Morse, Brad --- "Canadian Developments" [1985] AboriginalLawB 5; (1985) 1(12) Aboriginal Law Bulletin 8

• Canadian Developments
• Land Rights
• Self-Government
• Constitutional Initiatives
• Future Directions

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Canadian Developments

by Brad Morse

There has been an incredible amount of activity in Canada, as in Australia, on a large number of fronts since my last report on the Canadian scene. (AboriginalLB No. 7). Although much of it has yet to bear fruit, and it occasionally generates a feeling that there is no fire to go with all the smoke, there have been some significant developments worthy of note.

Land Rights

The massive land claim of the Inuit (or Eskimos, as they were once called in Canada) of the MacKenzie Delta area of the Western Arctic in northern Canada (in the Northwest Territories) has, at long last, been finalized. The Inuvialuit (as this group of Inuit describe themselves) had negotiated an Agreement-in-Principle in 1979, but it took until December of 1983 to achieve a Final Agreement which was subsequently ratified this year by the Federal Cabinet on the one hand and the Inuvialuit through community referenda on the other. It has now been enacted into law as a schedule to a Bill that was passed in the dying days of the last Parliament and proclaimed in July.

The 2500 people affected by the claim had created their own political organization (The Committee of Original People's Entitlement or COPE) in the early 1970's to pursue a land claim based on their assertion of aboriginal title to their traditional lands. One of the major problems they faced was defining the precise boundaries to their lands as there was a long history of overlapping use of some lands with different Indian Nations to the south and west of them. This was finally resolved after extensive negotiations with the Indian people involved.

The COPE settlement, as it is known, involves the extinguishment of aboriginal title throughout all of the traditional lands of the Inuvialuit (some 435,000 square kms.) in return for the following:

1) fee simple title to 11,000 sq. kms. including surface and subsurface rights;

2) fee simple title to a further 78,000 sq. kms. with surface rights and subsurface ownership of sand and gravel only;

3) a guarantee that a 2,000 sq. kms tract of land will be held as a protected, non-development area;

4) $45 million in 1977 dollars (or plus inflation) paid over a period of years tax-free;

5) $10 million for an economic enhancement fund;

6) $7.5 million for a social development fund;

7) defined preferential or exclusive rights to harvest fish and game throughout the region including guaranteed participation in wildlife management decisions;

8) ownership of certain waters;

9) participation in future land use planning and environmental screening decisions;

10) compensation rights for any losses to Inuvialuit wildlife harvesters in the future;

11) a guarantee that certain other lands will be dedicated as parks or under special conservation regimes; and

12) undeveloped land held by the Inuvialuit through corporations and trusts will remain tax-free in perpetuity.

The signatories agree, however, to abide by all other laws of general application and to honour all outstanding interests now or that may be given for subsurface uses in the future subject to a right to negotiate "participation agreements" on all aspects of land use including compensation. The agreement does not really cover self-government since Aboriginal People constitute a majority of the population in the Northwest Territories and because another process is underway to divide that region into an Inuit Territory (Nunavut) and an Indian/ Metis Territory (Nunavut).

An Agreement-in-Principle was negotiated with the Council of Yukon Indians (CYI), the Yukon Territory Government and the Government of Canada in January of 1984. This Agreement promised $190 million, in 1984 dollars, 20,000 sq. kms. of land in free simple with all surface and subsurface rights; guarantees of 50% of all game and retention of current Indian fish catch levels; and guarantees of a major role in boards dealing with future decisions regarding land use planning, wildlife management, environmental assessment, education, health care, and justice. The CYI have recently scrapped this Agreement as it violates their demands for self-government and continued existence for aboriginal treaty rights.

Land claims negotiations are continuing on a number of other major aboriginal title (or "comprehensive") claims while a series of small (or "specific") claims have been settled in instances of fraud, illegal transfers of Indian reserve lands, or maladministration of reserve lands. Approximately one dozen specific claims have been settled in the last two years involving payments of about $25 million and the return of 1000's of acres of land to reserve status. The federal government has also promised to review its entire policy on land claims to make it quicker and fairer. Major land claims agreements became entrenched in the new Constitution after they were finalised due to a recent constitutional amendment.

Self-Government

The Cree-Naskapi (of Quebec) Act was also passed in June of 1984 to eliminate the application of the Indian Act to the Cree and Naskapi Indians who had signed comprehensive land claims in the 1970's. The Act transfers a number of federal powers and responsibility for programmes to the Crees and Naskapis while reducing the Ministers' power to control their governments.

A Parliamentary Committee completed an exhaustive inquiry into Indian Self-Government in November of 1983 and issued an all-party report calling for a total transformation in the Crown-Indian relationship. The Report on Indian Self-Government strongly recommended that Indian bands be recognized as nations within Canada with almost total control over all aspects of government and daily life within their reserve borders along with sufficient funds from Parliamant to meet all their needs. The Report specifically suggested that Indian Nations gain full legal authority over child welfare, justice, health, education, environment, housing, economic development, taxation, land and resource use, family relations, social and cultural development, and all other matters affecting Indian people on reserves. The Report furhter proposed that this should be done by way of constitutional entrenchment of Indian Self-Government in conjunction with federal enabling legislation.

