Federal-Provincial Sub-Committee on the Constitution and Canada’s Native People, Position of the National Indian Brotherhood concerning The Revision of the Canadian Constitution.

Roan Van Helden and PrimaryDocuments.ca

46 years ago

Document Information

Date: 1980-08-26
By: Del Riley, National Indian Brotherhood, Federal-Provincial Sub-Committee on the Constitution.
Citation: Federal-Provincial Sub-Committee on the Constitution and Canada’s Native People, Position of the National Indian Brotherhood concerning The Revision of the Canadian Constitution. Doc 830-85/005 (Ottawa: 26 August 1980)

Other formats: Click here to view the original document (PDF).

DOCUMENT: 830-85/005

CONFIDENTIAL

Position of the National Indian Brotherhood concerning The Revision of the Canadian Constitution

Introduction

Special legislative and constitutional provisions for Indian people have been a continuing part of Canadian life for over 250 years. In the words of the Berger Report, special status has been “an integral part of our constitutional tradition.”

Special constitutional provisions regarding Indian peoples are to be found in:

1. The Treaty of Utrecht (1713)
2. The Articles of Capitulation of Montreal (1760)
3. The Royal Proclamation of 1763
4. The Treaty of Ghent (1815)
5. The British North America Act (1867)
6. The Manitoba Act (1870)
7. The Order in Council of Her Majesty admitting Rupert’s Land and the North-Western Territory into Union (1871)
8. The Terms of Union of British Columbia (1871)
9. The Quebec and Ontario Boundary Extension Acts (1912)
10. The Natural Resources Transfer Agreements (1930)

In addition, the treaties between Indian nations and the Crown should properly be considered as constitutional documents.

Special constitutional provisions were made for the purpose of recognizing Indian rights and protecting Indian interests. Yet governments have constantly denied Indian rights, at times even using the constitutional provisions as reasons to exclude Indians from the mainstream of Canadian life.

We approach the constitutional discussions that are currently under way with the intention of establishing some of the basic relationships of Indian people and Indian governments with the rest of Canadian society. We have never in the past been treated as political equals in constitutional discussions, but we know that a new constitutional order, to succeed, must be based on ideas of equality and mutual respect between our peoples and the other communities within Canada.

That is what we seek. We ask no more and will accept no less.

Treaty and Aboriginal Rights

Canadian society can never be truly just until it recognizes that Europeans found a continent inhabited by hundreds of Indian nations, each with its own culture and its own system of law and property. It must be realized that the issues of treaty and aboriginal rights are in reality the issue of those national rights enjoyed by peoples already established on this continent. Not only do these issues involve rights to land, but also to the right of self-determination based on the original sovereignty of each of the Indian nations.

The issues of treaty and aboriginal rights have raised a number of constitutional problems. Lying behind many of the problems is the fact that jurisdiction over Indians, Indian lands and Indian claims lies with the federal government, yet jurisdiction over lands, natural resources and hunting and trapping, in general, lies with the provincial governments. Indian have constantly been told that the resolution of major issues requires agreement between the federal and provincial governments. In other words, the complexity of the Canadian federal system has been used against Indians.

The following examples show that shared jurisdiction has hurt Indian people, defeating the purpose of special constitutional provisions. They further show that Canadian law has failed to recognize adequately either aboriginal rights or the character of Indian treaties.

(a) Aboriginal rights have not been adequately recognized in Canadian law:

Aboriginal rights stem from the national rights enjoyed by the Indian tribes which were established on this continent prior to European colonization. They do not come from the Royal Proclamation of 1763. In fact, the Proclamation itself does not purport to create or establish any rights, but rather describes the treaty mechanism which would be used to deal with lands which had not been “… ceded to or purchased by Us …”.

