RIGHTS AND FREEDOMS WHAT’S HAPPENED TO ABORIGINAL PEOPLES IN CANADA?

The truth will set you free, but first it will piss you off

Aboriginal Peoples Fastest growing population in Canada (birth rate on reserves and cities) Sec. 91 Constitution- “responsibility for Indians and lands reserved or Indians”- interpretation Heavy attention paid to criminal law…but little else (Attawapiskat)

Aboriginal Peoples Embedded Racism- 1923 Williams Treaties in Ontario (extinction clause) Assimilation was the policy- loss of status for various activities First contact- 2 million Abori. Population- 1871 100,000- 2014 2.1 million- huge impacts on society

Aboriginal Peoples 1990 Royal Commission on Aboriginal Peoples- ignored Paul Martin’s Kelowna Accord- canned after 2008 2008 Apology towards residential school issue- but zero action Attawapiskat- classic colonial arrangement*

Aboriginal Peoples 600 bands across Canada are covered by the Indian Act The key problem- constitutional grey area- Municipal land Aboriginal “governments” have not the means or powers- Therefore they are in a state of dependence- perpetually

Aboriginal Peoples How we “look” at Canada is important- we are a settler country but also an Aboriginal one- no savages existed Premise of colonial government- Americas were to be conquered and populated Legally the lands were terra nullius “no-man’s land” Huge discrepancy between European worldview of land and that of Aboriginals

Aboriginal Peoples 1763 Treaty of Paris- Royal Proclamation of 1763- recognize the integrity of indigenous societies in order to deal with the appetite for settlement 1763- indigenous lands were “not to be molested or disturbed” and the proclamation will address the “Great frauds and abuses that were committed” Nice job George III!

Aboriginal Peoples But…the abuses did not stop At the heart of the issue was the misguided notion of public opinion- inferior races, the notion of eugenics, segregation for the benefit of the superior (reserves) Social Darwinism- even Tommy Douglas encouraged the sterilization of the “unfit”

Aboriginal Peoples 1876 essentially imbedded all of these problems and notions- compulsory residential schools and the “negotiation” of treaties Ontario, Manitoba, Saskatchewan Alberta and part of BC- all governed by treaties signed in the 19th and early 20th century- Historic Treaties Modern Treaties are relatively from the mid 1900’s to present day

Aboriginal Rights: Outside the Charter but... Aboriginal rights were never intended to be included in the Charter (1969 White Paper)- the Charter rights were not to be applied to one specific group Sec. 35 of the Canada Act (first section after the Charter) SCC jurisprudence has applied SCC principles and approaches to the interpretation of Aboriginal rights

Section 35 35. (1) The existing aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed (2) In this act, “aboriginal peoples of Canada” includes the Indian, Inuit, and Metis peoples of Canada

35 Politicians in 19802 realised that many treaty rights had been ignored or overridden over the years by government legislation Here we see an interesting form of judicial interpretation- Treaties are not Laws- Courts do not recognize treaties unless they are included in domestic legislation Some law based on economics here...

35 Massive issues with the wording of section 35- in 1982 there were vast stretches of land with no treaties or land claim agreements- what of them? Any mention of self government? Any mention of embedded equality between Aboriginal men and women? Any mention of incorporating Aboriginal voices in constitutional amendments in the future?

35 1983 a constitutional conference was held to debate many of these issues The only time since 1982 that a change to the constitution has occurred with the amending formula 7/50 rule 35 (3)- treaty rights now or may be so acquired (4)- Aboriginal treaty rights are applied equally to male and female persons

Constitutional Questions Section 25 of the Charter Many people were not happy with the new wording- 1984, 1985 and 1987 conferences were held and all ended in failure Aboriginals have now relied on litigation rather then political negotiation

Thoughts on Section 35 Instead of cooperating with the government we have to remember that we are Nations of people, and remember what it was we were fighting for in the first place. We were never fighting for section 35, we were fighting to preserve our Nation-to-Nation relationship, for recognition as Sovereign Nations, and to Decolonize Our People.  In some ways, section 35 has diverted our people, and the new leadership instead of fighting for our rights, is negotiating to help Canada and the provinces define them… Section 35 might be one more tool to uphold the fiduciary duty that the Crown owes to Our People, but our real fight is to rebuild our Nations and to gain recognition at the international level.

Aboriginal Peoples Historic treaties were interpreted by the Canadian government- limit aboriginal peoples to reserves and give up their traditional lands to the Crown Aboriginal interpretation- an agreement to share the land Current issues with SCC judgments and government policy shifting from historic treaty lands to non-treaty lands

Aboriginal Peoples 1973 Calder vs. British Columbia- Aboriginals still had rights to land that was not ceded to the government in historic treaties This changes everything… Seismic shift in how the government ‘deals’ with aboriginals and their lands

Aboriginal Peoples 26 modern treaties and more on the way 1997 Delgamuukw case is the test for proving land title (followed by the Tsilhgot’in case) The problem…doesn’t impact the aboriginals under the historic treaties…which is most of the population No share in land revenue, no power to address their local concerns, limited futures The reality is we have to readdress the historic treaties

Historic Treaties Forced on many communities, duress Treaty 6- prairies- 1878 election (construction of a railway)- “clear the plains” of aboriginals Famine, extinction of Bison and then the government show up- policy of submission and starvation- very effective The SCC says we must look at the actions of the crown as solemn and acting in good faith…oh yeah?

Historic Treaties Treaty 9- Northern Ontario 1905 Duncan Campbell Scott*- force aboriginal off of the valuable mineral, pulp and paper land Pre-drafted, cooked up contracts- deals made with aboriginals who did not speak the language nor write Treaty 9 covers about 40,000 people-the nature of the question is what were they told to get them to sign the treaty? Troubling

Historic Treaties Government Perspective- First Nations gave up all their claim in exchange for 4 or 5 dollars a year, the “right” to live on a reserve, the “right” to hunt on traditional territory Aboriginal View- sharing land, protection against harm, peace and the promise of undiminished hunting or harvesting* Pigeon Lake

Historic Treaties Duncan Campbell Scott “What could they grasp of the pronouncement on the Indian tenure which has been delivered by the Law Lords of the Crown, what of the elaborate negotiations between the Dominion and the province which had made the treaty possible, what of the sense of traditional policy which brooded over the whole? Nothing. So there was no basis for argument”

Historic Treaties Conservative policy- the deal is the deal Better option?- acknowledge the treaties were not signed honorably- Treaty 6 Also, utilize the traditions of the oppressed people- Oral/Verbal terms must be considered (according to the SCC) 1992 self-government negotiations began…nothing has happened since

So what do we do? Fix the car (healthy communities cost less to taxpayers) Current Modern Treaty making is very effective- current Innu Nation treaty- mutually beneficial terms or else arbitration If the gap continues to widen between historic treaty natives and modern ones then obviously there will be more blockades and more civil disobedience Since the Calder Case- obvious message that has not been heeded

Truth The Human Rights Challenge of our time… We can turn our heads from most issues- not from this one The impressive court wins have resulted in lazy and unwilling governments to follow those decisions Truth and Reconciliation Commission- The truth will set you free, but first it will piss you off