History of the Relationship between Canada and First Nations Naiomi Metallic

1. History of the Relationship between Canada and First NationsNaiomi Metallic CESD 3216 – CESD and the Law January 25-26, 2010 Part 2

2. The Aboriginal people of Canada include: The Aboriginal people of Canada are made up of the Inuit, Métis and First Nations / Indians. Inuit - descendants of original inhabitants of Canada’s north, sharing a distinct culture and language Métis - persons of mixed European and Indian or Inuit culture that developed their own distinct language and culture (per R. v. Powley decision) First Nations / Indians - persons who are not Inuit or Métis; term covers over 50 distinct cutural-linguistic groups such as the Mi’kmaq, Maliseet, Mohawk, Cree, Dene, Algonquin, Blackfoot, Oneida, etc.

3. Out of 33 million people, how many Canadians identify as being Aboriginal? A) 100,000 B) 500,000 C) 1,000,000 D) over 1,000,000

4. Out of 33 million people, how many Canadians identify as being Aboriginal? A) 100,000 B) 500,000 C) 1,000,000 D) over 1,000,000 – right answer

5. Statistics: • 1,172,790 people (or 3.8% of the Canadian population) identify as Aboriginal. • It is estimated that Aboriginal people could account for 4.1% of Canada’s population by 2017. • 30% identify as Métis • 5 % identify as Inuit • 62% identify as Indian / First Nation • 11% as “non-status” Indians • 51% as “status” Indians • The status Indian population in Nova Scotia is 24,200, the largest in the Maritimes, followed by New Brunswick with 17,700.

6. TRUE OR FALSE?The majority of Aboriginal people live on reserves. False. Only persons registered under the Indian Act are entitled to live on reserves. Of the 51% "status" Indians, only 31% live on-reserve. 41% live in cities. 20% live off-reserve in rural areas. • In 2006, 5,320 Aboriginal people lived in Halifax, a 51% increase from 2001.

7. TRUE OR FALSE?When Europeans first arrived in North America, they conquered the Aboriginal people through war? False. The first 200-250 years of interaction between Aboriginal people and Europeans settlers was characterized by reliance, mutual-respect and recognition.

8. Three Eras of Aboriginal ~ Canada Relationship 1 Nation-to-Nation Relations 16th to 19th Centuries 2 Domination & Assimilation 19th to mid-20th Centuries 3 Renewal & Renegotiation mid-20th Century to today

9. The Era of Nation-to-Nation Relations - 16thC to 19thC “For at least 200 years, the newcomers would not have been able to survive the rigours of the climate, succeed in their businesses (fishing, whaling, fur trading), or dodge each other’s bullets without Aboriginal help.” (RCAP)

10. Nation to Nation Relationship • Europeans relied on the Aboriginal people to survive the climate, become familiar with food sources. • Trading partners • Military allies • Europeans recognized Aboriginal people’s laws and customs, and rights to the land. • Aboriginal people seen as distinct nations and British Crown made treaties with on this basis.

11. Peace and Friendship Treaties • Signed between British Crown and Mi’kmaq, Maliseet in 1725-26, 1749, 1752, 1760-61, 1776, 1779 • No rights in the land were given up. • Guaranteed certain hunting, fishing and trading rights to Aboriginal people in return for peaceful relationships and military alliance.

12. Royal Proclamation 1763 Set up a vast “Indian Country” in North America “for the use of the said Indians” Set out rules to govern British dealings with Aboriginal people: Aboriginal people were not to be “molested or disturbed” on their lands Aboriginal lands were to be acquired only by fair dealing: treaty or mutual agreement and purchase by the Crown.

13. Peace and Friendship Treaties Signed between British Crown and Mi’kmaq, Maliseet, Penobscot and Passamaquody in 1725-26, 1749, 1752, 1760-61, 1776, 1779 No rights in the land were given up. Guaranteed certain hunting, fishing, harvesting and trading rights to Aboriginal people in return for peaceful relationships and military alliances with the settlers.