The Judicial Committee of the Privy Council misread and misinterpreted the Proclamation in 1888, in the St. Catherine’s Milling case, when it attributed Indian rights to the Proclamation. Mr. Justice Hall was wrong in the Supreme Court of Canada decision in the Calder case in looking to English law for recognition of aboriginal rights. Our aboriginal rights were not granted by a proclamation of the British monarchy, but come from our own nationhood and the sovereignty inherent in that nationhood. As late as 1978, we saw that old ideas are slow to die, when the government of Prime Minister Trudeau suggested, in Bill C-60, that Indian rights come from the Royal Proclamation.

Because Canadian courts have failed to understand the origins of Indian aboriginal rights, it is logical that a new constitution correctly describe and establish these rights. This suggestion should make it quite clear to all that Indian people seek a confirmation of their rights within any new Canadian constitutional order.

(b) Federal responsibility to recognize Indian aboriginal rights should not be frustrated by provincial actions:

In 1973, the federal government stated that it recognized a need to negotiate settlements of aboriginal title claims to land

in certain parts of the country. It stated that in Quebec and British Columbia, settlements of Indian claims

… can only be satisfactorily reached if the Provinces concerned participate along with the Government of Canada in the negotiation and settlement.

Both Quebec and British Columbia had histories of hostility to Indian aspirations, making the quoted federal statement suspect from the beginning. Quebec began negotiations later that year, but only because the Quebec Superior Court had ordered a halt to the James Bay Project on the basis of unsurrendered Indian and Inuit rights. It took the government of British Columbia a year before it stated that it would have nothing to do with Indian aboriginal title claims. That is still the position of British Columbia in 1980. For the past seven years the government of Canada has been saying that it is unable to resolve aboriginal title claims in British Columbia because of the attitude of the provincial government. A similar problem exists with Indian claims in Labrador.

These problems make the concept that jurisdiction to settle aboriginal title claims lies exclusively with the federal government a farce. If Canadians feel that these claims should be resolved justly, it is necessary for the constitution to grant very clearly to the federal government those powers necessary to ensure that negotiations and a settlement can occur.

The power to negotiate treaties is a political power and was one of the national rights of the Indian tribes of Canada. To Indian people, the treaty process was one whereby a permanent alliance was forged between the Indian nations and the European colonial population. In fact, the records of the government negotiators show something of the political character of the arrangements involved. For example, the negotiators of Treaty #8 in 1899 reported:

“We assured them that the treaty would not lead to any forced interference with their mode of life, that it did not open the way to the imposition of any tax, and that there was no fear of enforced military service.”

Yet, the courts have described the Indian treaties as contracts. In an amazing judgement concerning the Robinson annuities the Judicial Committee of the Privy Council described the treaties as resembling “ordinary mercantile contracts”. By describing the treaties as contracts, the courts rejected the stronger notion that the treaties were the equivalent of legislation because they were authorized by the Imperial parliament in the Royal Proclamation of 1763. However, even that interpretation of the treaties

would have been wrong, for it, like the contract idea, is based entirely in English law. A treaty, being an agreement between two political groups, must be valid in the law of both groups. In fact, the treaties were international law documents, even if they did establish what Europeans termed a relation of suzerainty between the colonial power and the Indian nations.

Again, because of the serious errors made by the courts in the past in interpreting the treaties, any new constitution must not only describe correctly the legal status of the Indian treaties in the Canadian legal order, but also entrench the terms of these treaties such that they cannot be abrogated.

(d)Canadian law has not dealt correctly with the interpretation of Indian treaties:

The records of government officials, even considered separately from Indian oral traditions, indicate that the written texts of the treaties are inadequate records of the agreements which were actually reached. Canadian law has done the indefensible in interpreting the oral agreements of people who did not understand English exclusively by the English words of the treaty document. Mr. Justice Morrow recognized in the Paulette case that the Indian understanding of Treaties #8 and #11 was clearly ascertainable, and was seriously at variance with the terms of the written documents. Both courts and writers have argued that the terms of the treaties should be interpreted liberally in favour of the Indians, but this is inadequate. It is necessary, if the basic political principles of the treaties are to be understood, to start with the actual agreement reached, using the written terms of the treaties as simply one piece of evidence in this process.

