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by Daniel Lavery and Brad Morse
On July 11, 1990, a four month old peaceful blockade of a minor country road in Oka, Quebec, by several dozen men, women and children of the Mohawk Nation erupted into a national crisis with consequences well beyond the woodlands of Kanesatake.
Attempts to remove the blockade by hundreds of police officers from the Surete du Quebec (or SQ), the provincial police force, were resisted by members of the Mohawk Warrior Society. The confrontation caused a wave of aboriginal solidarity Canada wide.
Before it was over 77 days later, an armed impasse had developed with some 30 Warriors pitted against a reported 3000 members of the Canadian Armed Forces and over 1500 provincial police. All was vividly played out under the watchful eye of the media, bringing the siege into the living rooms of the nation. It compelled Canada to re-evaluate its relationship with aboriginal peoples.
At issue was 20 hectares of woodland in a country of nearly 10 million square kilometres. The Mohawks claimed the site as a burial ground, a sacred pine grove and the sole remaining `common land' lot of the original settlement; others insisted it should become the final nine holes of the Oka Golf Club.
For years aboriginal leaders have warned of a growing impatience, of possible conflict. Had Canada a warning? Over 300 years of it. Are there lessons for Australia? Absolutely! The story starts much earlier than July, 1990.
Hundreds of years before the arrival of Columbus in 1492, five fiercely independent nations, including the Mohawks, united to form the Iroquois Confederacy, with the Tuscarora joining later. At the heart of the Confederacy is a system of government based on family and community consensus that pre-dated European democracies by centuries. An unwritten constitution, called the Kaianerekowa, Great Law of Peace, governed relations between individuals, families and communities. To this day the Confederacy maintains that it never surrendered its sovereignty to any foreign power. The relationship to the British settlers can be traced, according to the Confederacy, to the Gus-Wen-Qah, the Two-Row Wampum Belt of 1664. This and other ancient treaty belts symbolized the formally agreed to coexistence between the Six Nations Confederacy and the European newcomers.
Their sovereignty claims have since gone unheeded. In 1923 the Confederacy petitioned the League of Nations to prevent destruction of their government and their society. That and a later petition to the United Nations were in vain. They have consistently opposed the federal Indian Act preference for an elected band council. Rather, their "Longhouse" governments have remained in place in many of their communities despite the use of the Royal Canadian Mounted Police (RCMP) to forcibly evict the Confederacy council on one occasion. Elected councils have been imposed but this has created internal conflict and dissension as the traditional system also retains many supporters.
The land at Kanesatake / Oka has been the subject of dispute since the early days of French colonization. To the Mohawks, it is part of the traditional territory they have occupied since before the Europeans came. Canadian Governments assert that the Mohawks only moved northward from what is now New York and Vermont in the U.S. after France had claimed dominion. In 1718, King Louis XV of France confirmed an earlier large land grant to the Order of St. Sulpice at Oka, on the shore of the Lake of Two Mountains, to establish an Indian mission so as to encourage as many Mohawks as possible to move from the island of Montreal. This was partially successful as some did move but most remained in the vicinity by creating the Kahnawake settlement across the river from Montreal.
The French were ultimately defeated in North America by the British in 1760, with their Mohawk allies assisting, in the Seven Years War. France then ceded almost all of her remaining colonies in the New World to Great Britain in the Treaty of Paris in 1763. Later that same year George III of England established a new colonial government for the ceded region in a Royal Proclamation and in the same instrument recognised the land rights of the "Indian Nations".
In 1841, the Parliament of Lower Canada (Quebec) passed an Act in favour of the Sulpicians, so that "all such doubts and controversies" about land ownership "should be removed and terminated." Over the years as the Sulpicians sold the land, in small parcels, to private interests, the Mohawks continued to protest their ownership. A Court challenge was mounted which eventually went to the Privy Council in London in 1912.[1] The Mohawks were denied title to the land on the grounds that, even if their Aboriginal title had not been extinguished by the land grant of the French King, the colonial legislation was sufficient to determine the matter.
With the advent of new federal policies of the 1970's, claims seeking a reserve at Oka and recognition of the entire traditional territory were filed with the Office of Native Claims. Both were rejected. The reasons were founded on the colonial statute, the Privy Council decision and the argument that southern Quebec was truly the homeland of the Algonquin Indians.
In early 1989, the Municipality of Oka and the Oka Golf Club Inc. announced plans to expand the golf course. The subsequent protest forced the parties into negotiations, but little progress was achieved.
