Canadian Politics: Federalism and Indigenous Peoples in Canada

Canada recognizes 3 groups of indigenous peoples:

The First Nations: (still referred to as Indians) those who are registered under the Indian Act (a status Indian/Registered Indian) or that could register to it

The Inuit: (never registered under the Indian Act) → indigenous peoples located in the Arctic regions of Canada

The Metis: (never registered under the Indian Act) → Red River Settlement, 19th century

Pop of the three groups?

First Nations - 1 million, Inuit - 70k, Metis 600k

How many peoples identified as indigenous in the 2021 census?

1.8 million (vs 1.67 in 2016)

T/F Indigenous peoples are the fastest growing population in Canada and the youngest

True - 42.5% growth between 2006-2016 (safer to identify, more people doing so)

44% under 25 years old

The royal commission established in 1991 after:

the Oka crisis (community of Kanesatake, north of Montreal) 78 day standoff (July-September 1990) between Mohawk protesters and the state

The RCAP had x reports, in 1996; co-chaired by?

5 reports; Georges Erasmus (former National leader, AFN) Rene Dussault (former QC appeal court)

Describe the 1st historical stage, separate worlds

Before the 16th century: unknown unknowns for both societies on each side of the Atlantic

-a variety of political organizations and lifestyles, impacted by surrounding government

-existence of confederal political arrangements

Describe stage 2: nation to nation relations:

16th century to early 19th century: 4 keys ideas to understand this period:

1) mutual curiosity and apprehension → cautious co-operation

2) an exchange of goods

3) trade deals, friendships and intermarriage

4) military and trade alliances, creating bonds between and among nations

Inter-dependence:

“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)

Treaty making (nation-nation relations)

cooperation was formalized through treaties like the Royal Proclamation of 1763:

The Royal Proclamation of 1763 defined: aims for

the rules that were to govern the British dealings with Indigenous peoples (in particular, in relation to the question of access to the land); aims at a balance of allowing Indigenous and non indigenous peoples to divid and share sovereignty (inter-dependence) - though not translated into Indigenous languages

The preamble of the royal proclamation:

Indigenous peoples are not to be “molested or disturbed” on their lands

The 1764 Treaty of Niagara:

2000 chiefs representing 24 nations,

William Johnson, British superintendent wrote:

You may be assured that none of the Six Nations or Western Indians ever declared themselves subjects, or will ever consider themselves in that light, while they have any men or an open country to retire to. The very idea of subjugation would fill them with horror”

Describe stage 3: respect gives way to domination

1800s to 1970s - by 1812 immigrants/settlers outnumbered indigenous peoples by a factor of 10 to 1

-fur trade was dying no need of old economic partnership between traders and trappers

-new economy → timber, minerals, agriculture.. need land not labour from indigenous peoples

-Indians seen as “impediments to progress” instead of partners

-The British defeated all competitors north of the 49th parallel, no need of Indigenous peoples as as military allies

All after Indigenous peoples were no longer needed as military, economic, allies, gave birth to:

The ideology of moral and civilizational superiority- Indigenous peoples would be better off assimilated in the dominant culture

The ideology of moral and civilizational superiority in three key features:

1) Indigenous peoples were “inferior peoples that were unable to govern themselves.. colonial and Canadian authorities knew best how to protect their interests and well-being

2) The special relationship of respect and sharing enshrined in the treaties was a historical anomaly with no more force or meaning

3) the “european ideas about progress and development were self-evidently correct and could be imposed on Aboriginal people without reference to any other values and opinions - let alone rights - they might possess”

T/F the ideology of moral superiority translated into laws

True - BNA Act 1867: “Indians and Lands reserved for the Indians” as a constitutional matter reserved to the federal order of government

T/F → Federal laws replaced “traditional Aboriginal governments with band councils with insignificant powers, taking control of valuable resources located on reserves, taking charge of reserve finances, imposing an unfamiliar system of land tenure, and applying non-Aboriginal concepts of marriage and parenting”, etc. (RCAP

True

What other law encapsulated moral superiority?

The Indian Act 1876, 1880, 1884, etc.. the overarching law that governs relations between state and indigenous communities (amended many times)

What law enabled/justified residential schools?