The courts have so seriously misunderstood the treaties, that the constitution should speak both about the legal nature of the treaties and how they are to be interpreted.

(e) Treaty entitlements:

The problems of the status of Indian treaties and the proper interpretation of those agreements have led to continuing problems concerning Indian rights under the treaties. For example, government officials promised substantial aid to develop new economic bases for Indian communities, but since these promises, in the treaties, were put in terms of plows, ammunition and twine, the government has never accepted a treaty obligation in relation to economic development. Also, the government officials promised the Indians education, but the promises were put in terms of a teacher or a school on the reserve. As a consequence, the government has never accepted a general treaty obligation to provide Indian education. The same is true with health services.

Even the most concrete and easily interpreted of the treaty

promises – the promise for reserves based on a formula of a certain number of acres per person – has faced continuing problems. For example, negotiations have been going on for ten years to settle the reserve entitlement under treaty for Fort Chipewyan, in northern Alberta, and for over ten years to settle the reserve entitlement at Big Trout Lake, in northern Ontario. The province of Saskatchewan has progressed farther than any other government in recognizing this problem and negotiating the details of compliance with the treaty promises directly with the Indian themselves. Alberta refuses to discuss the question except when a court orders the province to comply with its constitutional obligations under the Natural Resources Transfer Agreements. There have also been continuing problems in Manitoba, and in British Columbia, the “cut-off” lands issue, which is somewhat similar, has been the subject of negotiation for the past six years, although the claim has been asserted by the Indians involved since 1938. At present, these Indians have begun a court action against both the federal and provincial governments in this regard.

The Natural Resources Transfer Agreements of 1930 made provisions to ensure federal-provincial co-operation in resolving treaty land entitlements. The idea, then, of constitutional provisions to deal with this kind of issue is certainly not novel. In fact, history has indicated that such provisions are necessary.

Indian Government

Indian nations always had, and continue to have, the right to self-government. The full sovereignty they enjoyed prior to European colonization has only been modified, and not ended, by the establishment of non-Indian governments in Canada. The British North America Act of 1867 created a federal structure and defined the powers of the federal and provincial governments. In a negative way it recognized Indian communities as separate jurisdictional areas by removing them from the regular division of powers between the federal and provincial governments. Federal jurisdiction could have meant either domination by the federal government over Indians or the recognition by Ottawa of Indian bands as self-governing communities. The government chose the former interpretation, and any new constitution must now entrench the latter. There must be no ambiguity in the new constitution. Indian governments, as a distinct order of government, must be recognized and their exclusive powers specified.

Indian people see such constitutionally guaranteed jurisdictional areas complementing other treaty and aboriginal rights and including such areas as citizenship, family law, education, the administration of justice, resource rights and taxation.

Citizenship

Although there are over a million people in Canada who consider

themselves to be, to a greater or lesser degree, of Indian ancestry, only about a quarter of this number are eligible to be recognized officially by the Canadian government as Indians. This is because only those people who can bring themselves within the provisions of section 11 of the Indian Act are recognized by the government to be Indians, with all the rights and disabilities that such recognition entails. It is the contention of Indian people that such a determination should be made by the bands themselves and not by the federal government. Indians know who Indians are.

Present inequalities in the membership sections of the Indian Act defining persons who are not eligible to be registered as Indians have led to dissention within bands and the removal from the band lists of people who would otherwise be Indian. For example, section 12(1)(a)(iv) of the Act says that a child who is registered as an Indian and whose mother and paternal grandmother gained their Indian status by marrying an Indian man, will cease to be registered as an Indian upon reaching the age of twenty-one. Further, section 12(1)(b) says that, although a non-Indian woman gains Indian status by marrying an Indian man, an Indian woman who marries a non-Indian man loses her status and ceases to be an Indian.

The question of band membership should be considered, constitutionally, as a question of citizenship. Each band should have the jurisdiction under the constitution to determine who may and may not be a member of that band.

