PURSUING JUSTICE 1951-1997

1. PURSUING JUSTICE 1951-1997 Following WWII, real gains and recognition of land claims and Aboriginal rights occurred, not through government negotiation, but through court cases

3. STUDIES, HEARINGS AND PAPERS • 1959-61 federal government Joint Committee held hearings aimed at overhauling administration of “Indian Affairs” • creation of land-claims commission • Pearson’s government in 1963 issued a bill to settle all outstanding “Indian claims” • did not acknowledge Aboriginal title as basis of land claims and not allow First Nations to file against provinces for land • First Nations leaders denounced bill

4. 1963 federal government commissioned study of First Nations people – “Survey of the Contemporary Indians of Canada” • also called Hawthorne Report • noted social and economic disparities between First Nations and other Canadians • first recommendation: • integration or assimilation are not objectives which can be pursued • Indian Affairs should concentrate on increasing First Nations education, their real income, and adding to life expectancy

5. Government reaction to Hawthorne Report was the creation of the White Paper 1969 • official title: “Statement of the Government of Canada on Indian Policy” • report proposed repealing Indian Act and ending acknowledge status First Nations people had • denied government responsibility to Metis or Inuit • storm of protest from First Nations people • sense of betrayal for consultation process • strengthened resolve of Aboriginal people to work together to change relationships • founding of new organization – Union of British Columbia Indian Chiefs (1969) • response to White Paper and need from provincial organization • also formed – British Columbia Association of Non-Status Indians

6. THE CALDER CASE • from 1907, Nisga’a Land Committee laboured to resolve claims • Nisga’a took BC to court in 1969 • title never had been extinguished • filed by Frank Calder – young Nisga’a leader • Supreme Court of BC not agree with Nisga’a since Royal Proclamation not apply in BC • to BC Court of Appeal • upheld first decision • appealed to Supreme Court of Canada 1973 • did not succeed, but considered a victory • held that Nisga’a had title when colonial government formed • but split on decision of title in the 1970s

7. as result of Calder Case, federal government took renewed look at policies towards land claims • comprehensive claim – Aboriginal rights to unsurrendered land • specific claims – redress of particular claims where federal government failed in its responsibilities • included cut-off reserves, department mismanagement of band funds • to settle claim, had to extinguish land and resource rights • would only consider land claims, not issue of self-government • BC still not recognize title and did not participate

8. in order to submit land claim • had to prove rights to territories and their ancestors rights before European arrival • documenting traditions and histories using oral histories from Elders and archival records • First Nations began to align into tribal councils based on common language and culture • became the voices for federations of band councils and communities • land claims and moved towards self-government • took over some duties of Dept of Indian Affairs • gained more autonomy and cut much bureaucracy

9. THE CONSTITUTION ACT • 1980s Canada to repatriate the Canadian constitution from Britain • proposed constitution –First Nations people to lose all Aboriginal rights • First Nations leaders took action to ensure Aboriginal and treaty rights entrenched • one action – cross country train trip called Constitution Express • rallying Aboriginal to protest in Ottawa • continued at UN in New York and in Europe • attention forced Cdn government to look again • some groups against the Aboriginal groups in constitution • some provinces • some Aboriginal groups

10. First Ministers conference wrote new draft constitution • all references to Aboriginal rights removed • First Nations across Canada joined to have them reinserted • joined forces with another group – Canadian women and rights of equality • both had concerns reflected in new constitution • Section 35 • process of constitution united First Nations across the country

11. ROYAL COMMISSION: RESPONSE TO THE OKA CRISIS • 1990 in Quebec province – Oka crisis • small protest over land into summer long siege • Quebec police to dismantle roadblock • protest of golf course expanding onto burial ground • armed force attacked blockade, but blockade held • gunfire, tear gas, and one officer dead • 78 days of armed Mohawk warriors against Quebec police and Cdn Armed Forces • finally Mohawk withdrew peacefully in Sept without land issues settled • Oka was turning point in relationship between Aboriginal and non-Aboriginal people in Canada • stand-off reported in newspapers, radio and tv • possibly first time journalists sympathetic to First Nations • did not solve immediate issue, but did focus attention on Aboriginal issues and need for improved relationship between the First Nations and governments