14. Recognition of the Nation-to-Nation relationship by the courts Connolly v. Woolrich (1867), 17 R.J.R.Q. 75 (Sup. Ct.) per Monk J.: “Will it be contended that the territorial rights, political organization, such as it was, or the laws and usages of the Indian tribes, were abrogated; that they ceased to exist, when these two European nations began to trade with the aboriginal occupants? … In my opinion, it is beyond controversy that they did not, that so far from being abolished, they were left in full force, and were not even modified in the slightest degree, in regard to the civil rights of the natives.”

15. TRUE OR FALSE?All the bad things that were done to Aboriginal people happened in the distance past (hundreds of years ago). False. Some of the worst policies and laws imposed on Aboriginal people by the Canadian Government occurred in the last 150 years.

16. Judicial denial of Nation-to- Nation Relationship R. v. Syliboy, [1929] D.L.R. 135 (N.S. Co. Ct.) per Patterson J.: “Treaties are unconstrained acts of independent powers. But the Indians were never regarded as an independent power. A civilized nation first discovering a country of uncivilized people or savages held such country as its own until such time as by treaty it was transferred to some other civilized nation. The savages' rights of sovereignty, even of ownership, were never recognized. Nova Scotia had passed to Great Britain not by gift or purchase from or even by conquest of the Indians but by treaty with France, which had acquired it by priority and ancient possession; and the Indians passed with it.”

17. Era of Domination and Assimilation • 1850s and onwards = change in relationship between Canada and Aboriginal people. • Went from Nation-to-Nation relationship to Domination & Assimilation. • Perceived “Indian Problem”

18. The “Indian Problem” “I want to get rid of the Indian problem. I do not think as a matter of fact, that this country ought to continuously protect a class of people who are able to stand alone. … Our object is to continue until there is not a single Indian in Canada that has not been absorbed in into the body politic, and there is no Indian question, and no Indian Department.” - Duncan Campbell Scott, Deputy Minister, Indian Department, 1929

19. Timeline of policies and laws: 1. Reserves • Goal was to make Indians good, Christian farmers • Prairies – pass system – needed permission to leave reserve The Indian Act - 1868 to today 2. Abolish traditional forms of Aboriginal governance - 1869 onwards • Minister could impose hereditary / traditional system and replace with elected Chief and Council under Indian Act. • Women could only vote in Band Elections in 1951. 3. Criminalize spiritual practices and ceremonies - 1880 – 1951 • Sundance, Potlatch, and then all ceremonies

20. 4. Residential and Indian Day School - 1868-1980s • Indian agents could take children without a warrant • Parents faced fine or imprisonment for keeping kids home or hiding them • Children not permitted to speak language or culture • Often overcrowding, disease, malnutrition, poor education in schools • Physical and sexual abuse was widespread • Most schools started to close in 1980s - last in 1996 • Canada apologized for Residential School in 2008 • Truth and Reconciliation Commission

21. Restrict Aboriginal peoples’ access to the courts to bring claims - 1926-1951 • Couldn’t hire a lawyer to bring claim based on exploitation of reserve land, or other collective claims 6. Control who could be an “Indian” - 1868 to today (A) Voluntary Enfranchisement - 1869 - 1985: • A way for Indians “of good character” (as determined by a board of non-Aboriginal examiners) to be declared “non-Indian. • You had to be assessed by some "competent person" as to whether you had a "degree of civilization" and a "character for integrity, morality and sobriety" making you qualified to be enfranchised (i.e., like a white person).

22. (B) Compulsory Enfranchisement – 1876 - 1951 Automatic loss of Indian status if: Doctor Lawyer Had any type of University degree Became a priest / nun Traveled outside Canada for over 5 years without permission of Minister of Indian Affairs (this big impact on Aboriginal soldiers who fought in WWI and WWII).

