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Inquiries and Reports – International
Bradford W. Morse
Submission to the Québec Provincial Government
February 2002
This report was a major submission to a Québec provincial government commission a decade ago and has been updated, as per the explanation which opens the document itself. It is not easily excerpted but the full version is presented online by the Québec government at: <www.mce.gouv.qc.ca/e/objets/ 10-BradfordMorse.pdf>.
That full version is recommended for those researchers, students, and practitioners who have time to study it. However, the most narrowly legal aspects of the document are printed below. Separating these from the rest of the context of each nation-state case has its perils but, we conclude, is worth the effort.
This document is important for several reasons. Most obviously it is intrinsically interesting to compare the legal provisions of the major ‘first world’ countries with Indigenous peoples and homelands within and across their borders. But it is also instructive to see the practical use of comparative material in policy discourse by governments abroad and the spirit of reform and improvement which fuels such research and curiosity. That is to say, whereas we are too used to hearing overseas experience cited with disdain for parochial political purposes, it is worth remembering that comparative study is used abroad, especially in the north polar countries grouped in the Arctic Council, as a primary source of ideas and experience — including warnings — for domestic policy-making. Those countries have overcome issues of shame or national pride sufficiently to seek to share common problems and co-operate in their resolution. Such intellectual and political synergy seems likely to accelerate the reform process in Arctic Council countries (USA, Russia, Canada, Denmark, Iceland, Norway, Sweden, Finland) in many areas from local community social ills to environmental management to large constitutional and political frameworks.
Furthermore, despite the constitutional supremacy of federal jurisdiction in respect of Indigenous lives and lands in Canada, this report was requested by a provincial government. Québec has wider aspirations and ambitions than other provinces of Canada, but the commitment of the region to working towards Indigenous solutions is noteworthy all the same. Indeed, the goal of full sovereignty pursued by various Québec governments in recent decades has placed additional stress on the Indigenous-white relationship within the region. As the Morse report shows, Québec has moved a very long way in a short time to address longstanding and major grievances.
Professor Bradford Morse, Law, University of Ottawa, is an Indigenous rights law expert in Canada and is respected and trusted by Indigenous and non-Indigenous people alike in that country. He has long experience as an advisor on constitutional and other issues, as well as a long- time research interest in Australia.
The original study was prepared in late 1991 to early 1992 and was written within the context of a number of critical factors. It was prepared at the request of the Committee to Examine Matters Relating to the Accession of Québec to Sovereignty at a time of major constitutional and social debate and controversy. The proposed constitutional amendments contained within the Meech Lake Accord[1] had expired on June 23, 1990, having failed to meet the three year deadline established by subsection 39(2) of the Constitution Act, 1982 as the amendment package had not been authorized by resolutions of all ten provinces and the Parliament of Canada as required by section 41 for several of the specific changes contained in the Accord.
The deep emotional dispute over the planned use of a Mohawk cemetery as part of an expansion to a local golf course by the municipal government of Oka led initially to peaceful road blocks in the Spring of 1990 but exploded into violence in July between the Surete du Québec and members of the Mohawk community in Kanesatake culminating in the intervention of the Canadian Army and a standoff that subsisted for a further two months.[2] Criminal charges were subsequently laid and tensions simmered for years afterwards that have not yet fully dissipated.
The Spicer Commission[3] was appointed by the Government of Canada to consult with the Canadian public generally about their vision for the future of Québec and Canada. The establishment of this Commission was then quickly followed by a Special Joint Committee of the Senate and House of Commons (better known as the Beaudoin–Edwards Committee) appointed on December 17, 1990 to review the existing constitutional amending formula and suggest changes, and it reported in June of 1991.[4] A further Special Joint Committee of the Senate and House of Commons (better known as the Beaudoin–Dobbie Committee)[5] was immediately created after the prior one had reported with the mandate to inquire into and make recommendations upon the latest proposals for constitutional change that the federal government was planning to distribute after the Committee was appointed.[6] A number of other special committees and task forces were struck in 1991 by a range of provincial legislatures across the country to discuss the desire by some for constitutional change and to consider what positions to adopt regarding specific principles that might arise to guide possible reform.[7]
Prime Minister Brian Mulroney appointed the seven member Royal Commission on Aboriginal Peoples on August 26, 1991 to undertake the most exhaustive review in Canadian history on the position of Aboriginal peoples within Canada with a sweeping mandate including 16 broad themes.[8] The Government of Canada also released a series of discussion papers and launched a national campaign to discuss its proposals for a comprehensive overhaul to the Constitution in the Fall aided by a series of invitation-only ‘public’ conferences across the country convened by regional research institutes in January and February 1992.[9] Another round of constitutional negotiations was then initiated under the leadership of the then federal Minister Responsible for Constitutional Renewal, the Rt. Hon. Joe Clark, with provincial, territorial and Aboriginal leaders in March of 1992. The Government of Québec did not participate formally in these negotiations, later called the Canada Round, until the very end. The agreement reached among First Ministers and Aboriginal leaders in August, called the Charlottetown Accord after the city in which it was finalized, was subsequently rejected in a national referendum on the 26th of October.[10]
The Province of Québec was, of course, not a bystander in the aftermath of the collapse of the Meech Lake constitutional amendments. The National Assembly enacted the Act to establish the Commission on the Political and Constitutional Future of Québec in 1990 that authorized the Belanger–Campeau Commission, which reported the following year after holding extensive hearings within Québec. The National Assembly then enacted the Act respecting the process for determining the political and constitutional future of Quebec on June 21, 1991.[11] This latter statute provided the foundation for the Committee to Examine Matters Relating to the Accession of Québec to Sovereignty for which the original paper was prepared.[12] I appeared before the Committee on March 26, 1992 and my submission, ‘Comparative Assessments of Indigenous Peoples in Québec, Canada and Abroad,’ was quoted by the Committee on several occasions in the section of its report addressing Aboriginal nations.[13]
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The US Constitution does not contain any specific provisions establishing or protecting the existence of indigenous nations or their rights. The Constitution in fact only refers to Indian tribes in passing, with the most important clause being the one extending legislative jurisdiction to the Congress regarding interstate commerce and trade (Art I, s 8, cl 3). This was understandable at the time as Indian tribes were independent nations who represented economic importance in regard to trade and a military threat to the fragile new nation (the latter element is particularly evident in the clause that grants an exception to the general rule that only Congress can wage war where a state is actually invaded or becomes aware of an intention by ‘some nation of Indians to invade such state’). The more general clause declares that Congress has the sole and exclusive right vis-á-vis the states of ‘regulating the trade and managing all the affairs with the Indians, not members of any of the states: provided, that the legislative power of any state within its own limits be not infringed or violated’.
The American courts and Congress quickly built upon the prior British governmental practice and judicial direction in the early years after the Revolution by confirming the existence of aboriginal title. Under the leadership of Chief Justice John Marshall, the United States Supreme Court elaborated the ‘domestic dependent nation’ theory whereby the sovereign status of Indian nations was recognized by the common law, but reduced through the loss of authority to conduct foreign affairs (see, for example, Cherokee Nation v Georgia, 30 US [1831] USSC 6; (5 Pet) 1 (1831)). At the same time, he described the continuing relationship of the Indian Nations with federal government as resembling ‘that of a ward to his guardian’.