12. Royal Commission results 1996 • many recommendations aimed at changing way government and Cdn society dealt with First Nations • one – create an Aboriginal parliament and get rid of Dept of Indian Affairs • government response – a plan for redressing wrongs of the past • titled: Gathering Strength – Canada’s Aboriginal Action Plan • January 1, 1998, Minister of Indian Affairs Jane Stewart gave formal apology to all Aboriginal people in Canada in “Statement of Reconciliation” • also committed money to healing programs at overcoming legacy of residential schools • included counseling and language training • action plan had 4 themes • renewing the partnership • strengthening Aboriginal governance • developing new fiscal relationship • supporting strong communities • 1990, BC finally agreed to negotiate land claims • 1993 BC Treaty Commission began negotiations

13. TESTING THE CONSTITUTION • many court cases tested Section 35 of the constitution and helped to define Aboriginal rights • Guerin case 1984 • started earlier in 1950s • local Indian Agent convinced Musqueam band to lease land to golf course • Dept of Indian Affairs negotiated on behalf of band • Chief Delbert Guerin learned that lease favoured the golf course and sued federal government • courts ruled in band’s favour, government appealed to Supreme Court of Canada • ruled federal government had a “fiduciary responsibility” to First Nations people • obligated to protect interests and rights of First Nations • important ruling – recognized pre-existing Aboriginal rights to land on reserves and outside reserves

14. THE SPARROW CASE • Ron Sparrow of Musqueam band arrested for illegal fishing in 1984 • fishing under food license but with net longer than allowed under Fisheries Act • action changed way country looks at Aboriginal fishing rights • Sparrow’s defence – exercising Aboriginal right to fish • laws restricting net size violated Section 35(1) recognizing existing Aboriginal rights • found guilty in provincial court • Supreme Court 1990 • ruled interpretation of Section 35 needed to be flexible • Aboriginal rights are changing and not same as in past • for Aboriginal rights to be extinguished, government must clearly state intentions • Aboriginal fishing subject to conservation but needs to be given priority over other groups

15. VAN DER PEET v. THE QUEEN • series of BC court cases in 1996 clarified Aboriginal rights • Van derPeet, Nikal, Lewis, and NTC Smokehouse cases • Dorothy Van derPeet of Tzeachten Band of Stolo Nation sold 10 salmon to non-Aboriginal people in 1987 • charged with illegally selling fish with a food-fishing license • at trial argued Aboriginal right to sell fish • right had not been extinguished and fisheries laws violated the right • found guilty and fined $50 • appealed at Supreme Court of BC • Justice Selbie ruled that the previous judge ruled in error when saying traditional society did not sell fish • cannot compare modern definitions of commercial fishing with economy of past • Van derPeet had proved Aboriginal right to fish included right to sell

16. to Supreme Court of Canada 1995 • court decided had no Aboriginal right to sell fish and original conviction upheld • did define requirements to meet for protecting Aboriginal rights: • activity must have existed before arrival of Europeans • modern activity must have been practiced continually in similar fashion according to pre-contact fashion (although allowed in modern form) • must meet “integral to a distinctive culture” test • must have been of central significance to the particular First Nations • cannot be done by every human society • all 3 requirements referred to in other court cases • resulted in losses in other cases • Heiltsuk people able to meet requirements in Gladstone case • traditionally trading herring spawn

17. DELGAMUUKW v. THE QUEEN • 1987 two nations, Gitxsan and Wetsuwet’en of Skeena and Bulkley sued BC government for traditional territories • argued use of resources never been extinguished • resource management continues through generations • 1991 court decision dismissed claims • First Nations lives pre-contact were “nasty, brutish and short” • not accept evidence of oral histories recording stewardship of land • BC Court of Appeal 1993 • reversed decision territory rights not extinguished • however, rights did not entitle to ownership

18. Supreme Court of Canada 1997 • agreed to title to land and that trial judge in error no accepting oral histories as evidence • ruled for new trial • suggested treaty negotiation rather than litigation • important points in decision • Aboriginal title more than hunting and fishing rights • right to choose how land used • First Nations to be involved in decisions in use of traditional lands and resources • Aboriginal title may allow First Nations to sell fish under food-fishing license • must show controlled fishery pre-contact • acceptance of oral histories as evidence • province has no right to extinguish Aboriginal title – only federal government can • both governments have moral (and legal) duty to negotiate issues of title in good faith