Family Law

The application of provincial child welfare laws to Indian communities is a continuing problem and one acknowledged by all observers. The integrity of the Indian communities, as distinct cultural and political groups, is violated by their lack of control over Indian child welfare. The existence of federal jurisdiction over Indian education and over the guardianship of the property of Indian infants should make it clear that the federal government has legislative authority in relation to Indian child welfare, and that this authority is assignable to Indian governments. The federal government seems to deny this possibility by consistently orienting its policies to facilitate provincial jurisdiction in this area. If the federal government doubts that it has jurisdiction over Indian child welfare, then it should support a constitutional provision which would make it clear that Indian governments could take over the legislative, administrative and judicial control of Indian child welfare.

There has been a long standing problem as well concerning the legal recognition of Indian customary marriages. Since 1951, the Department of Indian Affairs has refused to recognize Indian customary marriages for the purposes of administering the member-

ship sections of the Indian Act. This has led to an indefensible discrimination against Indian people on the basis of race and religion. The most sensible resolution of these issues would be to give Indian governments jurisdiction over marriage, divorce, custody, guardianship and adoption. In this way Indian custom marriages and other Indian customary family law would command the same respect as the family law provisions of the federal and provincial governments. Such powers would form part of the list of jurisdictional powers assigned to Indian governments in a new constitution.

Education

The basic right to educational services for Indians stems from the trust obligations of the federal government toward Indians and from treaty and aboriginal rights. The ill-defined trust relationship has never been judicially recognized as conferring on Indians legal rights which they could enforce against the government.

The source of the trust concept is to be found in such generally worded documents as the Royal Proclamation of 1763, which speaks of the Crown as the protector of Indians. The traditionally conservative and constructionist Canadian legal system has always refused to import any specific obligations into promises made to the Indian people, and the government has seen its relationship with Indians as simply a jurisdictional right on its part, with no concommitant mandatory obligations.

The enforcement of treaty rights to education has been hampered by the weak legal status of these rights in the face of conflicting legislation and by the refusal of the government to apply modern educational standards to promises made in the last century. The records of the treaty negotiators for the Crown show that general pledges were made to teach Indians “the cunning of the white man”. This broad commitment to provide education to Indians was generally expressed in the treaties by the use of symbolic committments to provide a school or a teacher on the reserve. The government has never admitted the symbolic nature of the language used in the treaties and has consistently interpreted its obligations as narrowly and literally as possible.

While denying any legal obligation to provide educational services to Indian people, the government has always acted as though it did in fact have some responsibility in this area. There is a long history of federal activity in the field of Indian education, but by refusing to admit any legal duty to provide to Indians educational services, the government rationalizes its right to decide unilaterally upon the extent of its obligations, the type of services it will provide and the educational goals of Indian children.

There now seems to be general agreement that Indian people should have maximum control over their own education. Yet, if the ultimate jurisdiction over Indian education remains with the federal government, Indian communities will have to rely ultimately upon the benevolence of the government for financial support and for legislative change. Their educational systems will continue to be subject to the political and bureaucratic scrutiny of the non-Indian population.

The only guarantee Indians have of gaining ultimate control over such a culturally important area as education would be a constitutional guarantee of the right of Indian people to have exclusive jurisdiction over Indian education.

Administration of Justice

Present arrangements concerning Indian policing do not permit bands to maintain officially recognized police forces in the same way as non-Indian towns and municipalities. As well, there seems to be an assumption of some provincial jurisdiction in relation to the administration of justice on reserves, both in relation to policing and prosecuting, which the federal government may not have power to assign or control. The present situation also leaves great uncertainty as to who has the authority to enforce band by-laws and who will do so.

Indian goals of self-determination require that authority be present to allow advanced bands to take over the administration of justice on their reserves. This would include policing and prosecuting, and could include as well authority in relation to detention, parole and pardons.