The minimal constitutional references to Indian Nations were, however, subsequently interpreted by the courts as granting exclusive jurisdiction to the federal government, as opposed to the states, in exercising the sole authority to deal with the Indian tribes. The US Supreme Court later revisited this interpretation to redefine the import of the Indian commerce clause so that it no longer merely gave to Congress and the executive branch the power to negotiate treaties but instead helped to justify the creation of an extra-constitutional plenary power doctrine. This doctrine, emanating solely from the judiciary (see, eg, United States v Kagama, [1886] USSC 194; 118 US 375 (1886)), grants to Congress unlimited power to pass legislation concerning Indian Nations, their property and their affairs. The net effect of this has meant a critical diminution in the residual or inherent sovereignty of the Indian tribe that was retained under the domestic dependent nation doctrine. Congress can, therefore, intrude upon the sovereignty of Indian nations as it wishes, even to the extent of terminating the existence of a tribe, but that in the absence of any federal statute the residual sovereignty remains.
Thus, Indian tribes possess in theory the sovereign authority to establish whatever form of government that they choose without any general obligation to comply with the United States Constitution or its doctrines championing the separation of church and state or the emphasis upon checks and balances through three branches of government. The passage of the Indian Civil Rights Act in 1968 has, however, imposed a requirement on tribes and their legal institutions to adhere to a number of civil liberties and due process rights that are drawn from the American Bill of Rights (which itself does not apply to tribes). Tribal governments are generally free to pass their own laws regulating membership, law enforcement, administration of justice, economic affairs, general welfare, estates, corporations, family matters, torts, tax, and all other non-criminal matters. This civil jurisdiction can apply in reference to all persons and other legal entities operating within the territory of the tribes. Another example of the status of Indian tribes is that they also possess sovereign immunity such that they cannot be sued without an ‘unequivocally expressed’ waiver of this immunity. This latter doctrine also applies in relation to any entity created by the tribe to manage collective assets.
Tribal governments also can enact a broad range of criminal laws other than those concerning 16 major offences, which have been removed from tribal jurisdiction through federal legislation. By virtue of a US Supreme Court decision (Oliphant v Suquamish Indian Tribe, [1978] USSC 34; 435 US 191 (1978)), tribal governments and their courts have no jurisdiction over non-Indians in the criminal sphere unless expressly so authorized by Congress. The Supreme Court also further restricted the criminal jurisdiction of tribes as applying only to their own members (Duro v Reina, 495 US 696 (1990)). Congress quickly overruled that judgement by statutorily restoring tribal jurisdiction over Indians who are not tribal members. A tribe’s criminal laws, which may be traditional, western or an amalgam of both, are usually enforced by a separate tribal court system containing Indian judges and court personnel. Tribal courts in the US now handle well in excess of 400,000 cases per annum through more than 350 judges and hundreds more lawyers, prosecutors and other court personnel.
Although there is no explicit constitutional provision recognizing and affirming aboriginal and treaty rights, the American courts have generally been relatively positive over the years in articulating the scope of these rights and being vigilant in their protection. As a result, treaties are considered solemn and binding agreements on the federal government that must be liberally construed from the perspective of how they were understood by the Indian signatories. On the other hand, the exercise of Congressional authority to terminate the treaty-making authority of the Executive Branch in 1871 by express legislation was upheld. Since that time, new rights and land settlements have emanated from federal legislation or from the federal courts. As the vast majority of Indian tribes possess existing treaties or special legislative guarantees, the importance of aboriginal rights in the United States has lessened. It continues to retain theoretical vitality as the foundation for internal sovereignty and as the source of aboriginal title to many lakes and rivers as well as ensuring rights to water, which is a particularly relevant issue in the western states, while disappearing in practical terms from current discourse.
Treaties, on the other hand, remain of great relevance as they provide paramountcy for rights to harvest game and fish. Specific treaties have been enforced by federal courts in landmark decisions in the 1970s in Washington (by Judge Boldt) and Michigan (by Judge Fox) resulting in a guarantee of 50% of the fishery for Indian tribes for food, ceremonial and commercial purposes, thereby leading to major realignment of the fisheries and enhancing economic revival for the tribes affected. Treaties also frequently confirm the rights to reservation lands for tribes.
Congress has passed a number of statutes in recent years of interest. As previously mentioned, the Indian Civil Rights Act of 1968 was enacted to extend most of the American Bill of Rights to Indians on reservations (other than the right to bear arms) as the tribal governments were not subject to those constitutional provisions due to their unique position as sovereigns. This Act also sets maximums upon the nature of criminal penalties that can be created under tribal law and order codes and imposed by tribal courts. It also establishes a number of Anglo legal safeguards and due process requirements.
The Indian Child Welfare Act of 1976 is a particularly interesting and relevant statute to indigenous peoples in many countries. Although tribal governments and courts already possessed exclusive jurisdiction regarding child welfare matters arising within the boundaries of Indian country, many tribal children were being apprehended by state, local and private child protection and adoption agencies outside of the reservations. As a result, a significant concern was raised about the high numbers of Indian children that were ending up being raised in non-Indian homes. The response to this crisis by Congress was legislation that compelled state courts to transfer all child welfare cases involving tribal members to the tribal courts of the home reservation, unless the tribal court with jurisdiction refused to accept jurisdiction over the child or if the parents opposed the transfer.
Another Congressional initiative of particular relevance is the passage of the American Indian Religious Freedom Act of 1978. As the title indicates, the purpose of this statute is to guarantee religious freedom and to protect the ‘inherent right’ to exercise traditional religions by Indians, Eskimos, Aleuts, and Native Hawaiians from federal and state laws that might undermine the exercise of these religions and their specific practices, including access to sacred sites and the use of sacred objects.
The final statute especially worthy of note is the Indian Self-Determination and Education Assistance Act of 1975. This law was designed by Congress to compel all federal government agencies to accept the right of Indian tribes to be self-determining and to advance that status in all federal actions, programs and relations with tribes. This Act has helped to a degree in re-orienting the BIA away from its legacy of paternalism and colonialism toward a new era. The BIA is now statutorily required to encourage and support the economic advancement of tribes and the enhancement of their capacity to govern their own affairs. The Act also contains a strong declaration of Congressional policy, which refers to such matters as defining Indian education and self-determination as ‘a major national goal’ while committing the federal government to maintaining its ‘unique and continuing relationship with and responsibility to the Indian people through the establishment of a meaningful Indian self-determination policy’. Financial resources to implement these noble objectives have not, however, been as readily forthcoming as the principles would suggest.
As indicated earlier, the doctrine of aboriginal title was recognized by Congress in the initial development of the law (see, for example, the Trade and Non-Intercourse Act of 1790, and its successors, that adopted the basic provisions contained in the Royal Proclamation of 1763 regarding the purchase of Indian lands). Hundreds of treaties were negotiated between the US government and Indian nations whereby much of the country was ceded to the US while the tribes reserved to themselves certain enumerated rights and lands. The treaties and the assertion of radical title by the federal government formed the foundation for a judicially elaborated federal-tribal trust relationship. Title to all reservation lands and natural resources is held by the United States, unless a particular treaty or statute contains a provision to the contrary, such that the US government must sanction all sales, conveyances, leases, licences or other encumbrances of these lands and resources. The courts have declared that the United States must hold its title to reservation lands as a trustee for the specific tribe. The Indians’ interest, which is ‘as sacred as the fee simple of the whites’ (per Chief Justice Marshall in Johnson v McIntosh 21 US [1823] USSC 22; (8 Wheat.) 543 (1823)), extends to all of the surface and subsurface resources including timber, minerals, sand and gravel, water, fish and wildlife.
