federal government had accepted 20 separate claims as being valid and six more were pending. The Mitchell report confirmed that the federal government’s historic and traditional position on treaty land entitlement was to use the current-day population of the band, with the population being fixed as of the date of transfer of a particular parcel of land. Beginning in the spring of 1983 and continuing for over a year, the federal and provincial governments negotiated with the treaty entitlement chiefs to resolve this outstanding obligation. In August 1984 an agreement-in-principle was signed by the Treaty Land Entitlement Committee of Chiefs, the Province and the federal government. This agreement-in-principle:
But this agreement was not to be. In September 1984 a new federal government was installed and the agreement-in-principle began to fall apart. With this collapse came the withdrawal of the provincial government’s moratorium on the disposition of Crown land. This moratorium, established several years earlier, had prevented the transfer of Crown lands adjacent to reserves to third parties without the consent of the band. By the beginning of 1988, the federal government reversed its position and accepted the "shortfall on first survey" formula for future negotiations. As of June 1989, 13 of the 23 entitlement bands recognized in the 1984 agreement-in-principle tentatively had made land selections within this new formula, on the basis that it would not prejudice their position that they are entitled to more acreage derived from present population figures. Even this latest compromise, however, did not bear fruit and there have been no new developments on this issue since then. The entitlement chiefs no longer support the 1984 agreement-in-principle because too many years have passed to base a settlement today on band populations that existed in 1976. Indian communities continue to grow as a result of high birth rates and the effect of rectifying past discrimination through restoration of Indian status to thousands of people through Bill C-31. The federal government is currently reviewing its policy in this area. We note that the Province has stated that it supports the agreement-in-principle but has yet to take action on the matter. According to the Treaty and Aboriginal Rights Research Centre of Manitoba, the current outstanding treaty land entitlements are as follows: Land Entitlement (in Acres)
* Claims of outstanding amounts have
not yet been recognized by the federal government. The effect of government inaction has been significant in many reserve communities where there is a shortage of land for housing, wildlife harvesting, economic and natural resource development, and for general needs. The absence of the land to which Indian people are entitled inhibits planning and community development. We received very detailed information on the magnitude of this unsettled issue that unnecessarily damages the relationship between First Nations and the other two governments involved. The government of Manitoba is in debt to the First Nations of this province. This debt is growing constantly and should be paid forthwith. The population at the time of the transfer of the land to reserve status is the legally proper basis for the calculation to be made. The outstanding treaty land entitlement now exceeds one million acres of Crown land. The First Nations have been extraordinarily patient. One should not presume that this will continue indefinitely. They also have been very accommodating in their proposals for settlement. This, too, may not continue. In our view, there is no real justification for a debate or an argument about a "formula." The treaties themselves establish the precise formula to be used. It is the governments which have delayed applying the formula and providing the remaining land as required by the treaties. The federal government has unilaterally increased the size of bands by enacting Bill C-31. The federal and Manitoba governments must take each band as they now find them. The Indian people of Manitoba are entitled to the full amount of land promised by the treaties in accordance with the population at the time the treaty obligations are finally fulfilled. The Manitoba and federal governments should not be permitted any further delays. If the matter is not settled expeditiously, the governments may have no choice but to obtain land from others whom they have allowed to acquire land contiguous to reserves in order to meet their constitutionally recognized obligations. In our opinion, the amount of land to which a band is entitled should be established in light of the band’s population as of the day the land is transferred. Since the Indian population is continuing to grow rapidly through the twin impacts of Bill C-31 and a high birth rate, the size of the outstanding entitlements will continue to increase each year until the treaty commitments are properly honoured. We recommend that:
It is of critical importance that these obligations be fulfilled forthwith. Available Crown land is disappearing, and meeting these obligations will become progressively more difficult in the future. The treaty land entitlement First Nations are not to blame for the delays in fulfilling the Crown’s obligations under the treaties, and they should not be forced into a position in which they must select Crown land that is unsatisfactory or accept financial compensation in lieu of land. It will become more expensive for the federal and provincial governments if they must purchase land on the open market. However, the likelihood of this option increases as Crown land is alienated. We recommend that:
It is also our opinion that the Manitoba and federal governments should pay compensation to those Indian bands with outstanding treaty land entitlements for breaching the treaties. They failed to make the necessary quantum of land available shortly after the treaties were signed. They have acted unconscionably in continuing to breach the treaty commitments. These First Nations have had their rights violated and have lost the benefits of possessing their full complement of reserve lands for almost a century, even though the treaty formulas were clear and should have been implemented readily, based upon the number of band members at the time. The delays have not resulted from any inaction or fault on the part of the First Nations concerned. They should be compensated, therefore, for the hardships they have suffered and the opportunities lost, in addition to finally receiving the reserve lands promised to them during the last century. The commitments in the treaties have been broken and damages should be paid, as would be the case if they were contracts between the government and private parties. The Province, in some cases, has been unjustly enriched by the profit from the sale of natural resources from lands that properly should have been conveyed to benefit the First Nations concerned many years ago. Immediate action to honour the treaty provisions and to compensate for lost enjoyment of the land is vital. Both the Province and the Indian people can ill-afford any further delay in seeing justice done and solemn treaty commitments, now constitutionally protected, properly fulfilled. We believe that the most appropriate method of resolving these disputes is to establish a Treaty Land Entitlement Commission. We recommend that:
In reaching its award of compensation, the commission should be authorized to consider resources that have been exploited by the federal or provincial governments over the years, as well as the cultural, social and economic significance to the individual First Nation of being deprived of rights to this land. We recommend that:
We believe that disputes should be rare regarding the land entitlement issues, as the treaties establish a clear formula. All that is necessary is to determine the population as of the date the additional reserve land is to be set aside. Fulfilling this outstanding obligation should be done forthwith. We believe that a commission with authority to render binding decisions is necessary, as governments have demonstrated through their delay and inaction, for over 100 years in many cases, that they are incapable or uninterested in meeting these solemn obligations. Furthermore, governments currently have the power to delay and this imbalance must be addressed. TOP
The Most Recent Treaty—The Northern Flood Agreement TOP The Northern Flood Agreement (NFA), signed on December 16, 1977, came after more than a decade of heated public controversy in Manitoba. The controversy was protracted and it remains one of the most publicized modern disputes between Aboriginal people asserting their historical rights and a government committed to large-scale natural resource development. TOP
Background TOP Hydro-electric projects in northern Manitoba have been undertaken for many years. In 1960 Manitoba Hydro built a dam at Grand Rapids, where the Saskatchewan River enters Lake Winnipeg. The project flooded the reserve community of Chemawawin, resulting in a relocation of its residents to Easterville. This move has proven to be socially and emotionally disruptive to the people of the band. The relocation was so ill-planned by government and Hydro officials that it caused serious social and economic problems in the community, from which it may never fully recover. The traditional economies of the Grand Rapids and Moose Lake First Nations also suffered from the effects of the flooding. The Churchill River diversion project, which ultimately led to the Northern Flood Agreement, began to take shape in the latter part of the 1960s. The Nelson River is the major outlet of Lake Winnipeg, flowing northeast into Hudson Bay through a series of lakes. The plan was to divert the flow of the Churchill River into the Nelson River and construct power stations on the Nelson. The Churchill would be dammed at Missi Falls at the eastern end of Southern Indian Lake. The lake would then be used as a giant reservoir, ensuring an ample flow of water in the Nelson in the middle of winter, when demand for electricity is highest. The project was huge. It was said that the completely harnessed Nelson would be the largest power development in Canada—bigger than Labrador’s Churchill Falls and British Columbia’s Peace and Columbia river developments. Early reports put the cost at one billion dollars; later reports said three billion. The project would provide power for use in Manitoba and for sale in the United States. Large government-backed energy projects were characteristic of the period. There were many proposals to alter irrevocably the face of the northern landscape. These energy projects meant massive frontier development. All the initiatives helped to fuel the thinking that the Manitoba government should be cashing in on hydro-electric prospects in northern areas for the export market. The Report of the Mackenzie Valley Pipeline Inquiry described such a conflict as essentially between those who viewed the land as a "frontier" and those who viewed it as a "homeland." The projects forced Aboriginal communities to defend their homelands, a fight that fundamentally altered Canadian legal and political views on Aboriginal rights. Aboriginal people began to turn to the courts for assistance and also to demand to negotiate land claims agreements to address the implications of these massive energy projects. This trend was also reflected by the response of Indian and Metis people in northern Manitoba to development proposals. Early in 1973 the Supreme Court of Canada in the Calder case divided equally on the question of the survival of the Aboriginal title of the Nishga tribe in British Columbia. While technically indecisive, the judgment gave strong new legitimacy to Indian claims. Shortly after the Nishga judgment, the federal government announced it would negotiate a settlement of Indian and Inuit claims in limited parts of the country. The Cree of Quebec obtained an injunction in the Superior Court of Quebec against the James Bay hydro-electric project in September of 1973.69 The Quebec Court of Appeal quickly lifted the injunction pending the full hearing of an appeal,70 but the message was clear: the courts might side with Indians. The era of the energy megaprojects faded in the mid-1970s as a worldwide recession took hold. Some of the projects were built, but most were dropped or postponed. Manitoba premier Ed Schreyer was unaffected by these developments elsewhere. He said that Indian people of northern Manitoba should not be able to veto development and suggested the federal government was facing that same issue in the Northwest Territories. He pointed to the James Bay project as demonstrating that the federal government would not interfere with provincial government hydro projects on environmental grounds. The federal Minister of Indian Affairs, Jean Chretien, said he was willing to fund an Indian lawsuit in Manitoba just as he had funded an Indian lawsuit in Quebec. Pressure built on all sides. For the first time in a Canadian dispute involving Aboriginal people, a mediator was brought in to assist the parties to the negotiations. Although an agreement finally was reached, its implementation proved to be far more elusive. TOP
