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

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Whats in a name ?

• Natives
• Indians, Eskimos, and Métis
• Aboriginal, aboriginees, Amerindian
• First Nations
• Their names
• Inuit, Mikmaw, Cree, Mohawk, Nisgaa,
• Siksika, Dogrib, Anishnabe, Dene, Gitskan 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

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Treatiescontinued

• 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 Rightscontinued

• Indian Acts suppress Aboriginal autonomy and
  culture
• Reserve system isolates and marginalizes First
  Nations.

9
Rise of Aboriginal Nationalism

• Rejection of Trudeau Governments 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

• Nisgaa Final Agreement, 1998
• Nunavut Territory, 1999
• Acceleration of more autonomous First Nations
  governance (i.e. Indian bands)
• Land claims and treaty processes continue
• Martin governments 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

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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

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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)

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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

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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.