The original pattern was for the Bureau of Indian Affairs to exercise total control over such transactions for the supposed benefit of the individual tribes. This reflected the view that the tribes were incompetent to handle their own affairs so as to require the federal government as guardian to intervene to protect its ward. The elaboration of the trust doctrine by the American courts coupled with Congressional legislative initiatives in the 20th century has meant that tribal governments have a far greater say in the way in which the BIA carries out its trustee duties in leasing reservation lands and natural resources (eg, minerals, petroleum, timber, etc.) to third parties than was previously the case. Many Indian reservations are rich in natural resources as nearly 5% of the proven reserves of petroleum, 30% of the low-sulphur coal and over 50% of the uranium in the United States are located upon reservation land.
Despite this resource wealth, many tribes became impoverished as the BIA engaged in long-term leases as low as $2 per barrel of oil and 15 cents per ton of coal. The Omnibus Leasing Act, which was passed by Congress in 1938, imposed certain restraints and safeguards on the leasing of reservation lands including a ten-year maximum for mineral leases entered into by tribal councils. The Secretary of the Interior, however, was declared able to override most of these protections. The more recent Indian Mineral Development Act of 1982 is designed to foster economic self-determination through maximizing the potential financial return for tribes. The Act authorizes tribes not only to lease subsurface resources but also to embark upon joint ventures with the private sector or establish tribally owned mining companies. A number of tribes have become fairly successful economically as a result of this natural resource wealth. A group of tribes has gathered together to form the Council of Energy Resource Tribes (CERT), that has sometimes been called the Indian OPEC.
Possessing and exercising rights to water quantity and quality are of immense importance to the economy in the southwestern United States. The Winters doctrine from the United States Supreme Court [1908] USSC 13; (207 US 564 (1908)), whereby reservations possess rights to appropriate water under federal law that prevail over conflicting rights of use under state law, has also had a major effect upon tribal economic development in the western US as well as upon tribal-state relations.
It is also important to realize that tribal sovereignty has an impact upon this area as it means that the tribes have the authority to legislate in relation to natural resources. Thus, tribes possess the right to tax mineral development on tribal land by Indian or non-Indian companies (see, for example, Merrion v Jicarilla Apache Tribe [1982] USSC 27; (455 US 130 (1982)) and Kerr-McGee Corp v Navajo Tribe of Indians [1985] USSC 93; (471 US 195 (1985)). At the same time, the courts have ruled that state governments have no power to impose taxes upon the mineral royalties that tribes earn or upon the mining companies directly as this would infringe tribal self-government and reduce tribal revenue.
Likewise, tribal sovereign immunity exists in this sphere such that tribes and their wholly owned corporate enterprises cannot be sued without an express waiver. Many tribes do create companies that waive tribal immunity for business purposes while the companies and individual tribal members are, of course, always subject to suit in tribal court. On the other hand, certain federal statutes of a general nature may apply, such as environmental protection legislation.
The indigenous peoples of Sweden, Finland and Norway [who also extend across the Finnish border into the Kola Peninsula region of Russia] call themselves the Sami or Saami (formerly labeled Lapplanders by others), who reside primarily in the far north of each of these countries. There are approximately 100,000 Sami living in all four countries with about 20,000 Sami in Sweden, which represents 2% of the total population of that country. In Finland the numbers appear somewhat lower as there are only 10,000 Sami according to the latest data available out of a total population of 5,181,000. They reside predominantly in the municipalities of Enontekio, Inari, Utsjoki and the northern part of Sodankyla, which is legally defined as a Sami homeland totalling 35,000 square kilometres. Norway has the largest group of Sami numbering just under 50,000 people, which constitute under 1% of the nation. The Sami population is largely concentrated in the northern counties of Finnmark, Troms and Nordland. February 6th is celebrated each year as National Sami Day in all three Nordic countries.
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The Swedish government has been especially sensitive to the interrelationship between language and education. Thus, Sami children have the opportunity of attending government funded Sami schools or the regular municipal schools for the first nine years, with even the latter providing some instruction in the Sami language where numbers warrant. Sami schools also possess some responsibility for curriculum design. The objective of the government is that Sami children, regardless of which school system they follow, will receive the same overall quality of instruction while exposing them to the Sami language and culture. The government of Finland has been more reticent in this regard, however, amendments to the School System Act in 1983 and to the Comprehensive School Act in 1985 have guaranteed special status to the Sami language in the schools within the Sami region in the North.
The Act on the Cultural Activities of the Municipalities of Finland ensures that the Sami language is given an equivalent status to Swedish and Finnish. This has resulted in some media production and radio in the Sami language and other limited initiatives. The Sami Language Act was passed on January 1, 1992. Under the terms of this Act, a Sami has the right to use his/her language with any public authorities. Upon request, the Sami have the right to receive translation services without charge. Any laws, decrees, public notices or decisions of the government must be published in the Sami language. The new Finnish Constitution has also been translated into Sami. In Norway, the Sami people also have the right to use their mother tongue before official institutions, the police, the legal system and health services, as well as to receive replies in their language.
Sweden has also enacted the Reindeer Husbandry Law, which has as its main purpose the promotion of more efficient reindeer breeding while ensuring the opportunity for the Sami to preserve this aspect of their culture and traditional lifestyle. Legislation in this sphere has existed in this country since 1886 with ever increasing levels of state regulation being imposed upon local practices. The current statute provides land and water rights for reindeer breeders but solely as an occupational benefit rather than as an aspect of aboriginal title to traditional land. It does, however, recognize the unique position of the Sami to some degree by granting exclusive rights. If a Sami should cease partaking in this economic activity, then he or she must give up these special benefits granted by the law and tend to be seen as possessing no unique natural resource rights whatsoever. Sweden established a boundary commission in 2000 with a three year timeframe in which to determine precise boundaries for reindeer breeding and winter grazing rights.
Norway has recognized reindeer herding as both a culturally and economically important activity of the Sami since 1854, however, once again the emphasis has been upon regulating the activity rather than seeing it as an aboriginal right. A special pension scheme was set up in 1990 to benefit those Sami who have had reindeer herding as their primary occupation for their entire working life or for a minimum of 15 out of 20 years. This scheme provides a guaranteed retirement pension for any Sami herders who meet this criteria upon reaching the age of 62. Although apparently not based upon the guaranteed income scheme for Cree wildlife harvesters under the James Bay and Northern Quebec Agreement (JBNQA) as a treaty or an aboriginal right, it does bear some interesting parallels to that groundbreaking initiative.
The Sami have had very limited success before the courts in obtaining respect and recognition for their aboriginal rights and they are not generally seen as parties to treaties with the states. A plausible explanation for this limited recognition is that the Scandinavian governments and societies wish to avoid defining themselves as non-indigenous. One important exception can be found in a decision of the Swedish Supreme Court in 1981. In the Taxed Mountains case, the Court decided in favour of the Swedish state by rejecting Sami claims to ownership of certain lands and several types of limited rights of use. The Court did, however, say that Swedish law supported the principle that ownership of land and water could be derived from customary use since time immemorial; that it did not apply to the land claimed but might in more northerly regions; and that reindeer herding was a protected right for the Sami through immemorial use and that its termination or expropriation would give rise to a claim for compensation. This decision led the government to appoint the Sami Rights Commission the following year.