The present system provides merely for Indian justices of the peace, with very limited powers, under section 107 of the Indian Act. However, there is no reason why a separate system of Indian courts could not be established under the present section 101 of the British North America Act (1867). These courts could then handle the enforcement of band by-laws and federal laws such as the Criminal Code in relation to reserves and Indians.

Proposals for a special judicial structure for Indian communities have been greeted in the past with some skepticism as to whether the constitution would allow such a system. Any new constitution should clearly allow for both federal assumption of authority in this area from the provinces and Indian assumption of this authority from the federal government.

Resource Rights

The series of constitutional cases in the 1960’s and 1970’s involving Indian hunting and fishing rights have shown an inconsistent pattern in the recognition of these rights. Treaty and

aboriginal rights to hunt and fish have been overridden by the federal Migratory Birds Convention Act and Fisheries Act. As well, aboriginal rights to hunt and fish have been overridden by provincial laws of general application.

The Supreme Court of Canada has agreed that the Crown’s treaty promises have been broken and that the federal government has apparently not realized what it has been doing in this regard, but although the injustices have been plain and clear, they have not been remedied.

The logical answer is constitutional protection for Indian resource rights – a concept that is not novel. The Natural Resources Transfer Agreements of 1930 gave constitutional protection to certain Indian hunting and fishing rights in Alberta, Manitoba and Saskatchewan, while similar protection can be found in the Yukon Act and the Northwest Territories Act.

Indian resource rights include subsurface rights, riparian and foreshore rights and rights to offshore resources. Indian rights to manage resources should be exclusive over reserve lands and waters and shared over traditional lands and areas off reserves.

Resource revenue sharing is a logical and important concept which should be included in any new constitution if the entrenchment of equalization payments is to be considered.

Taxation

An exemption is granted, by section 125 of the British North America Act (1867), from taxation for the lands and property of the federal and provincial governments. Although this exemption has been extended to municipal level government lands by the provisions of the Income Tax Act, the Minister of National Revenue has refused to apply this exemption to lands owned by Indian bands.

Constitutional revisions must take into account the position of Indian governments in relation to federal and provincial governments and, accordingly, provide for the exemption of band lands and property from taxation.

Further, the exclusive jurisdiction to tax individual Indian people and non-Indian individuals and corporations who are on reserve lands must lie with Indian governments.

Customs and excise duties are based on the political significance of the international borders, particularly that border between the United States and Canada. For the Indians of North America, that border is an artificial and recent imposition. In recognition of this, an Indian exemption from regular immigration laws and from customs and duties was granted by Jay’s Treaty of 1794, between the United States and Great Britain. However, the

Canadian authorities have never recognized Jay’s Treaty and have refused to allow Indians these exemptions. Although the Supreme Court of Canada ruled in 1956 that Canada was in breach of the provisions of Jay’s Treaty, no remedial legislation has yet been passed to correct this problem.

In any new constitution, the Indian exemptions guaranteed in Jay’s Treaty must be placed above legislative abrogation and entrenched.

Rights and Freedoms

The Indians of Canada are subject to a different legal regime from other Canadians because of their special constitutional status, their treaties and aboriginal rights and the provisions of the Indian Act. This fact creates a difficult problem respecting current proposals to entrench Canada’s Bill of Rights in any new constitution.

While Indians constitute a distinct racial or national group within Canada, their unique legal status is seen not as any kind of racial discrimination, but rather as an essential protection of their cultural integrity. The entrenchment of the “equality before the law” provisions of the Bill of Rights in a new constitution could, therefore, threaten this situation by invalidating the Indian Act and other sources of Indian rights on the grounds that such special legislation violates the equality before the law principle of the Bill of Rights.

Until just a few decades ago, both basic substantive rights and protection against discrimination were matters left to the common law. There was therefore no constitutional difficulty with the idea of separate legal rights for Indians, since statutes such as the Indian Act clearly superceded and overruled the common law. Within the past twenty years, however, the federal government and several of the provincial governments have passed legislation attempting to codify the notion that there should be no discrimination on the basis of race or national origin in either the substance or application of federal or provincial laws. How such laws, especially the Canadian Bill of Rights, affect distinct Indian legal rights has been the subject of much concern to the Indian of Canada. There was considerable fear that the courts would use this Act to strike down or severely restrict the laws which pertain uniquely to Indians. Judicial interpretation of the Bill of Rights since 1960 has allayed these fears somewhat, but such interpretation has been based on the Bill’s status as an ordinary Act of the Parliament of Canada, and not on it being a constitutional document.