The Terms of the Agreement TOP The Northern Flood Agreement was signed by Canada, Manitoba, Manitoba Hydro and the Northern Flood Committee representing the five First Nations (Nelson House, Norway House, Cross Lake, Split Lake and York Factory) whose reserve lands were to be flooded by the major hydro-electric projects planned. The agreement provided for an exchange of four acres for each acre flooded, the expansion and protection of wildlife harvesting rights, five million dollars to be paid over five years to support economic development projects on the reserves and promises of employment opportunities. The agreement was also to deal with any adverse effects to the "lands, pursuits, activities and lifestyles of reserve residents." The five First Nations were guaranteed a role in future resource development as well as in wildlife management and environmental protection. Certain water level guarantees were made and Manitoba Hydro generally accepted responsibility for any negative consequences that might emanate from the flooding. In return, Hydro obtained the right to flood reserve lands as part of the Churchill Diversion Project. Disputes over any adverse effects were to be settled by arbitration. TOP
Breaches of the New Treaty TOP Manitoba Hydro obtained what it wanted as it proceeded with this massive project. The reaction from Aboriginal people has been far from positive. Only reserve residents were represented in the negotiations and were to receive any of the benefits. Many Metis and off-reserve Indians in the region still complain bitterly that their homes and traplines were destroyed and their hunting and fishing rights violated without any consultation or compensation. Aboriginal people also argue that they were never told of the environmental destruction that would occur. They say that they were never told that graves would be washed away and fish habitats demolished, nor that an entire way of life for what previously had been strong communities would disappear. Over a decade later, they were still voicing their hurt and dissatisfaction to this Inquiry. Rosie Dumas, an elder from South Indian Lake, through an interpreter, told us:
Another elder, Allison Kitchekeesik of Split Lake, through an interpreter, spoke of the future facing the community’s young people:
Payments of $160 million have been made under the Northern Flood Agreement, including approximately $88 million from the federal government. Hydro has recently offered $243.5 million to bring the agreement to an end.71 The majority of the First Nations affected have rejected this offer, saying that some aspects of this modern-day treaty have yet to be fully implemented. The promised partnership concerning future decision making in the area has not been implemented. Again, governments have failed to adhere to all the terms of the treaty. We believe the Northern Flood Agreement is a "land claims agreement" within section 35(3) of the Constitution Act, 1982 and that the rights within the NFA are treaty rights within section 35(1). As a treaty, the Northern Flood Agreement must be interpreted liberally from the Indian perspective so that its true spirit and intent are honoured. We recommend that:
There have been many negative consequences in northern Manitoba over the past 30 years resulting from large-scale hydro-electric and timber development. We believe that if future projects are likely to have significant impact upon reserve lands or the exercise of harvesting rights by Aboriginal people, they should not proceed unless or until consultation has occurred and agreement has been reached with the Aboriginal communities to be affected. Such agreements should address efforts to minimize or eliminate any negative environmental repercussions, promote Aboriginal economic opportunities, and provide suitable alternative lands and financial compensation. We recommend that:
Land Claims TOP Aboriginal people have been distressed about violations of their rights to their traditional territory almost since the arrival of Europeans. The process of negotiating treaties was a necessary response to these complaints in the 19th and early 20th centuries. Treaties, however, were not negotiated regarding all territory in Canada or even in Manitoba. In addition, the reserves that were set aside under treaties have themselves become the basis of further grievances stemming from their maladministration by the Government of Canada. Not only was much of the treaty land entitlement to reserves never properly set aside, but thousands of acres of land which were dedicated as reserves were lost improperly, resulting in many years of petitions to the Crown for redress. Silence was usually the response from the federal government. In 1969 the Government of Canada promised action on treaty violations and reserve land losses as part of its White Paper on Indian policy. Although the motivation was suspect, as this initiative was coupled with a plan to repeal the Indian Act and terminate special Indian status, it did reflect at least some understanding on the part of the federal government that these historic grievances had to be addressed if it hoped to obtain Indian support for the federal objectives. The Calder decision, as mentioned earlier, caused a similar federal awakening to the reality of the continued existence of Aboriginal title in Canada. The government declared its new policy in August of 1973, through which it reiterated its willingness to settle treaty and reserve claims, and added a new openness regarding those claims related to unextinguished Aboriginal title. The government divided all these outstanding grievances into two basic categories: specific and comprehensive claims. However, many land claims, such as those of the Metis in Manitoba, are actually excluded from both categories—leaving them with no process by which they can be negotiated. TOP
Specific Claims TOP There are several basic sub-categories within the broad purview of the federal specific claims policy that exist in Manitoba. Treaty land entitlement is one of these. It has required its own special initiative, due to the necessity to involve the government of Manitoba to transfer provincial Crown land to fulfil these outstanding obligations. Another broad type of specific claim refers to "maladministration" of band assets. This covers instances of theft of band funds by Indian agents, failure to pay proper interest rates on band trust funds held in Ottawa, misdirection of treaty annuity payments and misapplication of band revenue from lease or sale of reserve land. Several First Nations in Manitoba, including Roseau River and The Pas, have this type of claim. The last sub-category of claim relates to the illegal taking or damaging of reserve land. It covers a wide variety of circumstances, including instances of improper taking of reserve lands by the federal government and its agencies, as well as expropriations committed in accordance with the law but for which inadequate or no compensation was provided. There are also many claims relating to reserve lands that were sold without a surrender from the relevant band, or where the provisions of the Indian Act governing the surrender process were breached. There are a surprising number of claims that flow from a valid surrender of reserve land in which the sale proceeds were not allocated to the band. The lands were sold for far less than fair market value, or they were never actually sold but simply taken by the federal or provincial government. A number of Manitoba First Nations have claims of this nature, including Peguis, Keeseekoowenin, The Pas, Roseau River, Gambler and Rolling River. The range of specific circumstances appears never-ending. One reason has been the particular attractiveness of reserve lands to governments for public and private purposes. Many reserves have been singled out for use as rights of way for pipelines, railways, hydro transmission lines, highways and bridges. Reserve lands have often been taken for government buildings and private developments of an industrial, commercial or recreational nature. As a result, significant quantities of reserve land have been removed from the beneficial use of First Nations, frequently in violation of the law. First Nations complained about the limited scope of the initial federal policy on specific claims, which ultimately resulted in the release of a slightly modified policy in May of 1982, entitled Outstanding Business. It summarized a list of eligible claims and divided them into two categories: "lawful obligations" and "beyond lawful obligations." The latter label is completely inaccurate and misleading, as the policy’s definition of these claims covers violations of the law for which the Government of Canada would be held responsible. As such, they are not "beyond" the lawful obligations of the Crown. The rationale for having a specific claims policy has changed over time. In the White Paper of 1969 the purpose behind addressing these claims, and in appointing an Indian Claims Commissioner to study the matter, was that the "sense of grievance" of the Indian people "influences their relations with governments and the community and limits their participation in Canadian life." Therefore, it was felt that any claims which gave rise to "lawful obligations" should "be recognized ... and dealt with as soon as possible" to remove the sense of grievance. This would make it far easier to obtain Indian support for the transfer of title for reserves to the bands, for the repeal of the Indian Act, for having the provinces "take over the same responsibility for Indians that they have for other citizens," and for "equitably" ending the treaties so as to remove "the anomaly of treaties between groups within society and the government of that society." Although the White Paper and its philosophy have been abandoned, the desire to reduce this Indian "sense of grievance," with the problems it produces for normal political, social and economic processes in the country, is still a motivating factor underlying the continued existence of the specific claims policy. In addition, there is a realization today that the honour of the Crown has been besmirched badly by the immoral and sometimes illegal actions of the federal government regarding reserve lands and band assets for over a century. Settling such claims would help to remove these stains and improve Canada’s image abroad. That image has been severely tarnished by justifiable complaints of injustice from Indian organizations over the last two decades. Claims agreements are also a means to provide First Nations with the resources to which they are entitled so as to promote their economic and social well-being. The final rationale stems from the necessity to discharge proper and long-standing obligations of the Government of Canada. This is a matter of good public policy but also reflects, at least in many cases, a legal imperative. The federal government favours negotiation as a more fair and lower cost alternative to hundreds of court cases that could overwhelm our justice system. Many of these cases might result in compensation being ordered against the Crown in any event. Specific Claims in Manitoba According to the Treaty and Aboriginal Rights Research Centre, as of June 1991, 18 specific claims had been submitted to the federal government under this policy by Manitoba First Nations over the years. Only one Manitoba claim has been completely settled under this policy: a claim by The Pas Band for reserve land lost to the Pasquia Reclamation Project. Lands were taken for irrigation works with the clear and stated expectation that a legal surrender or expropriation would be used and compensation paid. The obligation to compensate was put off and then forgotten. The obligation to settle this claim did not require a special land claims process because the only issue was the value of the land. The claim was submitted in August 1984 and settled on March 13, 1987, through the payment by the federal government of approximately $431,000 in compensation. One other of the 18 claims in Manitoba was partially settled in May 1991. The Keeseekoowenin First Nation had 290 hectares of reserve land wrongfully included in the Riding Mountain National Park in 1930, without their consent and contrary to law. Band members were evicted forcibly in 1936 and relocated 28 kilometres to the southwest, and their homes were burned to the ground. Years of protest finally have met with success as the federal negotiator has recommended to the Minister of Indian Affairs that the land be restored to reserve status. Further negotiations will be necessary to reach