The Sami have had far less success in Norway, where the government has been particularly reluctant to recognize Sami ownership of any portion of their traditional territory or control over the extraction of natural resources. This has occurred despite the recognition that the Sami do have some level of land and water rights. The basis for the acceptance of the latter rights emanates from a decision of the Norwegian Supreme Court in 1862 in which the Court concluded that ‘a definite nomadic right for Norwegian Lapps [to use land and water] ensues from the 1751 Convention, on the basis of reciprocity with rights granted to Swedish Lapps in Norway.’
A more recent decision of the same court in 1982 was far less satisfying for the Sami as their attempt to halt the construction of a major hydroelectric dam, partly on the basis that the dam was alleged to interfere with their aboriginal rights, was rejected. Since the Court seemed to rely on an analysis of the evidence that led the judges to conclude that the risk of interference with the aboriginal rights of reindeer herding was insignificant, the government chose to respond in a conciliatory fashion. Ironically, this defeat for the Sami in the courts has led to a re-evaluation of Sami rights under national and international law as well as sparked new proactive legislation.
The Sami were successful, however, in two major cases before the Norwegian Supreme Court in 2001. The right to graze reindeer on privately owned land within the Selbu local authority was upheld in the Selbudommen case while the Court upheld Sami land rights through prescription in opposition to the state in the Svartskog case. Although a Sami defendant was convicted by this Court in September of last year in another test case (for the minor crime of failing to keep his dog on a leash), the Court indicated that it was prepared to accept that Sami customary law was part of the Norwegian legal system as a result of Article 8 of the International Labour Organization’s Convention 169, however, the evidence in that case as to the specifics of Sami customary law on this topic was too unclear.
The International Labour Organization’s Convention 169, Concerning the Rights of Indigenous and Tribal Peoples in Independent Countries, has received particular prominence in the Nordic countries since its approval in 1989. Norway was one of the first countries in the world to ratify the Convention within a year. The Finnish parliament has not yet ratified the Convention although a parliamentary committee had recommended doing so in 1990. Sweden has apparently decided not to ratify ILO 169 due to concern over article 14, which acknowledges rights to ownership and possession of land as flowing from traditional occupation, however it has acknowledged that the Convention does apply to its Sami population.
There have been some positive developments of note on the constitutional front. The Norwegian Constitution was amended in 1988 to affirm a special status for the Sami by declaring in section 110a that: ‘It is the responsibility of the authorities of the State to create conditions enabling the Sami people to preserve and develop its language, culture and way of life.’ The Finnish Constitution officially protects Sami language rights (in section 17) and further buttresses legislation on the Sami by extending a level of recognition of the distinctness of the Sami through section 121(4). Sweden has no equivalent to these constitutional provisions.
The Sami have retained some level of practical influence over large portions of each country due to their location in the far north and the limited migration inward by other nationals such that the Sami occupy almost 40% of the territory of Sweden and Norway while the Sami homeland in Finland designated by Cabinet formally in 1973 reflects almost 10% of that nation. On the other hand, the Sami have yet to achieve success in any of the three Nordic countries concerning their efforts to have aboriginal title or natural resource rights recognized at law.
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Although still officially a part of Denmark, the country was granted Home Rule by the Danish Parliament by ordinary statute in 1979. As a result, the people of Greenland now possess full control over education, culture, land use, the economy and internal political matters. The Danish Parliament retains control over foreign affairs, the military, currency and a limited range of subjects that directly affect the lives of Greenlanders (eg, criminal law).
All Danes and Inuit have the right to vote for and to be elected to serve in the Parliament of Greenland. The territory is divided into 18 municipalities. These municipal governments, which are also elected, exercise limited jurisdiction over local matters. It is the Home Rule Government and the Parliament of Greenland, however, that have the dominant governmental role in the lives of the people. Somewhat similar to the situation in the Northwest Territories and Nunavut Territory of Canada, the bureaucracy still contains many Danes in senior and technical positions while the Parliament and Cabinet is far more representative of the ethnic make-up of Greenland as a whole. One of the unfortunate by-products of the difficulty in fostering higher education among the Inuit population is that there are not enough Greenlanders with the experience and expertise necessary to assume many of the senior positions within the bureaucracy that have heretofore been filled by Danes. This also impacts upon the degree to which Danish has retained much of its presence as the language of the senior civil service.
The Home Rule government is responsible for the overall administration of all primary and lower secondary schools through its Directorate of Culture, Education and Labour Market. Each municipality also exercises responsibility over public education for the lower grades. There is as well a three-year program of upper secondary courses regulated by the Home Rule government that leads to exams that will determine the potential for further education. Limited tertiary education is available in Greenland, however, more specialized studies require attendance at universities in Denmark or elsewhere. A growing number of students are now pursuing their studies in Canada and the USA.
Control over health services in Greenland was transferred from the Danish Ministry of Health to the Home Rule Authority on January 1, 1992. The Greenland Officer of Health is in charge of public hygiene, food control, environmental protection and the control of infectious diseases. The Greenland government is now responsible for the provision of medical services and hospitals, which are available to all free of charge.
All land in Greenland is considered public property. Formally held by the Danish government in the name of the Crown, the Home Rule Government now exercises full authority over the development and use of all land. Since construction costs are very high due to the small market, the high transportation costs due to the distance from the production of building materials, and the climate, substantial housing subsidies are available. The Home Rule Government provides a number of programs consisting of grants and low interest loans for the construction, acquisition, repair and improvement of homes, however, most housing is owned by the government.
Inuktitut, or Greenlandic as it is called locally in English, is recognized as the main language of the population. Almost all Inuit have retained fluency in their own language. Both Greenlandic and Danish have the equivalent of official language status. While Danish remains the more common in many governmental circles, public services are required to be offered in both languages.
The normal language of aboriginal and treaty rights does not truly fit the Greenlandic context. Since the Inuit are the majority population and control the government that has authority over almost all important internal matters, there is no need to obtain constitutional or legal guarantees of exemption from externally imposed laws [subject to the risk that the Danish Parliament could repeal the legislation that gave rise to the home rule regime]. Public ownership over all lands and resources also ensures that the Inuit majority will be able to protect traditional interests and control development as they think best. The Inuit are themselves the legislators and the decision-makers such that they can readily protect their own cultural, linguistic, economic and political interests. This does not create a paradise as there are critical economic and social problems, which themselves give rise to an increase in crime. Nevertheless, through home rule the Inuit possess the opportunity to address these problems in their own terms and to determine their own future.
For the same reasons as in relation to the absence of aboriginal and treaty rights, the Inuit of Greenland do not have any particular guarantees or rights in relation to renewable or non-renewable surface and subsurface resources. As a public government, these resources are owned by the state and managed by the Home Rule Government for the benefit of all Greenlanders, both Inuit and Danes. There is, however, a great concern to protect the environment and to authorize land development only in ways that will not be disruptive to people who are living off the natural resources of the lands and seas.