23. (C) Definition of “Indian” Status was passed through male line only (1869-1985): “Any Indian woman who marries any person other than an Indian … shall cease to be an Indian in every respect within the meaning of this Act…” Their children also lost status Indian men who married non-native women not subject to same rules. Wives and children gained status. Illegitimate children (1876 - 1985) - could lose status “if the Registrar is satisfied that the father of the child was not an Indian...” Sexist law - women and children lost right to live in their communities and be around family, language, culture In place until 1985, when Canada passed Bill C-31

24. (D) Bill C-31 Removed transmission of Indian “status” through male-line only Returned status to some of those who lost it (over 100,000 people) But still some discrimination based on old rules X’s father was Indian, mother non-Indian = 6(1) X marries a non-Indian X’s child is 6(2) Y’s mother was Indian, father non-Indian = 6(2) Y marries a non-Indian Y’s child is a non-status Indian And now everyone loses status if less than 50% “Indian” (second-generation cut-off)

25. 7. Suppression of traditional subsistence activities (hunting, fishing, gathering) - 1868 - 1970s/80s 8. Banned from voting in federal and provincial elections - until 1960s 9. Banned from drinking in public bars - until 1970 10. Banned from challenging racist laws in Indian Act under human rights law until 2008 – Section 67 of Canadian Human Rights Act

26. Renewal & Reconciliation When did it happen? Attitude shift post WWII Revulsion to Nazi’s racial laws and policies Universal Declaration of Human Rights (1948) Revised Indian Act, 1951 - ban on ceremonial practices and prosecution of land claim removed, but enfranchisement, residential schools remained, as well as discriminatory rules on passing of status Section 87 (now 88) of Indian Act 1951 lets Treaty rights to trump provincial laws Canada Elections Act amended to give “Indians” the right to vote (1960) Human rights legislation – but Section 67 of the Canadian Human Rights Act prevented challenges to actions of governments and Band Councils under the Indian Act

27. White Paper (1969) Proposed elimination of Indian Act and all that remained of special relationship between Aboriginal people and Canada Aboriginal reacted with strong resistance - they saw this form of imposed ‘equality’ as a coffin for their collective identities - the end of their existence as a distinct people National Aboriginal organizations created as a result

28. Calder v. British Columbia (Attorney General) (1973) Supreme Court of Canada recognized Aboriginal Title at common law: “The fact is that when the settlers came, the Indian were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means…” This led the Federal government to change its long policy of refusing to negotiate Aboriginal land claims.

29. Section 35(1) of the Constitution Act, 1982 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. • Came as a result intense political pressure by Aboriginal groups and court challenges • It was intended that Aboriginal rights would be defined through further constitutional amendments...

30. Section 35(1) litigation • But that never materialized and interpreting section 35 has fallen to the courts. • The “promise of s. 35(1)” the Supreme Court of Canada has said is To recognize the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and to reconciled that fact with the assertion of Crown sovereignty over Canadian territory. (Van der Peet,SCC)

31. TRUE OR FALSE?Aboriginal people can hunt, fish and gather anytime, anywhere without a license and without following provincial or federal laws. False. Section 35 has resulted in courts finding Aboriginal groups have rights to hunt, fish and gather without a licence. But rights have to be proved on case-by-case basis, the test is hard and rights can be regulated by government. We will look at more closely in a later presentation.

32. UN Declaration on the Rights of Indigenous Peoples’ Some of the rights it includes: • The right to self-determination including: • the determination of political status; • the free pursuit of economic, social and cultural development, • self-government over internal and local affairs, and • the means of financing those “autonomous functions”. • “The right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their rights to participate fully, if they so choose, in the political, economic, social and cultural life of the State.” • “The right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”

33. End Wela’lioq Naiomi Metallic Burchells LLP 1801 Hollis Street, Suite 1800 Halifax, NS B3J 3N4 t. 902.423.6361 f. 902.420.9326