The Indian Acts

Residential Schools:

foster placement and adoption...: a "cultural genocide"-> Truth and Reconciliation Commission

“Children as young as 6 years old were removed from their families for 10 months of the year or longer. They were forbidden to speak the only languages they knew and taught to reject their homes, their heritage and, by extension, themselves. Most were subjected to physical deprivation, and some experienced abuse. We heard from a few people who are grateful for what they learned at these schools, but we heard from more who described deep scars – not least in their inability to give and receive love.”

Describe the context for stage 4: renewal and renegotiation (1970s-today)

the 1969 White Paper Trudeau wanted to introduce (Settlement of the Government of Canada on Indian Policy Pierre Trudeau ; Jean Chrétien)

→ end of the distinct status for “Indians”

→ dissolution of the department of Indian Affairs

→ repeal of the Indian Act

→ Objective: complete absorption of "Indians" into mainstream society (Canadians, first and foremost, one Canadian ID) no more meaning in "Indian status"

→ kind of a modern replication of Lord Durham's report applied to Indigenous people

T/F the White Papers triggered a new political movement (of resistance) ..took political elites in Ottawa by surprise

True - led to growing sensibility in mainstream society regarding Indigenous/Indigenous relationships , led to institutional innovations (1973)

White papers led to SCC Calder vs Attorney General of BC (1973) Majority opinion

“The fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means...” (this was a turnaround for the SCC to make this statement)

Rejection of terra nulius ("nobody's land) argument (John Locke) argued in favour, not cultivating their land, treating it property, therefore not theirs

-first time it is rejected, groundbreaking

What other event is in stage 4 renewal and renegotiation?

Constitution Act, 1982, Section 35 (1)

“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”

→ The concrete meaning of this provision was unclear... SCC had to define “Aboriginal and Treaty Rights (still difficult to get this recognized today)

Name the 4 key principles as the basis of a renewed relationship (RCAP) (normative)

recognition, respect, sharing, responsibility

Describe the principle of recognition:

-the principle of mutual recognition calls on non-Aboriginial Canadians to recognize that Aboriginal people are the original inhabitants and caretakers of this land and have distinctive rights and responsibilities flowing from that status

-it calls on aboriginal people to accept that non-Aboriginal people are also of this land now, by birth and by adoption, with strong ties of love and loyalty

-it requires both sides to acknowledge and relate to one another as partners, respecting each other’s laws and institutions and co-operating for mutual benefit

Describe the principle of respect

-calls on Canadians to create a climate of postive mutual regard between and among peoples

-respect provides a bulwark against attempts by one partner to dominate or rule over another

-respect for the unique rights and status of First Peoples and for each aborignial peson as an individual with a valuable culture and heritage, needs to become part of Canada’s national character

Describe the principle of sharing

the principle of sharing calls for the giving and receiving of benefits in fair measure

-it is the basis on which Canada was founded, for if Indigenous peoples had been unwilling to share what they had, and what they knew about the land, many of the newcomers would not have lived to prosper

-the principle of sharing is central to the treaties and central to the possibility of real equality among the peoples of Canada in the future

Describe the principle of sharing responsibility

-the hallmark of a mature relationship

-partners in such relationship must be accountable for the promises they have made, accountable for behaving honourably, and accountable for the impact of their actions on the well-being of the other

-because we do and always will share the land, the best interest of Aboriginal and non-Aboriginial people will be served if we act with the highest standards of responsibility, honesty and good faith toward one another

-The RCAP suggest that these four principles take shape in the form of “treaty federalism”

The RCAP suggests what about the 4 principles

-The RCAP suggest that these four principles take shape in the form of “treaty federalism”

Describe treaty federalism

-treaties signed in the course of building Canadian federalism, in particular with the Indingeous peoples as an integral part of the constitutional order

T/F treaty federalism is part of the constitutional Architecture

True - -> every treaty signed is part of it, courts should be able to look into terms of treaties and keep crown accountable

As so many entries in the ledger of the singular political existence of Indigenous peoples in the constitutional order and their status as equal partners in the Canadian political association

What does Prof James Youngblood Henderson say about treaty federalism?