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The British and a number of the Maori chiefs of the North Island negotiated the Treaty of Waitangi in 1840, which was subsequently adhered to by many other chiefs throughout the country. The Treaty is widely regarded as the founding document of the new land as it structured the original relationship between the British Crown and the Maori people. The Treaty was negotiated and recorded both in English and in Maori, however, the significant differences between the two versions has been a source of continuing controversy ever since its signing. The Treaty not only created a strong link between the two societies and their political representatives, but it has also come once again to symbolize the partnership and commitment to mutual understanding between the two cultures. Great debate has ensued, however, over whether the chiefs surrendered complete sovereignty or merely control over external affairs while preserving internal sovereignty (their tino rangatiratanga). At the very least, both sides agree that it confirmed the continued land and traditional economic rights (especially over fisheries) of the Maori people.
The Treaty was not property respected or implemented for many years, even though the courts ruled early on (in R v Symonds (1847), [1840–1932] NSPCC 387 (NZSC)) that the Treaty as well as the common law recognized the aboriginal title of the Maori. Part of the rationale for this deficiency was the failure of the Treaty to be ratified by Parliament coupled with the absence of any written constitutional guarantees in a unitary state such that the Diceyan view of parliamentary supremacy allowed the government to ignore its treaty obligations. The Chief Justice of New Zealand subsequently ruled in 1877 that the treaty was unenforceable as he refused to recognize the Maori as possessing sufficient legislative sovereignty to enter into binding treaties (Wi Parata v. Bishop of Wellington, 3 JUR (NS)).
This unfortunate history began to change with the passage of the Treaty of Waitangi Act in 1975. This statute created an independent and bicultural tribunal to receive complaints and hold hearings into alleged treaty violations. Although the tribunal’s jurisdiction was not invoked for sometime thereafter, the Waitangi Tribunal has become very active over the past fifteen years. Its primary mandate is to examine any disputes, determine the appropriate interpretation of the Treaty’s terms within the context of the complaint, and to recommend practical resolutions. The Tribunal conducts its own research, hears evidence and receives legal submissions based upon which it issues a specific report with its recommendations. The experience to date is that almost all of its proposed solutions has been accepted by government even though its decisions are not binding. (The Tribunal does possess limited authority to render binding judgements in relation to certain Crown assets, but this has not yet been invoked.) Its major conclusions have included providing a guaranteed share of the fisheries for the Maori (through the Muriwhenua Fishing Report (1988) that led to the passage of the Maori Fisheries Act 1989 that set 10% of the total available catch for exclusive Maori use through negotiations), the rejection of a pipeline that would have damaged the beds of a traditional shellfish harvest area and upholding several major land claims. In recent years it has also been pursuing claims for water rights, ownership of river beds and petroleum resources.
The Tribunal’s report of treaty fishing claims led to the creation of the Maori Fisheries Commission under the Maori Fisheries Act 1989 with an initial 10% commercial quota. This later sparked the enactment of the Treaty of Waitangi Fisheries Commission Act. Under this Act, the Commission of Maori leaders was appointed by the government to manage the commercial fish quota allocated to the Commission for exclusive Maori use as well as the corporate entities created or purchased by the Commission to use or lease out the Maori quota. Some of the iwi have also established their own fishing companies. As a result of very effective management and the purchase of the largest fishing company in New Zealand (Sealords), the Maori now directly or indirectly control over half of the commercial fishing quota while becoming global exporters. On the down side, the allocation of quota and the provision of NZ$170 million to purchase an initial half interest in Sealords along with a guarantee of 20% of any new species made available was in return for the extinguishment of a general commercial fishing right under the Treaty.
Several of the Tribunal’s reports upholding land claims of Maori iwi or whenua (somewhat akin to a sub-tribe or band) caused the government to establish a treaty claims branch and to agree to engage in land claims negotiations. A compensation fund capped at NZ$1 billion (although increased annually based on the national inflation rate) has been created to settle all claims. Several major settlements have been reached over the past seven years involving the return of significant amounts of Crown land, assets and cash. The Office of Treaty Settlements has paid out $635,722,000 NZ to date in cash compensation for land claim settlements along with providing some Crown lands. These payments have ranged from very small settlements (eg, the Te Ngae farm claim of the Ngati Rangiteaorere for $0.76 million) to very large ones (eg, the Ngai Tahu settlement of $170 million). The Tribunal continues to receive 50–80 claims per year with 869 claims registered as of September 2000. One of its major difficulties has been that the process has been relatively slow with new claims filed at a much faster rate than the Tribunal has been able to handle resulting in a growing backlog and recent efforts to streamline the process.
The former Lange Labour Government had established four principle objectives to guide all policy, namely:
1. to enable Maori to achieve standards of excellence comparable to the best international standards;
2. to ensure Maori are able to participate fully in decision making;
3. to ensure that the Maori language and culture is preserved and enhanced; and
4. to deal speedily and fairly with outstanding grievances.
Although governments have changed on several occasions over the intervening years, these principles still appear to guide national policy. One of the methods used to meet these objectives was to include an interpretive cause in all relevant statutes whereby it is directed that the legislation is to be interpreted in accordance with the terms of the Treaty of Waitangi and to advance its purpose. Another highly interesting statutory initiative was the passage of official language legislation through which New Zealand recognized both English and Maori as having equal status (the Maori Language Act 1987). In doing so, senior New Zealand officials closely studied the Canadian experience with official languages and adopted bilingualism based largely upon the Canadian model.
A further important achievement was the passage of the Resource Management Act, 1991. It is designed to promote sustainable development of both natural and physical resources. Among its many provisions it defines the relationship of the Maori and their culture and traditions with their ancestral lands, water sites and sacred sites as matters of national importance. The Maori interest in natural resources must be considered in the development of all regional land use plans and in the review of major economic or other development projects likely to impact upon Maori environmental interests.
Another 19th century initiative designed for a colonialist purpose was the creation of the Maori Land Court. Its raison d’être was to facilitate the leasing or sale of remaining Maori lands to pakeha (non-Maori). These lands were declared by statute to be held in tenancy in common and to pass on to future generations through inheritance by will or intestacy. As the number of descendants increased in relation to any particular property it became progressively more difficult to find suitable uses agreeable to all legatees such that conveyances and leases to pakeha became favoured as the most viable means of creating assets that were easily distributable among large numbers of beneficiaries in the form of cash. The Maori Land Court still exists, however, its standing in Maori eyes has dramatically improved over the last fifteen years as many of the judges are now Maori and those pakeha on the bench are very knowledgeable both in this branch of the law as well as in reference to Maori customs and aspirations. In many ways, this Court played an instrumental role in the latter half of the 20th Century in keeping intact what remained of Maori lands still under Maori control. Several members of this Court, including its Chief Judge and Deputy Chief Judge, are members of the Waitangi Tribunal.
The final point to mention is the passage of the Runanaga a Iwi Act in 1990. This legislation was designed to extend legal authority to the iwi or to structures they designated so that they could receive and distribute government funds as well as formally enter into contracts. The Act would also have given full effect by legislation to tino rangatiratanga (the governmental authority of the chiefs referred to in the Treaty), thereby allowing the iwi authorities to take complete control of their resources. Much of the tribal lands at present are instead in the control of Maori trustees elected by the beneficiaries. The Act would have, in effect, created a form of Maori local government. It was, however, never fully implemented as it was repealed in 1991 after a change in government. As a result, there is a broad array of Maori corporations, boards, and trusteeships but no recognized governments similar in nature to the North American experience. The Ngai Tahu of South Island did obtain special legislation modelled in large part on the Runanaga a Iwi Act that comes closest to American Indian tribes and Canadian First Nations in that they possess an elected political structure with a statutory basis that confirms certain limited powers. The Ngai Tahu has been extraordinarily successful in rebuilding their tribal identity while also creating a powerful economic foundation over the past decade.