The Government of Canada responded to the Report in March of 1984 with a relatively weak reply. The Prime Minister subsequently made a surprise proposal several days later at to constitutionally mandated First Ministers Conference on Aboriginal Issues to entrench a vague principle of aboriginal self-governing institutions in s.35 of the Constitution of Canada. Only 3 of the 10 provinces agreed while others confessed to lack of knowledge about, and understanding of, the proposal so as to take a position.

The Indian Self-Government Bill was introduced in Parliament for discussion purposes late in the last session of Parliament (June 1984). This Bill has been widely criticized by Indian groups and MPs as falling far short of the Parliamentary Comittee's recommendations. Although it expands Indian band government powers in comparision to the Indian Act, it does so in very limited ways while expanding Cabinet's ability to override all Indian decisions. A more promising Bill is expected early in the life of the next session of Parliament.

Constitutional Initiatives

The Constitution Act, 1982 contained a number of provisions directlvaffectinethe Aboriginal Peoples of Canada. Section 25 exempted their aboriginal, treaty and other rights from infringement in any way by the Charter of Rights and Freedoms contained in the new Constitution. Section 37 required a First Ministers' Conference of Aboriginal representatives, provincial Premiers, the Prime Minister and leaders of the 2 Territories to discuss and define aboriginal and treaty rights. The Constitition also contained a critical provision, which was given paramountcy overall conflicting federal and provincial law by virtue of s.52 which renders the Constitution supreme. This substantive provision, s.35, originally read as follows:

1. The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

2. In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada.

The First Ministers' Conference (FMC) required by s.37 took place in March of 1983 and led to an agreement by the Aboriginal representatives and all First Ministers (other than Quebec which does not recognize the new Constitution) to amend the Constitution by adding the following:

3. For greater certainty, in sub-section (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so required.

4. Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

These amendments have since successfully completed the amending process created by the new Constitition and were proclaimed in force in June of 1984. The first amendments to the Canadian Constitution further claimed a minor change to s.25 (b) to protect future land claims agreements from possible attack for violating the Charter and requirements to hold additional FMCs in March of 1984, 1985 and 1987.

The 1984 FMC was an example of sound and fury with little action. As previously mentioned, then Prime Minister Trudeau proposed the entrenchment of a principle of aboriginal self-governing institutions with s.35. This was discussed in a relatively circular fashion with most provincial Premiers pleading for further study while Aboriginal speakers could only give lukewarm support in light of Trudeau's admission that the principle would have little meaning in law. Proposals to guarantee sexual equality further, to guarantee equality amongst Aboriginal peoples, and to affirm the protection of Aboriginal cultures, languages and heritages also did not obtain majority support. As a result, no agreement for change as such was reached at this meeting.

Trudeau did, however, promise unilaterally to move to (a) amend the Indian Act so as to delete all sexually discriminatory clauses, (b) introduce legislation expanding Indian self-government on reserves, (c) review all federal social service programmes for Aboriginal Peoples and (d) reconsider the federal position that regards non-status Indians and the Metis as not falling within federal authority. Action has occurred since that time on only the first three fronts. Legislation was introduced to amend the Indian Act but an attempt to bulldoze it through over the opposition of many Indian groups, Metis organizations and MPs for being inadequate failed in the Senate on the last day of Parliament. The 2nd promise was met in part through the tabling of the Indian Self-Government Bill while modest efforts are underway to review all federal social service programmes that serve or affect Indian, Metis and Inuit peoples.

Future Directions

Preparations have already begun for the 1985 FMC to be held next March. It is likely to concentrate on self-government and entrenchment of aboriginal title, along with a concerted effort by Aboriginal representatives to have the word "existing" removed from s.35(1). Initiatives are also being made to answer the provincial concerns regarding what self-government will mean. Queen's University has the support of all parties to conduct a number of research studies while the national Aboriginal organisations are attempting to elaborate their goals more clearly to the provincial governments.

Federal legislation will also clearly be enacted shortly to amend the Indian Act to eliminate sexual discrimination against women and their children under that statute before the Charter is invoked to strike down its discriminatory provisions. At least 67,000 Indian peoples are expected to regain their position as registered or status Indians once this retroactive statute is passed so as to benefit from special federal programmes, treaty rights, the right to belong to the Indian band from which the individual is descended and to reside on the band's reserve. It is not known at present if all people who define themselves as Indians but are not so legally recognized will be covered by the amendments. Federal legislation is further likely to implement the Parliamentary Committee recommendations on Indian self-government in the future.

Finally, only slow progress is foreseeable on the land claims front until the federal policy is redesigned including its requirement that aboriginal title must be extinguished as part of any settlement. A review of the policy has been promised by the new government.

Guarded optimism is thus the order of the day as progress on several fronts seems inevitable yet far from rapid.