On March 11, protesters barricaded access to the property. The town then successfully sought an injunction from the Quebec Superior Court on April 26, ordering the Mohawks to remove the barricades. This and a further injunction were ineffective, and in a misguided show of strength the Mayor of Oka, who was a part owner of the golf course, called on the SO to remove the protesters.
On the morning of July 11, a raid on the Kanesatake blockade by police officers was bungled, and in the resulting melee an SQ officer was killed. The Mohawks then barricaded all entries to the nearby Kanesatake reserve, with Mohawk sympathizers at Kahnawake blocking Mercier Bridge, a busy commuter access to Montreal. An armed and unsettling impasse developed, particularly so as the SQ have a poor reputation among the aboriginal population.
Federal Indian Affairs Minister Siddon maintained that the Federal Government was not involved as the administration of justice was a provincial responsibility. The Deputy Minister of the Department of Indian Affairs and Northern Development called the protest an "armed insurrection" by a "criminal organization".
Quebec Premier Robert Bourassa joined the chorus of federal officials attempting to paint the issue as a simple question of law and order. Premier Bourassa stated that the protesters were simply criminals. No genuine effort was made to address the issue that was so obviously at the heart of the protest.
On August 8, Premier Bourassa invoked the National Defence Act and called on Prime Minister Mulroney to send in the Canadian Armed Forces. Within days over 3000 soldiers were deployed. Federal Parliament was in Summer recess and despite cries for a recall, Mulroney refused to have Parliament sit sooner than planned to debate the crisis.
The Mohawks agreed to dismantle their blockade of the Mercier Bridge in the belief that meaningful negotiations would ensue. This did not occur and the Armed Forces moved on the barricades at Oka on September 1. They cornered the remaining Mohawks in a detoxification centre and the impasse continued. There were unfortunate incidents from both sides. The young Mohawks had to be disciplined by their clan mothers for needlessly taunting the troops, while away from the television cameras, a sleeping Mohawk was bashed by military personnel. Communications were cut to one telephone line to isolate the Warriors, their supporters and members of the media, who remained within' the barbed wire perimeter of the centre.
On September 25, Prime Minister Mulroney announced an agenda to address the concerns of aboriginal Canadians. These included increased attention to land claims, improvement of the economic and social conditions on reserves, developing a new relationship between aboriginal peoples and governments, and initiating legislative changes to the Indian Act.
On the land claims front he promised three parallel initiatives:
With respect to improving reserve conditions, Mulroney said that the Government is prepared to work jointly with Indian leadership on a range of improvements: including water and sewerage facilities. He also spoke of fundamental changes to the Indian Act.
"The Indian Act is largely unchanged since the Victorian age. It fosters Indian dependency on the state, frustrates Indian self-sufficiency and undermines Indian self-respect. It diminishes Indians and non-Indians alike. In the new year, building on work that is going on now with Indian leadership, we will bring in the first of many changes to the Indian Act. Consultation, and respect for the fiduciary responsibilities of the Crown toward aboriginal peoples, will be built into the process from the start. But we intend to go far beyond the status quo."[2]
He also addressed the question of aboriginal self-government and sovereignty. He suggested, without the necessary detail, that aboriginal self-government could be accommodated within the Canadian constitution so that aboriginal people could control economic and community development, along with their social and education systems.
The day after the PM's speech the Warriors of Kanesatake walked out of the detoxification centre. They were taken into custody by the Armed Forces and later charged with over 100 offences, including obstruction of justice and rioting.
It is clear that the events of Oka have forced the issue of aboriginal affairs to near the top of the political agenda. At the core of the dispute lay a small parcel of land. It was essentially a modest land claim which, because of the heavy-handed government responses, became a symbolic vignette for aboriginal claims for sovereignty and self-government across the country.
There is no doubt that the Mohawks' actions succeeded in producing some important results beyond an increased awareness of aboriginal people in the national mosaic. The siege demonstrated political power to a people long powerless in the dominant society. In its aftermath there appears to be a resoluteness on the part of aboriginal leaders. George Erasmus, national chief of the Assembly of First Nations, said that this was not the last battle, rather it could be the `first stand'. Within a week of the end of the siege Ben Michel, of the Innu of Labrador, stated that the Innu would not hesitate to attack the economic base of Canada if governments refused to deal seriously with the question of aboriginal sovereignty.