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The Constitution Act, 1867 assigned exclusive responsibility to Parliament under section 91(24) for ‘Indians, and Lands reserved for the Indians’. This gave Parliament two heads of legislative jurisdiction as it could enact laws for both the people referred to in the Constitution as ‘Indians’ and also in relation to all of the lands that remained unceded territory (which is not the same as Indian reserves set aside under the Indian Act.) Parliament has exercised this authority since 1868 by passing legislation in relation to some of the Indian people and some of their lands.
The jurisdiction of Parliament regarding ‘Indians’ was determined by the Supreme Court of Canada to include the Inuit (in Reference re Eskimos in 1939) and has been used by Parliament to vary the definition of Indians narrowly or broadly over the intervening years. While the federal 91(24) jurisdiction was traditionally viewed as permissive rather than mandatory, this may have changed as a result of the development of the fiduciary obligation doctrine by the courts upon the Crown in right of Canada since the Guerin decision in 1984 and the terms of s 35 of the Constitution Act, 1982. It is also possible that the hints from the judiciary about a provincial sphere to fiduciary obligations concerning Aboriginal peoples may temper suggestions that the existence of the s 91(24) head of power requires federal action.
What is clear is that the Parliament of Canada has not exercised its legislative jurisdiction in reference to the Inuit anywhere in the country, although the federal government has assumed the financial aspects of the authority in practice in Québec by taking over certain expenditures for health and social services for the Inuit after the Supreme Court’s decision.
The position of the Métis in regards to s 91(24) has remained a subject of legal and political debate for many years with the federal and Alberta governments taking the view that the Métis do not fall within s 91(24) while all other provinces and most commentators, as well as the Métis, assert the contrary perspective. The Government of Alberta has expressed concern over the years about this issue as it has maintained Metis legislation since the 1930s regarding a number of settlements set aside for exclusive Metis use during the Depression and it has not wanted this regime to be struck down as ultra vires. During the Charlottetown Round of constitutional negotiations in 1992 it endorsed an amendment that would confirm the inclusion of the Metis within s 91(24) coupled with a further amendment that would protect its Metis settlements legislation. Although in my opinion the Métis are within s 91(24), the continuing uncertainty in this regard has left the Métis as a political football passed back and forth between the two levels of government resulting in limited special legislation outside Alberta and few governmental initiatives designed to meet their needs. The Government of Saskatchewan has recently broken the mold somewhat by enacting the Metis Act and proclaiming it into force in February 2002. This new statute recognizes the contributions of the Metis to that province and creates a vehicle for future bilateral initiatives. Its preamble makes clear, however, that ‘nothing in this Act is to be construed as altering or affecting the position of the Government of Saskatchewan that legislative authority in relation Metis people rests with the Government of Canada pursuant to section 91(24) of the Constitution Act, 1867.’
In addition to the Indian Act, the federal government has absorbed the role formerly reserved to the Imperial government of negotiating treaties in the name of the Crown. Literally hundreds of treaties were negotiated with the Indian nations in the pre-confederation era in what are now the Atlantic provinces, southern Québec, southern Ontario, and Vancouver Island. Since 1867, the Crown in right of Canada has entered into 11 numbered treaties in northern Ontario, the Prairie Provinces, northeastern British Columbia and parts of the Yukon and NWT as well as the 1923 Treaty in southeastern Ontario. These treaties and their subsequent adhesions, along with those from the earlier era in Upper Canada, on their face share in common the surrender of exclusive land rights to the Crown by the Indian parties in return for annuities, confirmation of wildlife and fishing harvesting rights, the preservation of certain lands for exclusive Indian use as reserves, and other specific commitments (eg, promises of ammunition, agricultural implements and a tax exemption in Treaty No 8 and a medicine chest clause in Treaty No 6). The Indian version of many of these treaties and their surrounding oral negotiations, however, differs dramatically from the written version in English.
The Inuit, with a few minor exceptions, did not sign any treaties as there was little interest in their traditional territories until the latter part of the 20th Century.
The land rights of the Métis were sporadically recognized as, for example, through signing the adhesion to Treaty No 3 in Ontario as a distinct indigenous people. The more common approach was for the Métis frequently to join in the treaties with their Indian relatives or to take scrip under the Manitoba Act and subsequent Dominion land legislation. As implemented under federal laws, which are currently being contested before the Manitoba courts in the Dumont case by the Manitoba Métis Federation and the Native Council of Canada, scrip entitled the holder to exchange this certificate for a specified number of acres of land to be held in fee simple by the individual rather than collectively, as in the case of reserve lands. Much of the scrip issued was exchanged with land speculators for cash and has given rise to allegations that the federal government participated in or turned a blind eye to a widespread pattern of extensive fraud through which very few Métis indeed received their allotted land.
The Constitution Act, 1982 has dramatically changed the relationship between all Aboriginal groups and the rest of Canada. Not only does s 25 of the Charter protect ‘aboriginal, treaty or other rights or freedoms’ of the Aboriginal peoples from being abrogated by the remaining provisions of the Charter, but s 35 confirms the ‘existing aboriginal and treaty rights’ as part of the ‘supreme law of Canada’ (s 52(1)).‘Aboriginal peoples’ is also defined in s 35(2) so as to clearly include ‘the Indian, Inuit and Métis peoples’, while their unique rights have been guaranteed equally among female and male Aboriginal persons through the 1984 amendments adding s 35(4). These latter amendments also made certain that prior and future land claims settlements will receive the same constitutional status as treaties (through ss 25(b) and 35(3)) so as to encompass the two settlements reached in the 1970’s in Québec. The Constitution Act, 1982 was further altered in 1984 to ensure that no future amendments to the constitutional provisions that explicitly apply to Aboriginal peoples can occur without the Prime Minister previously having convened a First Ministers’ Conference to which Aboriginal representatives will be invited (s 35.1).
The effect of these provisions has had a profound impact upon the jurisprudence as well as upon the political stature and public profile of the Aboriginal peoples in Canada. The precise nature of the changes in the case law that has occurred over the past twenty years outstrips the scope of this paper but suffice it to say that our perceptions of what constitutes a treaty has been broadened considerably by the decisions of the Québec Court of Appeal and Supreme Court of Canada in the Sioui case while it is now clear as a result of the latter court’s decision in Sparrow that aboriginal and treaty rights can render federal and provincial laws inapplicable to Aboriginal people in appropriate situations. The Court also recognized in Sioui that Aboriginal peoples at least once constituted independent, sovereign nations (without commenting upon their current status) who could enter into treaties as such with the Crown and its representatives.
The Supreme Court of Canada has further developed a new doctrine called fiduciary obligations in the Guerin and Sparrow cases and stated that it applies to restrain the behaviour of both federal and provincial governments in the way they deal with Indian, Inuit and Métis peoples. The Supreme Court in the Simon case also made it clear that treaty rights are not limited to status Indians but can apply to any descendant of the treaty beneficiaries. The Court further elaborated a test and an approach to interpreting treaties that requires that they be given a liberal interpretation from the perspective of the Aboriginal party in light of all the evidence surrounding the negotiations of the treaty concerned. This position in Simon has been repeated on a number of occasions subsequently including the Sioui, Badger and Marshall decisions. A similar liberal approach to statutory provisions conferring benefits upon Aboriginal peoples was declared to apply in the Nowegijick case.
