CHAPTER 14 Aboriginal Politics POLS 1303D2 Winter 2011

1. CHAPTER 14Aboriginal PoliticsPOLS 1303D2Winter 2011

2. Native Demographics: Who and How Many? • 1,678,200 people, or about 5.4 per cent of the national population, gave as their ethnic origins North American Indian, Métis, Inuit, or a combination of one of these with some other ethnic origin. • 1,172,790 people, representing about 4 per cent of the Canadian population, reported identifying with an Aboriginal group. • 763,555, or just under 2 per cent of the population, are status Indians, i.e., those to whom the Indian Act applies. Slightly more than half of these people live on reserves. *All figures according to the 2006 Census

3. Social and Economic Conditions The median per capita income for the Aboriginal population in 2006 was $13,525, compared to $22,431 for non-Aboriginals. Government transfer payments make up about one-fifth of Aboriginal income, compared to about one-tenth of income for non-Aboriginal Canadians. The incidence of low incomes is about 2.5 times higher for the Aboriginal population, largely due to a higher level of single-parent families headed by females.

4. Social and Economic Conditions, cont’d. • About 1/3 of Aboriginal Canadians between the ages of 25 and 64 have not completed high school (about 50 per cent among those living on reserves), compared to 15 per cent of other Canadians. • Only 8 per cent have graduated from university, compared to 23 per cent for other Canadians.

5. Natives, Aboriginals, Indians, and First Nations Historically, the terms ‘Indians’, ‘Métis’, and ‘Eskimos’ were used to describe various segments of the Aboriginal population. By the late 1970s and, certainly, by the 1980s, ‘Indian’ had lost favour in preference of ‘Native’, ‘Aboriginal’, and ‘First Nations’—a shift that was both intellectual and political.

6. Natives, Aboriginals, Indians, and First Nations, cont’d. • The language used to describe Aboriginal communities makes a difference. • Whereas the word ‘Indian’ inevitably carried historical baggage of conquest, displacement, and subordination, in addition to the fundamental fact of having one’s identity named by others, these more recent terms do not. • Widespread acceptance of the terms ‘First Nations’, ‘First Nations peoples’, ‘Original Peoples’, and ‘Indigenous peoples’ has had important consequences through the greater perceived legitimacy that such terms confer on a group’s claims.

7. Natives, Aboriginals, Indians, and First Nations, cont’d • But labels that are considered appropriate or preferable in one society, may not be in another • One speaks of ‘Native Americans’ in the US, but not ‘Aboriginal Americans’. The term ‘Eskimo’ is generally considered to be offensive in Canada and has been replaced by ‘Inuit’, but continues to be used and preferred by members of this community in Alaska and Russia.

8. Who is an ‘Indian’? Indian is a legal term under the Indian Act, 1876. In law, an Indian or status Indian is anyone who has been registered or is entitled to be registered under the Indian Act, including those who belong to communities covered by treaties. Canadian law also recognizes the Métis and Inuit as two other categories of Aboriginal peoples of Canada

9. The Reserve System The Indian Act of 1876 defines reserves in the following way: ‘. . . ‘reserve’ means any tract or tracts of land set apart by treaty or otherwise for the use or benefit of or granted to a particular band of Indians, of which the legal title is in the Crown, but which is unsurrendered, and includes all the trees, wood, timber, soil, stone, minerals, metals, or other valuables thereon or therein.’

10. The Reserve System, cont’d • At the heart of this definition and central to the quandary of the reserve system is the guardianship relationship established between the federal government and Indians living on reserves: • so-called “wards” of the Crown • The legal ownership of reserve land belongs to the Crown, but the land and all the resources appertaining to it must be managed for the ‘use or benefit’ of the particular band of Indians residing there.

11. Reserves: How Many and Where? There are about 2,700 Indian reserves in Canada; about two-thirds of them are in British Columbia. Together they comprise about 10,000 square miles, an area roughly half the size of Nova Scotia. Most reserves are uninhabited, since many bands have leased their reserve land to non-Indians for purposes that include resource exploitation, rights of way, farming, and recreational uses. Reserve populations vary from two to just under 20,000 (Six Nations reserve in Ontario); most inhabited reserves have populations of fewer than 1,000 people.