Confederacy spokesperson, Bob Antone said at the end of the crisis that the Oka siege had been a `summer school' for Canadians. Indeed the confrontation between the Mohawks and the Armed Forces shattered a certain complacency that Euro-Canadians harbour over Aboriginal issues.
Can Australia also learn a lesson from this Canadian summer? It would be remiss if the people and, in particular, the governments of Australia fail to focus clearly on what occurred.
At both the federal and provincial level this confrontation paralysed government. Historian Henri Dorian has calculated that the majority of the land in Quebec, a vast province, was never signed away in treaties: and with growing recognition accorded to aboriginal title by Quebec's jurisprudence, this is a potential political tinderbox. There are more than 50,000 aboriginal people in over 50 communities within the province and the mood is not placatory on either side. The other provinces and Territories are also paying close attention. Recently the government of British Columbia reversed an 110-year-old policy of not recognizing aboriginal land claims within the province.
For the Federal Government it meant something different. The stand off drew international attention to the plight of the aboriginal peoples in Canada. It cost the Federal Government the high moral ground it so frequently adopts with other nations on the treatment of minorities. Increasingly, it seems that with the raised profile of indigenous peoples in the international arena national governments, such as Australia and Canada whose records are not without taint, are being slapped in the face with their indifference to aboriginal peoples.
In Canada, as in Australia, disease rates, infant mortality, suicides and rates of violence or accidental deaths among the Inuit, the Metis and the Indians, are all much higher than the national average, as is the incidence of imprisonment.
The futility of Oka must be obvious to the Government which spent over $100 million on the crisis.
But there is some small joy. While governments are resisting the recognition of many of these land and resource rights, recent Supreme Court of Canada (SCC) decisions have tended to support the position that the First Nations still have rights to land and resources based on long occupancy and use. In the early 1970's, while Australian jurisprudence was denying aboriginal title in the Gove Land Rights case[3], the Supreme Court of Canada in Calder[4] expressly recognized the concept and opened up the land claims process to Canadian aboriginal groups. Subsequent Canadian decisions have said that if the Federal Government is to extinguish such aboriginal rights it must proceed explicitly and may then be subject to claims for compensation.
More recently the SCC elucidated the concept of a fiduciary or trust relationship existing between the Federal Government and aboriginal peoples with respect to land.[5] It was referred to by the PM in the quote above and looms large in the consciousness of his Government as two decisions from the SCC came down earlier this year, those of Sparrow[6] (see case note p12) and Sioui,[7] which confirmed and expanded that relationship in addition to giving greater legal effect to aboriginal and treaty rights respectively. Yet notwithstanding these judgements, the languid bureaucratic machinery handling the claims within the Departments of Justice and Indian Affairs have filibustered and hedged to the extent that, prior to Oka, frustration at the inaction of the land claims processes was tangible. Other bodies too, are calling for adequate governmental responses including the Canadian Human Rights Commission (CHRC) and the Indian Commissioner of Ontario. On November 21, a report of the CHRC called for a complete scrapping of the Indian Act and the Department of Indian Affairs, stating both to be relics of the past. The Commission called for a national inquiry into aboriginal concerns, an agency divorced from the bureaucracy to settle land claims, and a major overhaul of land claims policies. Minister Siddon, in the middle of Fall with the Summer seemingly forgotten, called the report "simplistic rhetoric".
The events of this Indian Summer of 1990 have demonstrated the vital need to redefine the relationship between aboriginal peoples and the Governments of Canada. A recent opinion poll, taken in the last week of the Oka crisis, indicated that over 70 percent of Canadians support aboriginal self-determination and their rights to land.
Additionally the survey confirmed a growing sentiment that the aboriginal people of Canada should be recognised as a Founding Peoples. Thus, it remains with government to find and exercise the political will necessary to formally redefine the relationship of Canada to the original inhabitants of the land.
[1] Corinthe v Seminary of St. Sulpice, [1912] UKLawRpAC 47; [1912] A.C 872 (P.C).
[2] Notes for an Address to the House of Commons, Sept. 25 1990, p.6.
[3] Milirrpum v Nabalco Ply Ltd and Commonwealth (1971),17 FLR 141
[4] Calder v Attorney General of British Columbia (1973),107 DLR (3rd) 59.
[5] Guerin v R., [1984] 6 W.W.R 481.
[6] Sparrow v The Queen., [1990] 4 W.W.R. 335.
[7] R v Sioui, (1990) 70 D.L.R. (4th) 427.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1991/4.html