Our highest court has issued a number of other critical pronouncements in the 1990s. The judges declared that aboriginal rights exist across a spectrum from aboriginal title granting exclusive possession at one end of the spectrum to land based rights exercised within traditional territory to practices or customs that are ‘integral to the distinctive cultures of aboriginal peoples’ but are non-site specific rights at the other in two cases arising from Québec (Adams and Coté). The Supreme Court jettisoned any lingering questions concerning the continuing relevance of aboriginal title in the modern era in Delgamuukw while suggesting that the test for aboriginal title may have to be modified to accommodate the post-contact reality of the Metis. On the other hand, the court also declared that aboriginal rights must be grounded in the specific factual context of a particular Aboriginal Nation which must prove that the rights in question were and continue to be integral to their distinct identity today (in Van der Peet, Gladstone, Pamajewon and others).
In 1999 the Supreme Court had its first opportunity to grapple with the interrelationship between s 15 of the Charter and aboriginal legal issues in the Corbiere case. The Court accepted that ‘aboriginality-residence’ was an analogous ground to those specified in s 15(1) and the Indian Act election rules excluding off-reserve members from voting was discriminatory and unconstitutional. On the other hand, the Court made clear in Lovelace that an Ontario government scheme to share profits from an on-reserve casino among all First Nations recognized under the Indian Act, thereby excluding Metis and unrecognized Indian communities, was not a violation of s 15 as favouring one somewhat similarly situated disadvantaged group with an ameliorative initiative over another was not discriminatory within the sense of s 15 at the expense of the groups omitted as more than mere economic prejudice was required since the more restrictive accommodation did not truly exclude the Plaintiffs from ‘access to a fundamental social institution’ or ‘a basic aspect of full membership in Canadian society (eg voting, mobility).’ The Court did, however, determine that s 15 applied not merely to ‘laws’ but to government programs as well.
Federal legislation has also been used on occasion to advance the Aboriginal agenda in recent years. The Kanesatake Interim Land Base Governance Act was passed and received Royal Assent on June 15, 2001 to implement an agreement reached between the Mohawk Council and the government that recognizes certain lands as falling within s 91(24) although not being reserve lands under the Indian Act. It also provides statutory assurance that the Kanesatake Council has a legal foundation on which to adopt its own laws and regulations over land-related matters on its land base, as well as the necessary authority to enforce those laws. In addition, the Act sets out a framework intended to foster a constructive dialogue on harmonization between Kanesatake and the Municipality of Oka.
The Parliament of Canada has also enacted the British Columbia Treaty Commission Act in 1995, the Mi’kmaq Education Act in 1998, the First Nations Land Management Act in 1999, and a large number of individual land claim settlement implementation statutes over the past decade concerning First Nations in Yukon, Northwest Territories, Manitoba, Saskatchewan, and Nova Scotia. With approximately 80 self-government negotiations underway across the country, one would anticipate that the face of governance in Canada will continue to change in the years ahead.
Canadian law has, therefore, evolved quite dramatically indeed over the past two decades concerning First Nations and the Inuit. The appeal by the Ontario government of the Powley decision to be heard later this year by the Supreme Court of Canada may give rise to similar breakthroughs for the Metis.
From a Canadian perspective, how do these countries compare? There is no definitive answer possible. No doubt one’s national origin will influence any such comparative assessment. Furthermore, engaging in any type of ranking exercise immediately leads to subjective elements of priorizing among competing values. Is possessing constitutionally protected rights (Canada) more important than having a much larger land base yet vulnerable to disappearance (Australia)? How important is a longer life span (Canada)? For example, one might say that Canada looks very enlightened and positive in relation to Scandinavia and Australia but far less so when examined in comparison to many aspects of American and New Zealand policy. Even these statements are crude, however, as there are aspects of the Canadian experience that are better than other countries under inspection as well as facets that are far worse. It is necessary, therefore, to examine certain key points of analysis more closely.
The existence of constitutional protection for aboriginal and treaty rights is unique to Canada among the countries studied, although constitutional guarantees of rights for indigenous peoples are also present in the new constitutions of Brazil, Columbia and Nicaragua, among other countries. On the other hand, the right of Aboriginal peoples to govern themselves and determine their own futures under their own laws has yet to be fully recognized in Canada as it has been in the United States for over 200 years. This has occurred even though the Canadian doctrine of aboriginal title has been based largely upon the same decisions of the US Supreme Court that articulated the ‘domestic dependent nation’ concept of residual Indian sovereignty at the same time as confirming the existence of aboriginal rights and title as part of the common law. Indian tribes in the USA, therefore, have clear jurisdiction to enact all civil laws to apply to anyone within their territory along with criminal laws over Indians, except for 16 major crimes.
Aboriginal peoples may have the same or similar sovereign status in Canada protected by s 35 of the Constitution Act, 1982, but Canadian courts have not yet declared that Canadian law incorporates this aspect of the American jurisprudence. No legislature has yet enacted a general statutory confirmation of self-government or sovereignty either, although the federal government has adopted a policy that an inherent right to self-government is contained within s 35(1). The official position of the federal, several provincial and all three territorial governments is that the right of self-government or internal sovereignty exists without a further requirement for a constitutional amendment. These governments are seeking to negotiate self-government agreements with First Nations to establish the scope of Aboriginal governments and conflicts of laws rules rather than agreeing to blanket general recognition of jurisdiction.
The Nisga’a Nation Treaty represents the first such confirmation of the right to self-government as being constitutional in nature and elaborates the jurisdiction of the Nisga’a Lisims Government. This Treaty has been implemented through complementary British Columbia and federal statutes. The Nisga’a Lisims Government has now been functioning for almost two years during which time it has enacted a number of laws. A series of self-government statutes have also been enacted by Parliament and the Yukon Legislature over the past ten years for seven First Nations, however, they rights contained therein are not yet protected by s 35.
The majority of provincial governments, however, continue to refuse to accept an inherent right of self-government as an existing right under the Canadian Constitution. Instead, they assert that no Aboriginal government can exercise any jurisdiction beyond what is delegated under positive law that includes the required approval of the effected provincial government.
The Indian and Inuit peoples in some parts of Canada are clearly seen as having a legally recognized interest in their traditional lands such that land claims settlements have been reached in recent years or are under active negotiation. These settlements look reasonably good in comparison with the position of indigenous peoples in the other countries examined. On the other hand, the Métis are excluded from land claims negotiations in Canada except in the NWT (and possibly in Labrador where a claim has been filed with the federal government by the Labrador Métis Association and is under review by the federal Justice Department), while non-status Indians are likewise left out except in the northern territories and in Labrador concerning the Innu. From the perspective of southern Métis and non-status Indians, the Canadian policy appears to be one based on aspects of segregation and inequality tied to federal recognition solely of bands and Inuit communities that renders Canada worse than all of the other countries under review. The colonialist inspiration for the Indian Act still plays a significant role in 2002 in defining the nature and content of federal and most provincial policies on land claims.
If one considers aboriginal questions from the vantage point of total land quantum that is currently in the hands of or dedicated for the exclusive use of the original owners of the land, then Australia has the best record by far even though its courts had failed to accept the application of the common law doctrine of aboriginal title to that nation until 1992. Nordic treatment of the Sami would then deserve the worst rating with New Zealand a close second. Greenland would be poorly assessed if the criteria was exclusive possession of land but would be the highest ranked if one focussed instead on effective indigenous control over territory as the key.