12. Reserves: How Many and Where?, cont’d. • Roughly 400,000 Indians live on reserves—it is impossible to arrive at a more precise number because census enumerations of the population have not been permitted on many reserves over the last couple of decades, including on some of the larger reserves representing close to 60 per cent of all status Indians. • Although there are reserves in all regions of the country, most reserves and the vast majority of those living on them are located in rural and remote areas.

13. Native Languages Only three of Canada’s roughly 53 Aboriginal languages—Cree, Inuktitut (Eskimo), and Ojibway—continue to be spoken by significant numbers of Native Canadians. Figure 14.2 shows high levels of language loss among Aboriginal Canadians.

14. Aboriginal Policy: The Assimilationist Phase Until well into the latter half of the Twentieth Century it was believed by most that Aboriginal Canadians would gradually abandon their language, customs, and lifestyles and be absorbed into Euro-Canadian society. Integration progressed slowly, however, despite various prohibitions and inducements intended to eradicate what were considered to be backward practices.

15. Aboriginal Policy: The Assimilationist Phase, cont’d. • The prohibition against using Native languages in residential schools • operated under the authority of the federal government • was another method of assimilating Aboriginal people into mainstream Canadian society. • In 1960, the extension of voting rights to Natives brought their political status closer to that of other Canadians, but their legal and social status, and their civil rights, remained quite distinct • remember what Dr. Julien said about 1956…the year Natives were finally, legally, ‘citizens’, retroactively through an amendment to the Immigration Act.

16. The Integrationist Phase In 1969, Pierre Trudeau’s Minister of Indian Affairs, Jean Chrétien, introduced the White Paper on Aboriginal Reform. It proposed the total dismantling of the Indian Affairs bureaucracy, an end to the reserve system, the abolition of a different status for Indians under the law, and the transfer of responsibility for the education, health care, and social needs of Native citizens to the provinces, in line with provincial responsibilities for all other citizens.

17. Reaction to the White Paper Reaction was swift and overwhelmingly negative. ‘Now, at a time when our fellow Canadians consider the promise of the Just Society, once more the Indians of Canada are betrayed by a programme which offers nothing better than cultural genocide’ was the verdict of Chief Harold Cardinal of the National Indian Brotherhood. ‘For the Indian to survive,’ he said, ‘the government [says] he must become a good little brown white man’.

18. White Paper Vision Today The White Paper’s integrationist vision and the premises on which it was based survive today as a minority point of view among Canada’s political and intellectual elite. The White Paper has been refuted by numerous court decisions on treaty rights and Native land claims. The separate and distinct status of Aboriginal communities within Canadian society and the self-government of Native communities have pushed this integrationist vision aside.

19. Self-government and Sovereignty This newer vision for Aboriginal Canadians was set forth in the 1996 Report of the Royal Commission on Aboriginal Peoples The Commission started from the premise that Aboriginal Canadians constitute First Nations whose sovereignty should be respected by the government of Canada

20. Self-government and Sovereignty, cont’d. • Called for the creation of an Aboriginal third order of government whose existence would be based on the acknowledgement by Ottawa and the provinces that the inherent right to self-government is a treaty right guaranteed by the Constitution of Canada. • Proposed a form of dual citizenship for Aboriginal Canadians, who would be both Canadian citizens and citizens of First Nations communities.

21. Self-government and Sovereignty, cont’d. The original sovereignty of Native peoples and their ownership of the land to which they lay historical claim must be acknowledged and their continuing right to a land base and self-government must be embedded in the Constitution. The survival and development of Aboriginal cultures can only be achieved through policies that recognize Aboriginal people as distinct communities with special rights and powers.

22. Self-government and Sovereignty, cont’d. • Both Liberal and Conservative governments have preferred a policy of gradual and piece-meal reform, rather than embracing the sweeping vision proposed by the RCAP. • Formal apology in 2008 to the victims of abuse at residential schools • Reparations paid to victims

23. Self-government and Sovereignty, cont’d. • Steps towards various forms of self-government for many Native communities—though not a one-size-fits-all model enshrined in the Constitution—were already underway before the RCAP made its recommendations, and some innovative models have been developed, such as those adopted for Nunavut and for the Aboriginal peoples of Yukon

24. Organizing for Influence The reaction to the federal government’s 1969 White Paper on Indian Policy marked the real beginning of the politicization of the Native movement in Canada. Some earlier efforts had been made by Aboriginal leaders to create pan-Canadian and provincial Indian organizations to lobby for their rights (see Box 14.3).