agreement on the appropriate level of compensation for loss of use of the land for the last 61 years, as well as agreement over a second parcel also taken for the park. Two other claims, involving the Peguis and Roseau River First Nations, were rejected by the federal government. Three more claims affecting four First Nations are currently in negotiation. The Brokenhead First Nation’s claim reached the agreement-in-principle stage three years ago. The remaining 11 claims are at various stages in the specific claims process, but have not yet been accepted as valid claims by the federal government. Other possible claims are still being researched. Most of these 18 claims have to do with reserve lands that were taken by the Crown without a proper surrender, or for which adequate compensation was not provided. The national figures point to the same picture: over 575 claims have been filed to date and less than 50 have been settled after two decades. The settlement rate has not even kept pace with the submission of new claims and has resulted in dozens of claims being pursued through litigation while others languish for years, awaiting official federal action. The federal specific claims policy has not been one that produces many settlements. Criticisms of the Specific Claims Process This policy has been criticized extensively on a number of grounds. There is a very restrictive federal interpretation of "acceptable" claims, with many alleged violations of law, justice and fair dealing excluded. Entrenching constitutional protection for Aboriginal and treaty rights has had no apparent impact upon how federal officials interpret the specific claims policy. Many treaty rights violations, such as those concerning hunting and fishing, cannot even be pursued within this process. The Department of Justice is assigned contradictory roles as it defends the government position while serving as judge of the validity of the claim. The Department of Indian Affairs is also in a conflict of interest position, as it is the defendant while serving as the fiduciary and the funder of the claimants. There is a lack of appreciation by the federal government that it is dealing with land claims within the context of a constitutional relationship between First Nations and the Crown. The federal fiduciary obligation to act in the best interests of Aboriginal people seems to be ignored both in the assessment of the validity of a claim and in determining what constitutes adequate compensation. First Nations also complain about the type of compensation. They are offered money, while what they want is the restoration of their original land, or at least comparable land nearby. The amount of cash compensation usually is insufficient to buy the land back in its developed state. A major source of complaint is the absence of an appeal mechanism for First Nations when the Minister of Indian Affairs rejects a claim or the federal compensation offer is viewed as inadequate. This is particularly troublesome in a situation where the federal government is in a conflict of interest position in which it is the judge and jury as well as defendant and author of the laws that apply. The only option available to a First Nation at that point is to initiate litigation, with all the disadvantages this involves, including the federal government’s ability to assert technical defences, such as asserting that a particular First Nation waited too long to sue. These criticisms, among others, have been voiced time and time again by First Nations all across Canada with almost no impact. The Specific Claims Branch of the Department of Indian Affairs and the policy it is required to implement have not helped the federal government to achieve its professed goals. Not settling claims has exposed the government to criticism and is aggravating, rather than reducing, the Indian sense of grievance. It is in Canada’s long-term interest, in our opinion, to settle claims. Governments which are resistant to the formulation of a workable and acceptable policy are doomed to encounter more and more vivid displays of Aboriginal discontent and to have settlements forced upon them by the courts. The events of last summer, involving the Mohawks of Kanesatake and their dispute with the municipality of Oka over a pine forest that once was part of the community’s territory, put the federal specific claims policy under a microscope. The Mohawks had submitted a specific claim in the late 1970s regarding this territory. It was rejected on the basis that the original owner of the land had been the Catholic Church, which was free to sell off the land as it wished. Denying the claim, however, had not caused it to go away, nor had the sense of grievance among the Mohawks been assuaged. The Indian Commission of Ontario (ICO) undertook a review of the specific claims policy. The ICO tabled its 106-page report with 38 recommendations on September 24, 1990. The Minister of Indian Affairs then authorized a national chiefs’ task force to investigate the matter, using the ICO report as its basis. The Assembly of First Nations also examined the policy and issued its report on December 16, 1990. This flurry of activity has had some effect as Prime Minister Mulroney announced several changes in a major address on April 23, 1991 to the First Nations Congress of British Columbia. The prime minister stated that "a fast-track process" will be introduced for dealing with land claims of $500,000 or less. The human and financial resources assigned to specific claims will quadruple over the next five years. Pre-Confederation land claims will be accepted for the first time. A joint Indian-government working group is to be created to examine the many process and policy criticisms that remain unaddressed by these few changes. Finally, the prime minister declared that an "independent dispute resolution mechanism" would be established in the form of "a specific land claim commission." While these promises are a positive sign, they fall far short of meeting Aboriginal demands or of resolving many of the criticisms we heard. The concept of the "fast track" is fraught with difficulties when it is tied to a maximum level of compensation. This suggests that many claims filed years ago now will again be put off if they involve more than $500,000 worth of land affected by illegal federal conduct. Federal attention will be given to small claims that can be settled relatively inexpensively. This policy, therefore, may encourage more injustice and frustrate some First Nations. It also provides a powerful club to federal negotiators who can tell poverty-stricken First Nations that they can obtain priority for a quick settlement if they will accept less then $500,000, regardless of what a fair agreement might entail, or else their claims will be deferred to some unspecified time in the future. This does not appear to reflect the fiduciary obligation on the Crown in right of Canada. What Can Be Done? At present, the parties have unequal bargaining power in a process that completely favours the federal government. Negotiations between unequals will rarely work. The stronger party will always be tempted to use its advantage. This inequality must be eliminated. There is also a lack of commitment on the part of the government to settle claims. In practice there is little pressure on the federal government to move on specific claims. The lack of action on treaty land entitlement in Manitoba, and the disruption to the negotiations caused by each change in the minister or the party in power in the federal or provincial government, demonstrate this problem. With First Nations spread across the country, each having its own individual specific claim, it is difficult for them to sustain sufficient pressure through lobbying to achieve positive and speedy action on any of the particular claims. This fuels the belief that claims are only settled when there is a show of public anger or violence such as that witnessed in the summer of 1990 in Oka, or only settled for exceptionally well organized First Nations. Protests are not a preferred approach and will not result in a strong, ongoing federal commitment to settle all outstanding claims. Settlement of these claims should be made a high federal priority. We recommend that:
The establishment of a land claims commission or tribunal is long overdue. However, the prime minister’s announcement is extremely vague. Bills were introduced in Parliament in 1963 and 1965 to establish a claims tribunal tailored on the model of the United States Indian Claims Commission. Both bills died on the order paper and they lacked Indian support, as the American experience was widely criticized by tribal leaders there. It is vital, therefore, that the new federal tribunal not displace the negotiation process, because it is the only vehicle through which the claimants possess any significant degree of direct involvement and control. The proper role for such a commission, in our opinion, is to oversee the negotiations when requested to do so to ensure that good-faith bargaining occurs and to serve as an appeal mechanism when claims are rejected by the minister or when negotiations completely break down. Thus, we favour a situation in which the claimant can invoke the jurisdiction of the commission so as to avoid the undermining of good-faith bargaining. Furthermore, the commission should have authority to resolve the matters referred to it, rather than to act just in an investigatory and facilitating role. This has been the experience in Canada with the former Indian Claims Commission, created by the White Paper in 1969, and the Manitoba Treaty Land Entitlement Commission, along with the Indian Commission of Ontario that has existed since 1978. This new body needs to possess all the hallmarks of any administrative tribunal: to be fully independent, permanent, respected by all sides, judicial in its function and adequately funded to meet all the demands placed upon it. In addition, it should include a number of commissioners from across the country so that it can sit in smaller panels to handle the many claims that will probably come forward. Half its members should be Aboriginal people chosen from a broad range of backgrounds and experience. The very positive experience of the Waitangi Tribunal of New Zealand serves as a valuable guide on this matter. The tribunal should be authorized to establish its own rules of procedure and to impose deadlines on the federal government to respond to claims so that matters move forward expeditiously. We recommend that:
We believe that the mere existence of a tribunal with the mandate and power that we have proposed will assist in improving the negotiating process immensely. It will serve to prod federal negotiators to move quickly and to take more realistic positions. While we believe that the proposed tribunal would have a great deal of work before it, as there are probably in excess of 2,000 claims across the country, many of which might end up before this board, we do not believe that it is necessary for it to become a permanent entity. We recommend that it be created by federal statute containing a clause requiring an independent review and evaluation to be conducted every five years. This report should be tabled in Parliament. This should foster a greater likelihood that necessary improvements will be made while ensuring that it does not outlive its usefulness. TOP
Comprehensive Claims TOP The federal policy on comprehensive claims was released by Indian Affairs minister Jean Chretien on August 8, 1973 as a result of the Calder decision of the Supreme Court of Canada seven months earlier. The policy described its purpose and scope in these words:
This policy document has been demonstrated to contain inaccuracies. While the claims are founded on unextinguished Aboriginal title, they are not limited to the four regions identified. The federal government is also currently negotiating with the Labrador Inuit, and the Atikamekw and Montagnais in eastern Quebec. Claims are pending from the Algonquins of southwestern Quebec. The Micmacs and Malecites of the Maritimes and Newfoundland also assert Aboriginal title, as do the Mohawks of the St. Lawrence Valley. Other comprehensive claims have been identified in Ontario and the Prairies. The Dakota and the Chipewyan argue that they possess comprehensive claims in southern and northern Manitoba, respectively, which have not yet been accepted by either the federal or provincial government. It is also apparent that the claims do not necessarily relate to "loss of traditional use and occupancy" of certain lands, as many of the Aboriginal groups continue to occupy and use their historic territory. The policy refers solely to the rights of Indian and Inuit people, thereby ignoring the Aboriginal title claims of the Metis. The Metis are involved, in fact, as a direct party along with the Dene to the comprehensive claim regarding the Mackenzie Valley of the Northwest Territories. Non-status Indians are also a party along with the 12 First Nations in the Yukon claim. The federal government, however, continues to refuse to accept Aboriginal title claims from the Metis and non-registered Indians outside the two territories. As a result of Aboriginal complaints, the federal government issued a slightly revised version of its comprehensive claims policy in December of 1981, entitled In All Fairness. Although comprehensive claims were settled in the James Bay region in 1975 (later extended to the Naskapi Indians in northeastern Quebec in 1978) and the western Arctic in 1984, very vocal dissatisfaction with the terms of the policy continued. The Minister of Indian Affairs appointed a task force to investigate the matter and it issued a report in 1986, entitled Living Treaties: Lasting Agreements. Aspects of this report were adopted by the federal government in its Comprehensive Land Claims Policy, released in early 1987. Aboriginal groups have continued to criticize this revamped policy, and progress toward reaching agreements has moved at a glacial pace. Even reaching an apparent final settlement is not a guarantee that the claim is resolved. Settlements in the Yukon and Mackenzie Valley came unglued in 1990. The complaints have sparked some further revisions, such as the prime minister’s announcement in September 1990 that the federal government would lift its artificial limit of negotiating only six comprehensive claims at any one time. The British Columbia government’s decision of August 1990 to participate in these claims negotiations is also a major breakthrough. The federal government, however, still takes the position that there is no outstanding Aboriginal title in Manitoba. In view of the fact that the Dakota people of this province have never signed a treaty (despite the fact that the federal government was willing to do so in the 19th century) and of the assertion of Aboriginal title by the Metis and the Chipewyan, the resolution of comprehensive claims is likely to gain importance in Manitoba. The unresolved nature of Aboriginal title to water and beds of water may also constitute comprehensive claims. We recommend that:
We realize that if the experience of the federal policy elsewhere in Canada holds true, the resolution of land claims in Manitoba based on Aboriginal title will be a slow, arduous process. Therefore, we believe that the federal policy and process should be changed to facilitate the conclusion of agreements. One option to consider is a process of supervised negotiations. The presence of an independent party that can be called upon to intervene at appropriate moments is vital. It is much better to resolve these issues by way of negotiated agreements, rather than imposed solutions. There are still, however, important matters that may not be susceptible to resolution through negotiation when the bargaining power of the parties is as unequal as it is at the present time. This is true particularly where a relevant government party refuses to negotiate at all or does so in a fashion that demonstrates bad faith. We recommend that:
If one party were to complain that another was refusing to bargain or was bargaining in bad faith, a complaint could be made to the tribunal. The tribunal should be given the authority to convene a hearing, to receive all relevant evidence and to render a decision on the complaint. Where the allegation is upheld, the tribunal would be empowered to issue a declaration that a party has been bargaining in bad faith and to give ancillary relief, such as requirements to provide critical information, to adhere to timelines, to attend negotiating sessions, to table an offer of settlement, to respond to an offer, or to declare that a subject is appropriate for negotiation. At any time after negotiations have begun, any party should be able to refer the matter to the tribunal for a full hearing on the merits of the claim and the relief to be sought. TOP
Natural Resources TOP There are a number of issues of considerable concern to the Aboriginal people of this province relating to the use of natural resources. There are three major aspects to these concerns: the infringement by federal and provincial policies and legislation of the exercise of Aboriginal and treaty rights by Aboriginal people; the negative repercussions for them produced by large-scale exploitation of renewable resources; and the ongoing disputes regarding the exact scope of constitutionally protected rights and their practical import for the decision-making process on the management of natural resources. One of the major irritants between Aboriginal people and government has been the Migratory Birds Convention Act. The Act was passed by the federal government in 1917 to ratify an international convention between Canada, the United States and Mexico. The intention of the convention was to protect migratory birds and their nesting areas. The Act regulates seasons during which migratory birds may be hunted. When the legislation was enacted, conservation officers in Manitoba believed that it did not apply to status Indians. Consequently, Indians were not prosecuted under the Act. In the 1970s, however, this policy changed and, subsequently, many status Indians were prosecuted and convicted for hunting migratory birds out of season. The Act became a symbol for Aboriginal people of government disregard for treaty and Aboriginal rights. For example, Peter Sinclair of Pukatawagan said to us:
Given the importance of these issues and their potential for influencing the Aboriginal-Crown relationship in negative ways, we believe that it is important for us to make a few comments and observations. TOP
Hunting, Fishing and Trapping Rights TOP Up to Sikyea Modern Aboriginal and treaty rights litigation began in Canada in the 1960s with a series of hunting and fishing cases. The first major decision of the Supreme Court of Canada on these issues was in R. v. Sikyea, [1964] S.C.R. 642. While the greater part of this decision concentrated upon whether a mallard was a wild duck so as to be regulated by the Migratory Birds Convention Act, the court agreed with the decision of the Northwest Territories Court of Appeal that explicit treaty rights were subject to being overridden by federal statutes. The results of the initial set of judgments can be generalized in three basic propositions:
While the treaty rights to hunt or fish were protected against provincial game laws, they were held to be subject to limitations imposed by federal legislation such as the Migratory Birds Convention Act and the Fisheries Act. Trying to Move Away from Sikyea The application of the Migratory Birds Convention Act had serious effects on Aboriginal groups in Canada, who traditionally relied upon migratory birds as a plentiful and reliable source of food. This Act became a leading point of dispute between Aboriginal leaders and the federal government when conservation officers began to enforce it against Indian, Inuit and Metis peoples in the 1950s in the Northwest Territories and in the 1970s in Manitoba. In spite of repeated federal pledges to abide by the treaties, the Migratory Birds Convention Act still conflicted with Aboriginal and treaty rights. Repeated protests failed to change the law so as to bring federal legislation into line with federal promises. In practice, the law itself was not acceptable even to governments, who sporadically followed a policy of limited and selective enforcement. A moratorium on charges against treaty Indians was in place in Manitoba for several years, although it was not binding on the Crown.72 There is also reason to think that the Sikyea line of cases no longer is acceptable to the Supreme Court of Canada. In various recent decisions, the Supreme Court has laid down three innovative rules:
Using Section 35(1) to Reverse Sikyea The Constitution Act, 1982 has provided an opportunity for the courts to depart from the previous jurisprudence and to reconsider the status of Aboriginal and treaty rights in relation to the traditional activities of hunting, fishing and trapping, and their susceptibility to federal law. As discussed earlier in this chapter in relation to Aboriginal and treaty rights generally, the primary conflict between individual Aboriginal persons and the federal or provincial governments has been concerning the harvesting of wildlife. Conservation officers seek to enforce the general fish and game legislation against people who firmly believe they have guarantees from the Crown that they can continue to hunt, fish and trap as their ancestors have done since time immemorial. This conflict in perspectives frequently results in the laying of charges against Aboriginal persons and the seizure not only of what they have harvested, but also of the tools of their trade (i.e., nets, rifles, boats, vehicles, etc). The Supreme Court of Canada in the Sparrow case has made it clear that subsection 35(1) of the Constitution Act, 1982 is to be given a broad, purposive interpretation in favour of Aboriginal people, and ensures a dramatically new level of legal importance to Aboriginal and treaty rights. In the Sparrow case, the court established a detailed test that was to be applied to the federal Fisheries Act in individual cases to determine if the applicable provisions of that Act, or the regulations enacted for each province, were operative when they conflicted with Aboriginal and/or treaty rights. The Supreme Court lacked sufficient evidence in the Sparrow case to be able to decide if the charge could be sustained. The court did conclude, however, that the test it outlined could be met in certain circumstances so that Aboriginal wildlife harvesting is not unregulated completely. The Crown has to demonstrate that a specific restraint on Aboriginal and treaty rights is justified by concerns that truly warrant the overriding of constitutionally protected rights. While the test imposes a high standard upon the party seeking to uphold the federal or provincial law, it is not a completely insurmountable one. The Supreme Court implies that legislative provisions which are essential to the preservation of a species, to the protection of public safety, or to the allocation of wildlife among competing Aboriginal groups probably would be sustained in the future. Simple assertions by the Crown that the legislation is in the "public interest" or is necessary to distribute harvesting rights fairly among all potential users are unacceptable. Our courts in Manitoba have spoken clearly in relation to the Migratory Birds Convention Act in the Flett case. They have declared that this Act is of no force or effect to the extent that it conflicts with Aboriginal and treaty rights. They have ruled further that the Act did not extinguish any Aboriginal and treaty rights that are now entrenched in the Constitution. It is important to mention, however, that these cases have dealt with instances of Indians hunting or fishing for food, social and ceremonial purposes. The law is not clear regarding commercial harvesting activities. The Ontario Court of Appeal has stated in R. v. Agawa, [1988] 3 C.N.L.R. 73, that the Fisheries Act still is valid to regulate commercial fishing, even where this is an activity encompassed within a treaty right. While the Supreme Court in Sparrow cited aspects of this decision with favour, it also developed a different and more stringent test. On the other hand, the Supreme Court did deny leave to appeal the Agawa decision on November 8, 1990. The same court earlier that year upheld a conviction for the sale of a bearskin by a treaty Indian in R. v. Horseman, [1990] 3 C.N.L.R. 95, ruling that the Natural Resources Transfer Agreement overrides treaty rights. While the treaty in question seemed to protect commercial hunting, this constitutional agreement from 1930 has been interpreted as exempting Indians from provincial laws only when harvesting food. Hunting, fishing and trapping for commercial purposes are economic activities vital to the prosperity of many Aboriginal communities. There is extensive evidence available that a lively trade in fish and game existed prior to contact with Europeans, so as to constitute an Aboriginal right. Many treaties were negotiated between Indian nations and the Crown on the basis that commercial harvesting would be permitted to continue. Thus, we conclude, as a general proposition, that hunting, fishing and trapping for commercial purposes are "recognized and affirmed" as "existing aboriginal and treaty rights" within the meaning of subsection 35(1). At the same time, it is necessary to manage these activities to ensure that priority in the allocation of natural resources is granted to Aboriginal people who are hunting and fishing for social, ceremonial and food purposes. It would be preferable for Aboriginal people and their representative organizations to be a partner with federal and provincial government