In the Drybones case, the Supreme Court of Canada declared a section of the Indian Act inoperative because it discriminated on the basis of race against an Indian. Although the discrimination

in question was simply social, the decision immediately raised the possibility that the whole idea of distinct laws for Indians, whatever their intent, would be interpreted as a violation of the Bill of Rights and, therefore, illegal. Subsequent cases, most notably Lavell and Bedard, have affirmed the paramountcy of the Indian Act over the Bill of Rights, and therefore the legal basis for legislated rights seems to be secure under the present law. However, any elevation of the Bill of Rights from its present status as an ordinary statute to a constitutional restriction on Parliament’s legislative capacity would certainly be a prospective threat to all laws applying uniquely to Indians.

In order to ensure the continuation of a distinct legal status for Indian people, the Bill of Rights will have to be clear and specific as to how it relates to laws respecting Indians and how it is to apply in Indian communities. The Indian concerns in this regard are clearly a matter to be considered within the wider constitutional debate on individual rights and freedoms in Canada.

The Senate

Canada has a strong tradition of accommodating its various regional, national, linguistic and religious interests through selected appointments to such non-elected government bodies as the Senate and Cabinet. This practice, enforced partly by law and partly by convention, is considered to be an antidote to the possible domination of the political process by any one group or region. The actual effectiveness of the tradition is a function of numerous factors, and varies with the personalities of the appointments, due to the partly informal nature of the practice. Only in one instance has this pattern been applied to Indian people. In the late 1950’s Prime Minister Diefenbaker, recognizing the absence of Indians in the institutions of the government, established a single “Indian seat” in the Senate. Otherwise the federal government has never recognized Indians as being a national group whose political voice must be protected through this system.

The concept of a reformed or revitalized Senate is one which is now being actively promoted at both the provincial and federal levels. Most of these proposals reflect the idea of direct provincial government participation in the federal process. The constitutional entrenchment of Indian government concepts would lead to a third order of government, whose relationship with the other two levels would have to be clearly defined. If a new Senate would create a direct relationship of participation or control between these two other levels, the question of how this affects their relationship to Indian governments must be settled through joint Indian-government consultations.

Supreme Court

Because of the complete exclusion of Indian representation from the executive and legislative branches of government, the judiciary has been unusually important in the protection of Indian constitutional rights. The lack of a formal political

voice with government has seriously hampered the ability of Indians to effect legal or political change. Their past inability to change the law has made the interpretation of existing laws the prime avenue for the defence and enhancement of Indian rights. Unfortunately, a conservative legal tradition, the doctrine of parliamentary supremacy, and a legal misinterpretation of historical relationship between Indians and Canada have all made the judiciary incapable of properly fulfilling the task.

Provincial governments have long alleged that the federal right to unilaterally appoint Supreme Court judges inevitably results in a pro-centralist court. This problem also exists for Indians who regularly find themselves before the courts in an adversary position with the federal government. Yet the problem is even more acute for Indians, as it is compounded by cultural differences between Indians and members of the court, and an almost total lack of formal legal training in Indian legal rights. There has never been a Supreme Court justice who was generally acclaimed for his expertise or judicial creativity in the development of Indian law. Canadian law has not developed a satisfactory judicial theory of the unique constitutional status of Indians, and the Supreme Court has continuously refused to use the sources of Indian constitutional rights to defend the sovereignty of the Indian nations. If there is to be some continuing jurisdiction of the Supreme Court over Canada’s relationship with Indians, the Indians should have some participation in the selection process for members of the court.