25. The Impact of Court Decisions The Royal Proclamation of 1763 dealt with the North American territories that were formally surrendered by France to England under the terms of the Treaty of Paris. The Proclamation included detailed provisions regarding relations between the British and the Native inhabitants of these territories (see Box 14.4).

26. The Impact of Court Decisions, cont’d In the case of St Catherine’s Milling and Lumber Company v. The Queen, decided by the Judicial Committee of the Privy Council (JCPC)in 1888, the Proclamation was interpreted as establishing for Indians ‘a personal and usufructuary right, dependent on the good will of the sovereign’.

27. The Impact of Court Decisions, cont’d, cont’d The land title issue was centre stage in the 1973 case of Calder et al. v. Attorney General of British Columbia. Justice Emmett Hall stated: ‘This aboriginal title does not depend on treaty, executive order or legislative enactment but flows from the fact that the owners of the interest have from time immemorial occupied the areas in question and have established a pre-existing right of possession. In the absence of an [explicit] indication that the sovereign intends to extinguish that right the aboriginal title continues.’

28. The Impact of Court Decisions, cont’d, cont’d In Delgamuukw v. Attorney General of British Columbia the issue of Aboriginal title was addressed head on. A group of Gitksan and Wet’suwet’en chiefs argued that they owned an area in British Columbia roughly the size of the province of Nova Scotia The Supreme Court ruled that where Aboriginal title to land has not been extinguished by the terms of a treaty—and this would include most of British Columbia as well as parts of Atlantic Canada—Aboriginal communities able to prove that they historically occupied and used the land continue to have property rights.

29. The Courts and the Interpretation of Treaties The question of how treaties negotiated centuries ago should be interpreted today—treaties that were negotiated in very different circumstances, by parties who spoke different languages and operated from very different cultural premises, and that were written in the language of only one of the parties—has arisen on numerous occasions.

30. The Courts and the Interpretation of Treaties, cont’d In R. v. Marshall (1999) the Supreme Court said that ‘extrinsic evidence of the historical and cultural context of a treaty may be received even if the treaty document purports to contain all of the terms and even absent any ambiguity on the face of the treaty.’ The majority added that ‘where a treaty was concluded orally and afterwards written up by representatives of the Crown’—a practice that was common—‘it would be unconscionable for the Crown to ignore the oral terms while relying on the written ones.’

31. The Courts and the Interpretation of Treaties, cont’d R. v. Marshall (2005) ‘[E]vidence of oral history is admissible, provided it meets the requisite standards of usefulness and reasonable reliability.’ ‘[T]reaty rights are limited to securing “necessaries” (which should be construed in the modern context as equivalent to a moderate livelihood), and do not extend to the open-ended accumulation of wealth.’

32. The Institutionalization of Aboriginal Affairs Historically, the institutionalization of Aboriginal affairs into the structure and activities of the Canadian state has also involved the creation and perpetuation of dependency relations. The leading organizational voices for Aboriginal Canadians continue to depend on the public funding provided mainly through the budget of Indian and Northern Affairs Canada (INAC).

33. Institutionalization: State-financed Media The institutionalization of Aboriginal affairs and identity within the Canadian state has also occurred through broadcasting. Early beginnings go back to 1960 when the CBC Northern Service broadcast the first Aboriginal-language program from its Montreal studios. Telefilm Canada; the Nunavut Film Commission; Aboriginal Peoples Television Network (APTN); CBC Radio North; Inuit Broadcasting Corporation

34. Institutionalization:Employment Aboriginal representation in the federal public service, negligible for most of Canada’s history, is currently almost proportional to the size of the Aboriginal identity population of the country. About 40 per cent of all Aboriginal federal employees work in the North or in the provinces west of Ontario. Almost one-third of the employees of Indian and Northern Affairs Canada (1,178 of 3,767, as of 2004) are Aboriginal.

35. Continuing Controversy • Thomas Flanagan’s First Nations? Second Thoughts v. Alan Cairns, Citizens Plus • Flanagan’s vision is integrationist and individualistic, informed by the spirit of the failed 1969 White Paper; Cairns’ is communitarian and in the spirit of the RCAP. • Perhaps their most important point of agreement is that they both disagree with the concept of some sort of Native sovereignty that excludes or overshadows Canadian citizenship.