- a constitutional concept that allows Indigenous peoples to (re)take
control of their destinies and political lives ; an essential device to counteract the perverse effects of colonialism

Give a basic definition of treaty federalism

“starts from the premise that Indigenous peoples were and continue to be self-determining polities with their own distinctive legal and political orders”

 

Via treaties -> “Indigenous and Crown authorities have historically established mechanisms to coordinate their respective spheres of jurisdiction and established mutually agreed upon boundaries of self-rule and shared rule”

-another way to define and share the constitutional powers (treaties would be new branches from the trunk, evolve and may reconfigure structure)

Numbered vs historical treaties: (1763-1923)

(most were) Assimilationist policy - numbered treaties (wanted to facilitate this)

-royal proc can be seen as a treaty, treaty of Niagara (historical treaty)

Modern treaties: post 1969 (26 today...) -(not necessarily assimilation tools be can be considered as such)

-first modern treaty actual 1970

 Renewed interest for treaties after the White Paper (direct impact of rejection of white paper strategy)

 -(modern treaties) agreed upon by the state after white papers

“modern treaties are legal documents that, among other things, establish new land tenure regimes as well as co-governance and self-governance arrangements for their Indigenous signatories” (Papillon, 2021: 218) (agreements on land, where self-govern)

→ Now protected under s. 35 (1) CA, 1982... but hard to find application.

How modern treaties work:

 Indigenous signatories agree to “cede”, “release”, “suspend”, or “modify” their “Aboriginal Rights and titles in the claimed area”*

in exchange they receive monetary compensation + legal ownership on a specific, clearly delineated territory

-hunting, fishing, trapping rights

-regional governance system

-++ commitments to socio-economic developments goals

→ sometimes..revenue sharing formulas when resource-extraction projects are involved

Martin Papillons Thesis sees:

Modern treaties as “Janus Faced Institutions”

What are the pros of modern treaties.? (Papillon)

-> Have had a significant impact on the “governance regime” of Indigenous peoples /control of their traditional lands* (self-rule) -lands they are governing are limited compared to original land

-> “Boosted” their institutional capacity -gives legal levers for Indigenous people to self-govern over their territories

-> Enhanced the sui generis recognition of Indigenous identities in Canada

-recognition of indigenous peoples as part of the modern federalist project

What are the cons of modern treaties.? (Papillon)

-> Can become "institutional straightjackets" , limiting policy / institutional innovation (can only perform within the boundaries that the Canadian state upholds)

-> Constrained Indigenous self-determination within the boundaries of the Canadian federal regime

-> Tend to reproduce colonial patterns / institutional reflexes

One treaty, two visions: a clash of motivations From the typical Indigenous’ perspective:

-> Treaties seen as “political compacts” designed to rebalance the power-relation with the State (social contract basically) recognizing unequal power relations but modern treaties will help mitigate this

-> Based on the values of Recognition, Respect, Sharing, Responsibility (RCAP) (two row wampum belt)

-> Constitutionalizes their sui generis rights to self-determination as Indigenous peoples

One treaty, two visions: a clash of motivations From the typical political officials’ perspective:

-> Treaties seen as “legal transactions ” designed to facilitate economic development for the country (no economic development, the state would not be interested in renewing relationship, some say there is a shift in this behaviour but this is realist approach)

->Based on a pragmatic understanding of power-relations with Indigenous peoples (more to lose than to win by not renewing treaties)  state knows that if they do wrong to Indigenous groups, media will report, poor optics

->Quid pro quo arrangements aimed at clarifying (and constraining) the land tenure regime and governance of the Indigenous peoples (mut have something in return - access to resources etc..)

- Treaties as transactional agreements between the all-legitimate State of Canada, and minorities “you can’t ignore politically”  (summary)

- “The goal is to ensure a legal and political context favorable to economic development, notably for extractive industries who seek access to the territory” (Papillon, 2021: 226)

-indigenous groups don’t mind resource extractions, must benefit them

Therefore:

“The underlying message remains that Indigenous peoples’ rights will be recognized only to the extent that they can be reconciled with other (primarily economic) interests in the negotiation of treaties” (Papillon, 2021: 228)

 

The main problem is that “the legitimacy of federal institutions, and the sovereignty of the Crown more broadly, is simply assumed, rather than problematized as the starting point of negotiations” (Papillon, 2021: 228) -first state of agreeing to treaties is recognizing legitimacy of Canadian state

 

-> The main problem -> not all parties agree to the four key principles identified by the RCAP