The American Indian tribes are also in the best position in terms of recognition of their rights over natural resources within their reservations as well as in their treaty areas. They have further obtained the most recognition for their aboriginal rights to water and the beds of waters. Congress has been pursuing a number of positive legislative initiatives over the past 30 years that are in keeping with its recognition of the sovereign status of the tribal governments and their needs for economic and social assistance in order to become fully strong and self-sufficient communities. On the other hand, Congress has most recently been imposing severe budget cuts on the BIA while also starving statutory mandates (such as in the area of tribal justice) and threatening to roll back certain advances gained in recent years (eg, in gaming).
Canada does, however, appear to make the largest devotion of fiscal resources to the indigenous population of any of these nations on a per capita basis, while the USA has the largest bureaucracy employed on aboriginal affairs. Canada is achieving the best success in secondary education and improved health care while the USA has had the most success in post-secondary education training of professionals. Interestingly, the United States even with its emphasis on private medicine has devolved less control over health care matters than has either Australia or Canada. On the other hand, there are 25 colleges under tribal control in the United States, which far surpasses the situation in any other nation.
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If one attempts to examine objectively the record of the federal government in comparison with other countries, and of Québec in relation to other provinces within Canada, one cannot help but conclude that the performance of both Québec and Canada has been superior, relatively speaking, in most areas. This is not to suggest that the record has been outstanding, as the effects of colonization and dispossession of the Indian, Inuit and Metis peoples have been tragic beyond belief. Our history has been one in which our European ancestors at an early stage pursued positive and respectful policies toward the Nations they encountered due to economic, political and military self-interest. This attitude, however, was quickly jettisoned when the motivating forces disappeared and our self-interest switched to favour oppression and assimilation so as to facilitate the purchase —or theft — of their lands and its resources as well as the denial of their inherent rights to maintain their ways of life, traditions, cultures, religious beliefs, laws and governments. The history of colonization in the land now called Canada has been an unmitigated disaster from the perspective of Aboriginal peoples and from the view of any neutral observer.
It has only been over the past three decades that as a society we have moved away from the policies of complete assimilation that was championed in the federal White Paper of 1969. This has not been an easy transformation in the thinking and attitudes of non-Aboriginal peoples — nor has this change been accepted by all. This change has, however, been made far more difficult for federal and provincial governments that have vigorously resisted the development of a new relationship based upon mutual respect and the sharing of the bounty of this land that was at the cornerstone of the original relationship symbolized by the treaties of peace and friendship of the Atlantic and the Two Row Wampum of the Iroquois Confederacy of the 1600s and 1700s.
Significant progress has been made over the last thirty years spurred on as a result of a number of major court cases, the constant pressure of Aboriginal peoples and their political organizations, the receptivity of the Canadian public to Aboriginal demands, the constitutional changes of 1982 recognizing and affirming the ‘existing aboriginal and treaty rights of the aboriginal peoples of Canada,’ the perception that prior policies were a disaster, numerous inquiries and parliamentary reports and the acceptance by at least some governments that justice and Canadian law required the negotiation of new arrangements. This progress should not be underestimated as we have come a long way in the legal and political arenas.
On the other hand, governments should not be quick to pat themselves on their collective back for doing what they are often compelled by the courts to do in order to honour their legal obligations. Likewise, the fact that Québec and Canada appear reasonably progressive when compared to a number of other western economically developed countries says more for how poor the track record is in those other regions than serving as a commendation for our performance. It must also be noted that our ‘achievements,’ if they can truly be called that, have been regionally limited within both the country as a whole and within Québec. While Québec has a very impressive record in comparison to other provinces when examining province-wide data, the achievements decline dramatically when the effects of the James Bay and Northern Quebec Agreement and its aftermath are excluded. Other major initiatives on the legal and policy fronts within Québec and within Canada as a whole are similarly limited to particular Aboriginal groups or regions of the country and province.
Therefore, there is still a very long road to travel before the Governments of Canada and Québec can properly claim to be global leaders in developing a new relationship with indigenous peoples that throws off the remaining shackles of colonialism and apartheid policies. Far too many Aboriginal people continue to live in third world conditions confronted by little more than poverty and despair despite the richness of their original territory and the achievements reached by generations of immigrants to their lands. We have yet to accept fully that a proper basis for our future is mutual respect of our differences, including the Aboriginal desire for autonomy or self-determination, while forging true partnerships for the enjoyment of this territory and in the decision-making that will regulate our collective future for the betterment of all. ?
[1] For a detailed discussion of the contents of the Meech Lake Accord see, eg, Ronald L Watts and Douglas M Brown (eds.), Canada: The State of the Federation 1990 (Kingston: Institute of Intergovernmental Relations, Queen’s University, 1990); Lorne Ingle, Meech Lake Reconsidered (Hull: Voyageur Publishing, 1989); and Andrew Cohen, A Deal Undone: The Making and Breaking of the Meech Lake Accord (Vancouver: Douglas & McIntyre, 1990); among others.
[2] For further information on the ‘Oka Crisis’ see, for example, Geoffrey York and Loreen Pindera, People of the Pines: The Warriors and Legacy of Oka (Toronto: Litle Brown & Company, 1992); House of Commons, Fifth Report of the Sanding Committee on Aboriginal Affairs, The Summer of 1990 (May 1991).
[3] Citizen’s Forum on Canada’s Future, Report to the People and Government of Canada (Ottawa: Supply and Services, 1991).
[4] Canada, Special Joint Committee of the Senate and House of Commons, The Process for Amending the Constitution of Canada, (June 20, 1991).
[5] Canada, Special Joint Committee of the Senate and House of Commons, Report of the Special Joint Committee on a Renewed Canada, (February 28, 1992).
[6] Canada, Shaping Canada’s Future Together (Ottawa: Supply and Services Canada, 1991). This proposal was accompanied by a number of research and background papers on a variety of related topics including one entitled, Aboriginal Peoples, Self-Government, and Constitutional Reform (Ottawa: Supply and Services Canada, 1991).
[7] See, for example, Report of the Manitoba Constitutional Task Force (October 28, 1991); Report of the New Brunswick Commission on Canadian Federalism (January 1992); Final Report of the Select Committee on Ontario in Confederation (February 5, 1992); and Alberta in a New Canada: Visions of Unity — Report of the Alberta Select Committee on Constitutional Reform (March 1992).
[8] Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples, 5 vols (Ottawa: Canada Communication Group, 1996).
[9] Canada, Renewal of Canada Conferences — Compendium of Reports (Ottawa: Privy Council Office, 1992).
[10] For further information on the contents of the proposed amendments and the referendum campaign see, Kenneth McRoberts and Patrick Monahan, eds., The Charlottetown Accord, the Referendum and the Future of Canada (Toronto: University of Toronto Press, 1993).
[11] SQ 1991, c 34, as later amended by An Act to amend the Act respecting the process for determining the political and constitutional future of Quebec, SQ 1992, c, 47 to enable the Government of Québec to hold a referendum on the Charlottetown Accord.
[12] National Assembly, Draft Report of the Committee to Examine Matters Relating to the Accession of Quebec to Sovereignty (September 16, 1992).
[13] Ibid, pp 27–8.
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