departments in the establishment of appropriate regulations and standards. Co-management of natural resources is the only suitable method to ensure that the populations of animals, fish and birds not only are conserved, but also are encouraged to flourish. This clearly will benefit Aboriginal people, who are entitled to first priority in any allowable harvesting activities, and other Canadians, as well. It will promote wildlife habitat protection and enhancement of the existing stock of harvestable species. A New Direction Treaty and Aboriginal rights have continued to be denied on a daily basis by conservation officials when these rights appear to them to be in conflict with the federal Migratory Birds Convention Act and Fisheries Act. Even after the breaches of Aboriginal and treaty rights were described clearly in Supreme Court of Canada decisions in the 1960s, there was no legislative redress. Since the initial group of cases, the attitude of the Supreme Court of Canada to Aboriginal and treaty rights has shifted dramatically, although it has not yet expressly reversed its previous holdings and seems somewhat reluctant to do so in the area of hunting and fishing rights. Lower courts now are devising artful ways of distinguishing the earlier Supreme Court cases, and using section 35(1) of the Constitution Act, 1982 to give legal force to treaty and Aboriginal rights to hunt and fish, subject only to reasonable restrictions for conservation and equitable management. The Supreme Court has given clear direction to federal and provincial governments, through the Sparrow, Sioui and Simon cases in particular, that the law has changed quite dramatically with the arrival of the Canadian Constitution. The former regime, which gave limited protection solely to treaty rights in relation to provincial law, is gone forever. The challenge now is for federal, provincial and Aboriginal leaders to work together as partners and good managers of fish and game in the best interests of all. Aboriginal people have had expertise as true conservationists for thousands of years that can be effectively applied in a way that meets their needs and respects the priority to be given to their rights, while also benefiting all other members of society. We recommend that:
The Special Issue of Wild Rice TOP Wild rice is a staple food for many Aboriginal people and its harvesting provides a significant commercial activity for many Manitobans. For most of Manitoba’s history, the harvesting of wild rice was not regulated by the Province in any way. As a result, Aboriginal people exercised their traditional harvesting activities free from any provincial restraints. Recent attempts at provincial regulation have led to charges of mismanagement by some harvesters, largely centred around questions of the Aboriginal role in relation to expansion, mechanization and capitalization of harvesting activities. The granting of licences to non-Aboriginal people resulted in protests from Aboriginal harvesters in Ontario, who claimed violation of their treaty rights. Conflicts between Aboriginal and non-Aboriginal harvesters have continued in both Manitoba and Ontario, while the positions taken by the respective provincial governments have, in some ways, exacerbated the tension. Management Practices in Manitoba Under the Crown Lands Act, and then the Wild Rice Act after 1984, Aboriginal people were protected by exclusive leasing of wild rice areas to Aboriginal co-ops in the Whiteshell region of the province, and by the block system for lakes traditionally harvested by five Indian reserves. In 1981, the Province cancelled leases in the Whiteshell, allowing only hand-harvesters in the area, thus effectively eliminating non-Aboriginal competition. Aboriginal people, except for those who had mechanical harvesters, generally saw this policy as favourable. The block system set apart land and water traditionally used by five reserves for harvesting. A report commissioned by the Manitoba government noted that Indians wanted more control. The report was silent, however, on the appropriate extent of that Indian control. The policy of granting a "leading role" to Aboriginal harvesters was instituted by the Province as an affirmative action program designed to ensure that all new licences would be granted solely to Aboriginal people. The program, however, did not recognize any basis in Aboriginal or treaty rights for granting preferred treatment to Aboriginal people over non-Aboriginal competitors. The Wild Rice Act of 1984 This Act provided for regulation and management of the growing wild rice industry, designating some areas for exclusive hand-harvesting, and others for exclusive Aboriginal use. Aboriginal people were still permitted to harvest anywhere on Crown lands, providing it was for household purposes. Following non-Aboriginal challenges to the leading role program, the Province sought and received approval from the Manitoba Human Rights Commission for an affirmative action program. That program was then challenged in Manitoba’s Court of Queen’s Bench by non-Aboriginal wild rice harvesters who complained that they were not being given a fair chance to compete for the licences. The Department of Natural Resources argued that development of wild rice was a new phenomenon in which the Aboriginal community would require assistance to achieve economic benefit. The judge noted that some non-Aboriginal applicants had been harvesting for two or three generations and no previous program had denied an existing right to those outside the target group. The affirmative action program was struck down as not being in compliance with the Human Rights Act: Apsit v. Manitoba Human Rights Commission, [1985] 37 Man. R. (2d) 50 (Q.B.). The decision was appealed to the Manitoba Court of Appeal, but leave was refused on the basis that the Act had been repealed and replaced with a new one: [1988] 55 Man. R. (2d) 263. The Present Situation The issue of wild rice harvesting has never been described by the government of Manitoba as an Aboriginal or a treaty right. Although the Wild Rice Act does refer to these rights, it does so only in the context of saying that the Act is not intended to derogate from those rights. This is not the same thing as accepting that such rights exist in relation to wild rice and that provincial jurisdiction is restrained. Treaties explicitly promised that Aboriginal people were to retain their traditional economic pursuits in the form of hunting, fishing and trapping. According to some academics and Aboriginal groups, the Paypom Document, which contains a record of oral negotiations between a representative of the Crown and Chief Paypom, transcribed in 1873, sets out the "terms" of Treaty 3 as they were explained to the Indian signatories. The document is also seen as a narrative description of the treaty promises from the Indian perspective. Part of the document reads, "the Indians will be free as by the past for their hunting and rice harvest." Aboriginal people have argued that this document relates a treaty promise and has equal status to the written terms of the "official" version of Treaty 3. On this basis, the provisions would supersede provincial laws to the extent of any conflict. While the jurisprudence clearly supports such an interpretation in reference to treaties generally,73 the exact status of the Paypom Document remains unresolved. As the legal force of the Paypom Document is a subject of litigation, we cannot comment on the strength of this argument. Even where treaties are silent on the issue of wild rice, it is possible to demonstrate that the parties expected traditional economic pursuits to continue. It would be in keeping with recent court rulings to assume that references to hunting and fishing could extend to include other traditional economic pursuits such as the harvesting of wild rice. Regardless of the status of wild rice as a treaty right, none of the treaties in force in Manitoba expressly extinguished the Aboriginal right to gather wild rice. The onus rests on the Crown to prove that this Aboriginal right was terminated lawfully. Failing such proof, the right to harvest wild rice continues to exist and now would have constitutional protection. While not describing harvesting wild rice as an Aboriginal right, the Province has confirmed an Aboriginal role in the industry. It was made clear that provincial regulations are not to affect treaty and Aboriginal rights. The use of an affirmative action program targets Aboriginal people as impoverished, not as holders of special legal rights which are protected constitutionally. Affirmative action programs are also fundamentally transitional in nature, as they are designed to assist a targeted group temporarily until it is no longer disadvantaged, at which point the program will be withdrawn. Therefore, the use of a human rights orientation is inappropriate in this situation. Aboriginal people see the harvesting of wild rice as a traditional occupation which their ancestors never would have given up intentionally at the signing of the treaties. While the provincial legislation has recognized an Aboriginal role in the industry, the Wild Rice Act gives no assurance that this role will continue as a matter of right in the future. In our opinion, based upon a review of the information before us, the right to harvest wild rice is, at least, an Aboriginal right. We believe that this Aboriginal right encompasses both personal consumption and commercial purposes. This right can be exercised on reserves and on Crown lands. As with other Aboriginal rights, it now has constitutional protection. We recommend that:
Timber Rights TOP An issue that has received almost no attention in Canadian courts or in government policy is the position of Aboriginal people regarding the harvesting of timber. It is clear, however, that large-scale forestry operations can have negative effects upon the exercise of Aboriginal and treaty rights in relation to land usage and wildlife harvesting. There are really two facets to this issue. First, what historic rights do Aboriginal people possess as users of timber? Second, do their Aboriginal and treaty rights entitle Aboriginal people to oppose or regulate forestry operations in some way? Beyond that, the precise parameters of Aboriginal and treaty rights to harvest timber are far from certain. It is clear, however, that First Nations do possess full rights to all timber on reserves, which are regulated in part by sections 58(4) and 93 of the Indian Act. The Supreme Court of Canada has accepted the right to cut trees for firewood for ceremonial purposes as a treaty right in R. v. Sioui, [1990] 1 S.C.R. 1025. The other issue cannot be answered definitively by a review of the case law. While the British Columbia courts have granted to First Nations a number of interim injunctions to stop logging, these have all been in the context of preserving the status quo, pending a trial decision on Aboriginal title claims involving the land to be logged. Perhaps the closest case comes from the Court of Appeal in British Columbia in Saanichton Marina Ltd. v. Claxton, [1988] 1 W.W.R. 540 (B.C.S.C.); affirmed 36 B.C.L.R. (2d) 79. There, the court granted a permanent injunction to prevent the development of a tidal bay marina that would have destroyed a fish bed and impinged access across the foreshore to the bay. The court concluded that pre-Confederation treaty rights prevailed over private property rights exercised pursuant to a provincial licence. In our view, Aboriginal people possess, at the very least, a right to harvest trees for ceremonial and personal purposes. In addition, Aboriginal and treaty rights to hunt, trap and fish must not be infringed or restricted by logging activities that disrupt the habitat of fish and game. Allowing such disruptions to occur unchecked would be tantamount to rendering the constitutionally protected Aboriginal and treaty rights meaningless. Aboriginal people have an interest in off-reserve forests that must be respected. Forestry management could best be realized, in our opinion, by co-management agreements between the Province and the Aboriginal groups affected. We recommend that:
Water Rights TOP Like timber, the subject of rights to water for Aboriginal people is uncertain. It is similarly multifacetted in terms of both the rights to utilize this essential natural resource and to prevent others from exploiting it in a manner that harms the interests of Aboriginal people. Once again, the position on Indian reserves is unique. Since reserve lands fall within exclusive federal jurisdiction, no provincial legislation can encroach upon any water rights attached to those lands. The determination of whether reserve boundaries include adjacent waters will depend upon precisely how and why each reserve was created, upon the survey that was conducted and upon the original description of each reserve. Since most reserves were situated next to bodies of water for fishing, transportation and domestic consumption purposes, it is logical to infer that the reserve included at least a portion of the surrounding waters as well as the land itself. The United States Supreme Court has favoured this view for almost a century: Winters v. United States, 207 U.S. 564 (1908). The American jurisprudence recognizes that reservation users can pre-empt others from using the same water, even when those other parties have been using it for many years. The basic rationale stems from the fact that, while the Indian nations surrendered most of their territory by treaty, this did not include water rights unless the treaty expressly stated that effect. The American courts concluded that the Indian nations must have intended, as did the federal government, that the land base was to be viable economically so as to meet all their present and future needs. This entails the right to use water for agricultural and domestic purposes. The U.S. government has been purchasing the Indian title to bodies of water since the late 1700s, as they have regarded Aboriginal title as applying to waterways as well as to land. Recent Aboriginal title claims settlements in Canada also address the issue of water rights. The Aboriginal parties expressly surrender their interest in beds of waters within the territory in exchange for a wide variety of rights and benefits. The presence of these provisions demonstrates the necessity to recognize the existence of the Aboriginal title interest in the first place. We believe that the legal principles established in the American case law, which recognize Aboriginal rights to lands under waters, applies equally in Manitoba. Therefore, Aboriginal title continues in force unless and until it can be demonstrated by the Crown that it has been surrendered validly by treaty. In addition, we have concluded that many of the reserves established pursuant to the treaties include adjacent waters. First Nations also possess riparian rights. This means that First Nations and the Metis have the legal authority to protest any use of water that diminishes the quality or quantity of water available to them. The existence of these Aboriginal rights to water, of course, may have a significant impact on those hydro-electric projects throughout the province that dramatically affect water levels or water quality. All environmental management licences that permit companies to pollute waters should be subject to Aboriginal water rights. Disputes over water rights in the U.S. have led to protracted litigation and negotiations between tribal and state governments. Clearly, it would be preferable if Manitoba and Canada could avoid endless lawsuits and conflict by recognizing the rights of Aboriginal people in this regard and resolving conflicting interests through amicable negotiations. We recommend that:
Subsurface Resources TOP The Province of Manitoba currently claims a 50% share in the "minerals" that are extracted from Indian reserve lands. The remaining one-half interest is received by Canada to hold for the benefit of the First Nation concerned. This is a result of section 12 of the Manitoba Natural Resources Transfer Agreement, which incorporated terms of the Indian Reserve Lands Agreement of 1924 between Canada and Ontario. The effect of the provision is that the Province can demand half the royalties, rent or sale proceeds that come from any minerals that are developed on a reserve by a third party. The term "minerals" is not defined, other than by way of reference to it including "precious minerals" in paragraph 2 of the Ontario agreement from 1924. This arrangement was reached between the federal and Manitoba governments in 1929 without the consultation or consent of First Nations. This provision has inhibited the potential for mineral development on reserves and has been the subject of complaint by First Nations over the years. We see no basis for the Province of Manitoba to claim any interest in minerals on Indian reserves. Accordingly, we believe that the Province should relinquish its interests in surface and subsurface minerals on all reserves. Any future reserve lands set aside from provincial Crown lands should be free from any continuing provincial interest, as well. Under the agreement-in-principle concerning treaty land entitlement reached in 1984, the government of Manitoba agreed to waive this right. The Province does not possess a right to share in mineral development in reference to Treaty 3 reserves. We do not believe that the federal government ever had the authority to relinquish a 50% interest in these resources without compensation to First Nations in Manitoba. This was a violation of its fiduciary obligation to Aboriginal people. We recommend that:
The Special Position of the Metis TOP The Manitoba Act, 1870 was negotiated by the Metis in part to protect their rights to land. Section 31 was included to guarantee that the Metis retained a sizeable portion of the land base they were occupying then in the Red River Valley. It stated:
The constitutional commitment of 1.4 million acres for the Metis in the Manitoba Act did not, however, result in the establishment of a permanent land base. TOP
Political Developments since 1870 TOP During the Depression, Metis "locals" were organized in several Metis communities in Manitoba and elsewhere. A provincial commission of inquiry in Alberta recommended that land grants be issued to Metis communities rather than to individuals. Some land grants were made in Alberta and Saskatchewan, but none in Manitoba. In the 1970s, Metis political activity took a renewed form under the Native Council of Canada and the Manitoba Metis Federation, which were formed to represent the Metis and non-status Indians. Over the years, the identity of both groups became blurred. The Metis and non-status Indians often were lumped together by federal policy-makers for administrative convenience, since each group was of Aboriginal ancestry, but was unable to register as status Indians under the Indian Act. Although the Metis were successful in obtaining program money for housing and other such issues, they refused to be content with government programs which failed to ascribe any special or unique rights to them. Consequently, they began focussing on asserting their rights and researching their historical claims. Metis people regained a measure of their lost stature when they were included in section 35 of the Constitution Act, 1982. As one of the "aboriginal peoples" recognized as having "aboriginal and treaty rights" protected by the Constitution, Metis people have established a legal position hitherto denied to them since the 19th century. When the constitutional discussions of the 1980s began, the Native Council of Canada was included along with the representatives of First Nations and Inuit, primarily because they represented Metis and Indian people who had lost their status. Only a few months after the Metis were included in the first draft of the section, the federal government responded to a Native Council of Canada document by rejecting any general formula of land claims for Metis and non-status Indians. Metis rights had been recognized in the Constitution, but the federal government was of the view that there were none to begin with. During preliminary meetings leading up to the First Ministers’ Conference of 1983, the Metis demanded separate recognition, apart from non-status Indians. They launched a lawsuit to back up their demand, which was settled by Prime Minister Trudeau’s invitation to Metis representatives to participate in their own right at the First Ministers’ Conferences. At the second conference in 1984, Metis issues received considerable attention, with the main question being whose jurisdiction the Metis came under: the federal government’s or the provinces’. Although the federal government accepted that there were Metis in the West and included in the constitutional family, it denied that it had legislative jurisdiction under section 91(24) of the Constitution Act, 1867, as it does in reference to the Indian and Inuit peoples. The governments in Alberta and Saskatchewan met with provincial Metis leaders and stated a willingness to respond to Metis concerns. This led to an agreement between the Alberta Federation of Metis Settlements and the Alberta provincial government on a settlement package involving compensation for lost land and subsurface royalties, local self-government and constitutional protection for the remainder of the lands set aside for Metis in the Depression. The package was approved by referendum in the spring of 1989 and has been implemented. Two Metis farms in Saskatchewan have been turned over by the Saskatchewan government to special Metis corporate entities within the last few years. There were no Metis land grants in a communal title sense in Manitoba. In 1985 the Manitoba government wrote to the Manitoba Metis Federation, agreeing to open negotiations. The federal government agreed to participate, while assigning the lead role to the Province. This willingness to have formal tripartite negotiations reflected the visibility Metis had achieved through the First Ministers’ Conferences. Although initial agreement on a process occurred in 1985, serious negotiations have yet to achieve any tangible results. TOP
The Conflict over Metis Rights TOP There are two fundamental issues that have plagued the Metis in their relationship with the federal and Manitoba governments. These issues centre upon jurisdiction and rights. The federal government has a legislative and executive mandate under the Constitution Act, 1867 in relation to "Indians, and Lands reserved for the Indians" under class 24 of section 91. Although the Supreme Court of Canada declared that the Inuit are within section 91(24) so as to be "Indians" for constitutional purposes,74 our courts have never resolved definitively whether the Metis also come within this provision. Academic opinion is divided on this point. While the Metis initially thought that being expressly defined as "aboriginal people" through subsection 35(2) of the Constitution Act, 1982 would settle this controversy, their view has not been borne out so far. The Metis have argued consistently that they are "constitutional" Indians for the purposes of federal jurisdiction. The Government of Canada has disagreed consistently, asserting that it has no special authority or relationship with the Metis as it does with Indians and the Inuit. The federal government, therefore, states that the Metis are subject to provincial jurisdiction like all other Canadians. The government of Alberta agrees with the federal position and it has maintained special legislation for Metis lands and communities since the 1930s. All other provinces, including Manitoba, disagree with the position and support the Metis contention that they fall within federal jurisdiction by virtue of section 91(24). This is not entirely altruistic since this debate involves the question of primary financial responsibility for the advancement and well-being of a significant population, especially in Manitoba. Related to this debate is the question as to whether the Metis are "Indians" within the meaning of paragraph 13 of the Manitoba Natural Resources Transfer Agreement. This agreement is contained in a schedule to the Constitution Act, 1930 and protects "Indian" hunting, fishing and trapping for food from restriction by provincial law. This issue has not been the subject of scrutiny by the Supreme Court of Canada. However, courts in Saskatchewan have concluded that the Metis do not qualify for these rights as they are not Indians under the Indian Act. 75 The other major source of conflict has revolved around whether the Metis possess Aboriginal and treaty rights. The federal and provincial governments take the same position on this issue. Both levels believe that the Metis have no such rights. The governments’ view, therefore, interprets the inclusion of the Metis within section 35 as being largely meaningless, and asserts that the Metis have no "existing aboriginal and treaty rights" that could be recognized and affirmed in the Canadian Constitution. Not surprisingly, the view of the Metis is completely contrary to this position. The Metis have vigorously asserted their special position in law and in politics since before the creation of Manitoba. The many arguments they have made over the years warrant particular attention. TOP
Metis Arguments for Their Rights TOP While there is a general understanding of the foundation of Indian and Inuit claims to Aboriginal and treaty rights, the same cannot be said about either the basis or nature of Metis claims. The different arguments asserted in Manitoba for Metis rights are:
The Manitoba Act and the Dominion Lands Act made provision for land grants or scrip for Metis as a response to the "Indian title" of the Metis. This grounds Metis claims on their descent from Indians.