Indian participation in constitutional discussions on the Supreme Court can also be defended in relation to the jurisdiction of the court. Quebec has raised objections to having its civil law interpreted by a court composed mainly of common law justices. As Indian governments develop their own legal systems based upon Indian legal concepts, a similar problem will arise if the Supreme Court retains any appellate or judicial review jurisdiction over Indian courts. Although such a relationship is not inevitable, the possibility gives rise to the necessity of clearly defining Supreme Court jurisdiction within the whole context of Indian government.

Communications

One of the major goals of Indian government is the protection of a high degree of social and cultural cohesion within their communities. Indian communities face tremendous cultural pressure from non-Indian society, partly because of the pervasive influence of radio, television, and other forms of mass communications. As these information and entertainment sources exclusively reflect the values of the non-Indian society, they pose a serious problem for Indian governments who are responsible for linguistic protection, educational development and cultural enhancement.

While the long-term effects of modern mass culture are not yet fully understood, it is recognized that a rapid erosion of traditional lifestyles and skills follows an initial exposure to mass communications technology. The comparatively recent development of satellite communications and cable television has meant that most Indian communities are now experiencing intensive exposure to television for the first time. Northern communities of Indians and Inuit have expressed their concerns respecting the rapid changes of community life which are occurring as a result of this sudden general availability of television.

It is a fact that Indians have had little or no participation in the development of public or commercial broadcasting. Yet the scope of the dilemma goes beyond such policy questions as Indian input into programming, or how the mass media can achieve a better cultural balance. Indian governments, in order to protect and advance Indian culture, must have some control over such jurisdictional matters as access, regulations for programming content, educational television and radio, and general control over the licensing of commercial enterprises. The traditional argument of the province of Quebec respecting its need for jurisdiction over communications to protect the French language and culture is now received with much sympathy across the country. Considering that Indian governments must fulfill a similar mandate with respect to a smaller and more widespread population, the argument that they must assume jurisdiction over communications is just as compelling.

Fisheries and Off-Shore Resources

The basis of Indian government claims to oceanic and inland waterway resources is similar to that for land resources and hunting rights. Fishing rights are included specifically in several treaties and are further recognized to be an important element of aboriginal rights. Other sources of Indian fishing rights can be found in the “non-interference” provisions in the Royal Proclamation of 1763 and other international treaties signed by the British as allies of the Indians. Yet Canadian law has been ineffective in protecting fishing rights owing to its adherence to parliamentary supremacy and the unwillingness of the judiciary to respect the largely proclamatory language of the constitutional documents which recognize them.

The current plight of the coastal Indians of British Columbia presents a vivid example of the struggle facing Indians when their aboriginal rights are given neither legislative nor judicial recognition. These Indians, who depend upon fishing for their livelihood, face an on-going legal battle with the Department of Fisheries and the Department of the Environment to assert their constitutional and aboriginal rights. These

organizations and the British Columbia government have refused to recognize any special fishing rights for Indians and persist in enforcing conservation laws in the same manner as against non-Indian sportsmen and commercial fishing ventures. The recognition of Indian government jurisdiction over all aspects of marine resource management would appear to be the best method of accommodating Indian fishing rights within the Canadian legal system.

Jurisdiction over territorial waters and inland waterways is an adjunct of territorial sovereignty under international law. The claim to oil and other off-shore resources flows from the exercise of sovereignty over the contiguous land base, hence the question of off-shore resources becomes inextricably connected to the whole issue of land claims and sub-surface resources. Both the James Bay settlement and the COPE agreement in principle recognized the Indian and Inuit claim to sub-surface resources through royalty sharing. This principle must be extended to all those coastal lands where Indian title is established, whether by treaty, aboriginal title or land claim settlement. Resource development, royalty sharing and ecological conservation are just some of the jurisdictional problems requiring joint federal-provincial-Indian negotiations within the framework of the current constitutional discussions.

