Aboriginal Peoples and Federalism

1. Aboriginal Peoples and Federalism Douglas Brown Pols 321 St Francis Xavier University November 2009

2. Aboriginal Peoples: Outline of Topics • Names and key concepts • Early treaties and history of rights • Suppression and assimilation • Resurgent aboriginal nationalism • Key developments since 1980s • The Challenge of Self-government

3. What’s in a name …? • Natives • “Indians, Eskimos, and Métis” • Aboriginal, aboriginees, Amerindian • “First Nations” • Their names: • Inuit, Mi’kmaw, Cree, Mohawk, Nisga’a, • Siksika, Dogrib, Anishnabe, Dene, Gits’kan and so on

4. Key terms and concepts • Indian Act / Indian bands/ reserves • Status/non-status • Aboriginal Peoples • Aboriginal rights • Aboriginal title • Self-government • Treaty federalism

5. History of Treaties • Early French and British treaties • Aboriginal nations have autonomy and independence • A confederal relationship with the Crown? • Title to land and resources held unless ceded • Royal Proclamation of 1763 • A Nation-to-nation relationship under Crown sovereignty • Provides protection of aboriginal title to the land (and origins of fiduciary obligation) • Autonomous self-government is inherent and assumed

6. Treaties…continued • “Numbered treaties” with federal government on behalf of Crown: covering parts of Ontario, Man, Sask, Alberta, NWT and BC. • Areas of Canada without treaties or not covered by Royal Proclamation (prior to 1982): • Labrador, Yukon, large parts of NWT, most of British Columbia

7. History of Aboriginal Rights • Early recognition by US courts as “Domestic dependent nations” (1832 US Supreme Court) • Later US restrictions – Congress severely limits aboriginal rights, including title. • Confederation of Canada, 1867, limits practical room for self-government and promotes non-aboriginal settlement, assigns responsibility to Federal Parliament.

8. History of Rights…continued • Indian Acts suppress Aboriginal autonomy and culture • Reserve system isolates and marginalizes First Nations.

9. Rise of Aboriginal Nationalism • Rejection of Trudeau Government’s 1969 “White Paper” • Rise of a national “Indian Lobby” • Growth and diversity of national aboriginal political organizations • Increasingly militant politics • Influence of academic research and post-colonial ideology

10. Key events and developments, 1982-92 • Constitution Act 1982: section 35 entrenches general aboriginal and existing treaty rights and commits to further negotiation. • “Aboriginal round” of negotiations, 1983-87, fails to define key rights including self-government. • Aboriginal peoples left out of Meech Lake process • Aboriginal peoples representatives participate fully in “Canada Round” and in negotiation of the provisions of Charlottetown Accord.

11. Since 1990 • Major court judgments extend and define aboriginal rights: • Calder, Sparrow, Sioui, Marshall • Oka Crisis, summer 1990: armed standoff and greatly increased profile for aboriginal grievances • Royal Commission on Aboriginal Peoples (RCAP) (1991-96) -- redefines the terms of debate towards a nation-to-nation relationship (but not fully acted upon)

12. Last decade… • Nisga’a Final Agreement, 1998 • Nunavut Territory, 1999 • Acceleration of more autonomous First Nations governance (i.e. Indian bands) • Land claims and treaty processes continue • Martin government’s 2005 Kelowna summit to improve health, education, economic and other conditions • Residential Schools apology and compensation package

13. Exercising Self-Government • Supreme Court recognize that s. 35, Constitution Act implies an “inherent right” -- but details still being worked out. • Indian Act constraints -- 640 band councils – considered by some as too small to be effective • Practical concerns: • Fiscal resources • Administrative capacity • Democratic accountability

14. Current Status of Aboriginal Governments in the Intergovernmental System • Partial inclusion in “executive federalism”. • Occasional meetings with FPT ministers for native affairs. • Council of Federation (PT) has met with national aboriginal leadership • Martin had the Kelowna summit, not since repeated. • Provincial governments meet with province-wide aboriginal organizations

15. Perspectives on self-government 1. The Neo-liberal view • Thomas Flanagan book: • Aboriginals not that different from others • There can only be one nation (Canada) • Aboriginal self-government is wasteful and fractious • Do not renew or upgrade treaties • Concentrate on land, economic development and property rights instead

16. Perspectives on self-government 2. 1996 Royal Commission • Restore the nation-to-nation relationship • Consolidate Indian bands into original national groups, i.e. 50-60 First Nations • Settle outstanding land claims, renew and revive treaties • Provide First Nations with autonomous governing authority (third order of government)

17. Perspectives on self-government 3. Cairns’ “Citizens Plus” • Respects notion of decolonization • Recognizes power of aboriginal nationalism • Seeks practical solutions to making self-government better • Concerned that aboriginal nationalism and goals often seek separateness, which cuts them off from solidarity with Canadians

18. Concluding Points • Aboriginal rights are here to stay. • Our system probably has enough flexibility to accommodate their governments. • But, negotiations on self-government and new treaties will take a long time and continuing good will. • Canada and Canadians will be judged on how well we do.