Louis Riel often referred to the Manitoba Act as a treaty and called upon Canada to respect the treaty. Manitoba Metis Federation refers to the Act as The Manitoba Treaty and calls it a bargain between peoples—the Metis and the English-French Confederation.
The Metis start with the position that the provisions in the Manitoba Act and the Dominion Lands Act expressly recognized special rights for them. So they argue that there is no need to go behind the documents to find any other source for the rights.
This claim is put in terms of natural law. The Metis claim status as a distinct people who were born and developed in the West. They assert that they had an economic base. Their claims to land vis-a-vis the Indians are explained in terms of Indians with traditional rights to the territory having vacated the Red River area, or, alternatively, that the Indians had acquiesced in the Metis presence and their use of the land. The Metis assert they were an "organized society" with established patterns of land use not contested by any other party. They argue, therefore, that they meet the common law tests for possession of Aboriginal title that have been outlined by Canadian courts.
The Manitoba Metis Federation has argued that provisions of the Manitoba Act recognized the Metis as a people. While the land grants appear to be to individuals or families, the MMF has argued that the fact that they are in recognition of "Indian title" means they are in response to a "collective interest."
The Metis assert rights as a founding people, who were the ones truly responsible for bringing Manitoba into Confederation. According to this line of reasoning, the Manitoba Act was more than an agreement that Canada was to recognize the particular right of the Metis to land. It was a Confederation pact. It was the basis upon which the Metis agreed to join the fledgling federal state when they held the upper hand in the balance of power in the Prairies.
The Manitoba Metis Federation has argued that the recognition of the Metis in the Constitution Act, 1982 reflects a need to deal with the Metis. According to Yvon Dumont, the president of the MMF, Canada has an obligation to reach agreement with the Metis regarding their rightful place in the Constitution. This obligation is suggested to be a moral, political and legal one. Despite these arguments and the apparent validity of the view that as Aboriginal people the Metis must have some type of Aboriginal rights, there is currently no agreement on the part of government that they have any. There is presently no land held in common by or for the Metis in Manitoba, nor is there any agreement on the part of government that there should be. Any titles that still exist in Metis hands that may have come from the "half-breed" provisions in the Manitoba Act are now held simply as regular, individual fee simple titles under general Manitoba land law. There may well be outstanding obligations under the early provisions or claims to damages, but, unlike Alberta and Saskatchewan, there are no lands in Manitoba today which are set aside as Metis lands in any special legal sense. The legal system in Manitoba at the moment appears to recognize no rights peculiar to the Metis. Metis may own land, or hold registered traplines, domestic fishing licences or wild rice production licences, but they hold them as individual Manitobans, rather than as Metis. Practice, however, is different. When the Grand Rapids Dam was constructed and the Chemawawin Indian reserve community was relocated to Easterville, Metis and non-status Indians living in the communities were included in the relocation and were provided with new homes. In the same way, Metis and non-status Indians have been included in the compensation arrangements for South Indian Lake and for the Northern Flood Agreement bands. But in all these cases, Metis and non-status Indians have not been included as a party to the negotiations and have been excluded from the community referendums that ratified the final agreement. This represents a contradictory and inconsistent attitude towards Metis and non-status Indians. They do not have rights on their own, but they can have rights piggy-backed on the rights of status Indian communities. The same attitude can be seen in the James Bay Agreement, and in the Dene-Metis negotiations and agreement-in-principle in the Northwest Territories. The MMF has brought a lawsuit asserting that Metis land rights under the Manitoba Act were frustrated by various federal and provincial statutes. The action seeks a declaration that their rights were violated by statutes which are unconstitutional. As this matter is before the courts in Manitoba, we cannot comment on the merits of the legal arguments of the parties to the litigation. The extent to which the Province has been prepared to become involved with Metis matters has been limited to making occasional financial grants to Metis organizations such as the Manitoba Metis Federation, some of which facilitate Metis involvement in social programs such as housing and child welfare. The Metis have spent a considerable amount of their time in developing the basis of their claims and very little on the matter of what an appropriate settlement would look like. The lack of a model for settlement is a major obstacle toward achieving a successful resolution. Ron Richard of the Manitoba Metis Federation told us:
Non-status Indians are also in an uncertain position somewhat similar to the Metis in Manitoba. While the treaties did not envisage federal control of membership in Indian bands, such control came into play quickly after treaty in Manitoba. The Indian Act provisions had the long-term effect of creating a population of non-status Indians, excluded from band membership by omission, by enfranchisement or by marriage to people who were not registered as Indians. The membership rules were changed in 1985 to restore the entitlement to registration as an Indian to women who had lost status by marriage and to grant some rights to their children. The result has been a significant increase in band membership, and a decrease in the most vocal and visible group of non-status Indians in the country. The remaining non-status Indians are without significant political influence and are virtually unknown in terms of the characteristics of the population. Non-status Indians will gain rights under the current legal regime only if:
Both the Metis and the non-status Indians are Aboriginal peoples according to section 35(2) of the Constitution Act, 1982. Nevertheless, this constitutional recognition has not been translated into respect for their Aboriginal or treaty rights in concrete ways. Instead, both the federal and Manitoba governments have denied that these Aboriginal groups have any such rights, while suggesting that the other level of government is responsible for and should address the social, economic, cultural and political objectives of the Metis and non-status Indians. This principle is now being extended by the federal government to off-reserve status Indians. Although it is clear that they come within federal jurisdiction, the Department of Indian Affairs has adopted a policy that it will not provide or pay for services for off-reserve status Indians once they leave their home reserves. In other words, the federal government’s position is to have off-reserve status Indians treated just like Metis and non-status Indians; i.e., similar to all other provincial residents. These jurisdictional squabbles and efforts to deny responsibility should stop immediately. In our view, Metis people and non-status Indians fall within the constitutional definition of "Indians" for the purposes of section 91(24) of the Constitution Act, 1867 and fall within primary federal jurisdiction. Both the federal and provincial governments must demonstrate a sincere willingness to deal fairly with all off-reserve Aboriginal people, and must commence negotiations with a commitment to implementing meaningful measures to respect the Aboriginal and treaty rights of this population, in keeping with the spirit and intent of the fiduciary obligations of both levels of government. While the Government of Canada is empowered constitutionally to adopt the lead role and carry the primary financial burden, the Manitoba government has a critical role to play as well. We recommend that:
The Indian Act TOP Continuing Discrimination The Indian Act was amended extensively in 1985 with the explicit objective of bringing it into line with the equality provision of the Charter of Rights and Freedoms. Section 15 of the Charter, which came into effect on April 17, 1985, declared that every person is "equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular without discrimination based on race ... sex," and other enumerated grounds. The federal government was very concerned that the blatant sexual discrimination in the Indian Act was vulnerable to attack. Although the same discriminatory provisions had been upheld a decade earlier by the Supreme Court of Canada when challenged under the Canadian Bill of Rights,76 it was felt that the constitutionalization of equality would lead to a different result. In addition, the United Nations Human Rights Committee had declared that Canada was in violation of the International Covenant on Civil and Political Rights for denying Indian women who had lost their status on marriage the right to reside in their own communities.77 The Indian Act was amended, therefore, to change the rules regarding entitlement to registration and to empower Indian bands to enact their own membership codes if they so desired. This is how the amended act outlines the complex set of criteria which determine who the government considers to be an Indian:
Despite the amendments intended to remove discrimination, the Indian Act today still contains clear forms of sexual discrimination—as well as the seeds of eventual termination of Indian status altogether. The current provisions have the effect of "grandfathering" all people who were registered when the amendments took effect retroactively on April 17, 1985. That is, any person who "was registered or entitled to be registered" immediately prior to that date remains a status Indian or is entitled to obtain such status, based on the former provisions in the Act under section 6(1)(a). Women who had lost their status upon marriage now can regain it upon application under section 6(1)(c). Other individuals who voluntarily gave up their Indian status upon enfranchisement, or had it taken away from them for one of the many reasons that the Act has contained over the years (e.g., for acquiring a university education), are also eligible to apply for reinstatement under one of the provisions in subsection 6(1). Similarly, the children of those who lost their Indian status can be reinstated if one or both of their parents are entitled in their own right. (ss. 6(2) and 6(1)(f), respectively) The continuing discrimination enters the picture in terms of the differential treatment between the sexes regarding the children of status Indians. This is an extremely convoluted registration scheme in which the discrimination is not readily apparent on the surface. It requires an examination of how the Act treats people to detect the fundamental unfairness. Examples are necessary to make this more obvious. Joan and John, a brother and sister, were both registered Indians. Joan married a Metis man before 1985 so she lost her Indian status under section 12(1)(b) of the former Act. John married a white woman before 1985 and she automatically became a status Indian. Both John and Joan have had children over the years. Joan now is eligible to regain her status under section 6(1)(c) and her children will qualify under section 6(2). They are treated as having only one eligible parent, their mother, although both parents are Aboriginal. John’s children gained status at birth as both parents were Indians legally, even though only one was an Aboriginal person. Joan’s children can pass on status to their offspring only if they also marry registered Indians. If they marry unregistered Aboriginal people or non-Aboriginal people, then no status will pass to their children. All John’s grandchildren will be status Indians, regardless of who his children marry. Thus, entitlement to registration for the second generation has nothing to do with racial or cultural characteristics. The Act has eliminated the discrimination faced by those who lost status, but has passed it on to the next generation. Similar results flow from distinctions regarding how illegitimate children are treated under the amendments. Not only does the Indian Act maintain improper and probably illegal forms of sexual discrimination, but it also threatens the long-term survival of Indians. The current regime has a de facto form of a "one-quarter blood" rule. As shown in the previous example, intermarriage between registered Indians and others over two successive generations results in descendants who are not entitled at law to be status Indians. This may threaten the very existence of First Nations in the not too distant future, especially small communities who have considerable interaction with neighbouring Metis or non-Aboriginal communities. In our view, discriminating against Indian people by virtue of such provisions imposed by Parliament should cease. We recommend that:
In addition, the Act must be changed so as to prevent the gradual elimination of First Nations and registered Indians. While the Act does permit bands to create their own membership rules, it does not permit them to extend federal recognition to those of their members who do not qualify for Indian status. The effect of the second generation cut-off rule is that many people of Indian ancestry who are raised as members of First Nations with full knowledge of their language, culture and history will be disenfranchised as Indians under the federal law in the not too distant future. Ultimately, some First Nations could be eliminated through this legislative provision. We recommend that:
While the Act should be amended further to ensure that all forms of gender discrimination regarding the children of Indian women are removed, this does not mean that all Indian people will be band members. Instead, it is designed to entitle all persons of Indian ancestry to apply if they desire to be recognized in law as Indians. The category of so-called "non-status" or "unregistered" Indians should disappear. It is thoroughly inappropriate for the federal government to possess the authority or to legislate in such a way as to divide a people into those it will regard legally as being members of the group and those it will not, on grounds that violate the cultural, linguistic, spiritual, political and racial identity of these people. The Indian Act should be amended to entitle any person to be registered who is descended from an Indian band member. This does not mean, however, that all such persons will acquire band membership, because such membership would be within the prerogative of the band membership codes of the individual First Nations. TOP
Paternalism in Legislative Form TOP Indian people have attacked the Indian Act as paternalistic and colonialistic since its first passage. Presenters at our hearings were scathing in their condemnation of the Act. John Letandre of Winnipeg told us:
Chief Philip Michel of the Barren Lands Band made this comment about the Act:
In recent years they have been gaining many non-Indian allies, such as the Canadian Human Rights Commission, several parliamentary committees and international organizations. It is long past the time that legislation that imposes almost complete federal control upon reserve life can be tolerated. Canada should begin to make appropriate changes immediately so as not to enter the 21st century with such patronizing and restrictive legislation in place. The Government of Canada has repeated continuously since 1983 that it supports Aboriginal self-government, yet the pace of change within federal policies and legislative initiatives is grindingly slow. While recognizing that the right of Aboriginal people to self-determination in the Canadian Constitution may be made explicit in the very near future, we also recognize that there is a crying need for urgent legislative action. At the same time, the situation is far more complex than can be resolved by simply repealing the Indian Act. Eliminating the special legal position of individual Indians and First Nations is neither appropriate nor acceptable. We have moved forward irreversibly in recognizing the unique position of Aboriginal peoples in Canada, and a return to the White Paper proposals of 1969 would not be tolerated. The challenge is to enshrine federal promises and commitments which honour the special relationship between the Crown and Aboriginal people. Change must also accommodate the wide diversity among First Nations. Some wish to remain under the Act largely as it now stands but with expanded administrative and law-making powers. This goal can be met by amending the Indian Act to increase the range of subjects over which by-laws may be enacted. The Penner Report, written by a unanimous Committee of the House of Commons in 1983, identifies a number of subject areas that could be included within the jurisdiction of band councils. While the committee concluded that the exact scope of this new jurisdiction should be resolved through direct negotiation, it also concluded that "a First Nation government should have authority to legislate in such areas as social and cultural development, including education and family relations, land and resource use, revenue raising, economic and commercial development, and justice and law enforcement, among others."78 A number of First Nations are currently seeking to negotiate their own special legislation to replace the Indian Act. The Sechelt Band of British Columbia and the Cree and Naskapi bands of Quebec already possess their own special federal legislation that almost completely replaces the Indian Act as the governing statute in their lives. The terms of these specific laws were negotiated between the federal government and the First Nations concerned. Many First Nations call the approach taken in those instances inadequate, as it consists of the delegation of authority from Parliament, rather than the recognition of the right to self-government as being inherent and flowing from their sovereign status. It is true this special legislative route, which is being promoted actively by the Department of Indian Affairs, is subject to being repealed by Parliament at any time and does not provide constitutional protection of this Aboriginal authority. While it is not constitutionally entrenched in any way, it does reflect improvement over the Indian Act. There is a pressing need for constitutional change. However, there is also a necessity for interim measures that can be used expeditiously. Parallel legislation to the Indian Act for specific First Nations would permit those First Nations who so desire to opt out of parts of the Indian Act while leaving the Act intact for those First Nations who still wish it. The prime minister recently has promised action on this front in relation to several aspects of the Act, such as land management and band election rules. One critical component of these initiatives must be that First Nations not only consent to any future changes, but be involved actively in negotiating and drafting the terms of any new federal legislation or amendments to the Indian Act. Lip-service must not be paid to consultation, as has been the case too often in the past. Instead, a renewal of the Aboriginal-Crown relationship requires development of a partnership in this endeavour. At the same time, First Nations should not be penalized directly or indirectly if they do not wish to participate and prefer to proceed more gradually. Properly respecting the "honour of the Crown," as the Supreme Court of Canada emphasized in the Sparrow case, and the federal fiduciary obligation will permit a varied approach. We recommend that:
These amendments relating to the law-making powers under the Indian Act should be viewed as transitional until more complete intergovernmental arrangements are in place, which recognize the constitutionally protected rights of Aboriginal peoples to govern their own affairs. We recommend that:
We have reached the conclusion that the federal government has failed to meet its obligations to First Nations as a result of the dramatic increase in band membership brought about through the amendments to the Indian Act in 1985 by Bill C-31. While the removal of some discriminatory provisions was well intentioned and appropriate, the federal government has caused grave hardships for many First Nations who face significant added pressure for already scarce resources. This failure to respond to the increase in band size that the change has caused is, in our view, a breach of the federal fiduciary obligation. We recommend that:
Statutes in Conflict with Treaty and Aboriginal Rights TOP In our view, a number of federal and provincial statutes are in violation of Aboriginal and treaty rights. Given our conclusions regarding the current state of Canadian judicial decisions and our assessment of the effect of entrenching these rights constitutionally, we believe that certain federal and provincial laws are inoperative in relation to Indian, Inuit and Metis peoples when those laws conflict with the rights now protected by section 35 of the Constitution Act, 1982. The following laws are the ones that have been the source of most of the controversy and tension. They do not represent, however, a complete list of legislation that is now of doubtful validity. Statutes of Canada
Statutes of Manitoba
We recommend that:
One specific legislative change that could be implemented quickly, if Aboriginal organizations in this province agree, is in the area of the general Interpretation Acts of Manitoba and Canada. These acts deal with general principles of statutory interpretation and also provide rules and principles that apply unless a particular statute contains a provision that clearly has a different effect. Express recognition of Aboriginal and treaty rights within these laws would have a positive effect and assist in ensuring that all legislation is interpreted properly in light of these constitutionally protected rights. We recommend that:
Conclusion TOP We believe that Aboriginal people in Manitoba have been treated unfairly by federal and provincial governments, and by the legal system. There have been frequent violations of the letter and spirit of Indian treaties and Aboriginal rights over the years. Indians have been frustrated by the lack of movement on land entitlement issues. A long-awaited review of federal policy holds little promise of progress. The record on specific claims is just as dismal, with only one claim in Manitoba being settled thus far. Aboriginal people seem to have lost almost complete respect for and trust in both the federal and provincial governments. Dramatic change is required. We believe that the recommendations outlined in this chapter, if implemented by the governments of Manitoba and Canada, would go a long way in rectifying historic injustices. TOP |
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