The Monarchy

All Indians in this country have a constitutional status or a right to a constitutional status involving a direct relationship with the Crown. The Indian treaties were negotiated directly with representatives of the Crown in either of these capacities. Special constitutional provisions regarding Indians can also be found in international treaties negotiated by the Crown, such as the Treaties of Utrecht and Ghent. Finally, many non-treaty Indians come within the scope of the Royal Proclamation of 1763, which guaranteed the independence of the Indian nations and established an on-going trust relationship between the Indians and the Crown.

Despite the evolution of responsible government and the assumption of executive power by the cabinet, the relationship between Indians and the Crown continues to be more than merely symbolic. The special constitutional status of Indians, now generally recognized by such authorities as the Berger report, the Pepin-Robarts report and constitutional proposals of the Quebec Liberal party, protects the independence of Indian nations. Although their constitutional position has been ill-defined within the Canadian judicial system, it is clear that Indians are not ordinary citizens of Canada and that they have a “separate nation” status — a status which has been recognized by the government by its formal commitment to uphold

treaty rights and its willingness to negotiate land claims in the north. To the degree that Indians do constitute separate nations, their dealing with Canada must be with the executive branch of government, which is now legally defined as being the Crown in right of Canada.

Because the special status of Indians can be traced directly to agreements with the Crown, any change in the status of the monarchy in Canada could have serious legal implications for Indian rights. A simple assumption of all royal obligations by an internal Canadian office would not guarantee these rights, since these have not yet been properly defined by the Canadian courts. This would amount to a unilateral revision of the legal underpinning of Indian constitutional status in the absence of a consensus as to what this status is. Indians have not and would never recognize any modification in their relationship with the Crown unless they had agreed to such a change through discussions with the Crown.

Foreign Affairs

In recent years the Indians of Canada have established formal relations with other indigenous peoples, such as those of North and South America, Australia and the Arctic regions. Aboriginal peoples throughout the world have recognized their common interests and problems and how they can assist one another through a continued active presence within the international community.

The World Council of Indigenous Peoples has been formally recognized by the United Nations, and accordingly has an international legal and political status. This signifies an international recognition that aboriginal peoples have rights as aboriginal peoples which go beyond anything conferred by the nation states created by colonialism.

The Pepin-Robarts report has recognized the importance of Indian involvement in international affairs, and called for greater communications between the native peoples of Canada and other indigenous peoples. There are additional questions of historic Indian treaty relationships with other nations. Because the province of Quebec has been active internationally, the question of jurisdiction in foreign affairs has been seriously debated in Canada. Indian international activity should be clearly recognized in any new formulation of foreign affairs jurisdiction.

Taxation, Trade, Equalization and Regional Development

The ability of Indian governments to effectively govern their communities, and the ability of these communities to be self-supporting, is clearly going to depend upon the establishment of a viable economic base. The attempt of the federal government to direct economic development from Ottawa has generally failed because of the small land base, bureaucratic insensitivity, and the inflexibility of the economic sections of the Indian Act. The result is that the majority of Indians remain to some degree economically dependent upon the government. There will be no amelioration of this situation until Indian governments can assume full authority for the planning and direction of their economies.

The question of Indian government economic jurisdiction cannot be divorced from those of resource ownership, resource revenue sharing, equalization and regional development. The resource base must be clearly defined in conjunction with taxation powers and jurisdiction over trade. The complexity of modern economic planning and implementation requires a “package” approach to the definition of Indian government economic jurisdiction.

Indians have traditionally been exempt from taxation if they work or reside on a reserve, although the extent and scope of the exemption has been the subject of much litigation in recent years. The principle of exemption must be extended to provide Indian Government with a tax base sufficient to maintain a maximum of economic self-sufficiency base. These governments must further obtain the necessary jurisdictional powers to protect local industries, regulate land development and minimize the social disruption of economic development.

Although the Jay Treaty purports to guarantee free movement and trade for Indians across the American border, this right has been denied by the Canadian judiciary. As with all treaty rights, this principle must be entrenched in the Constitution, but it also must be extended to provide Indian governments with the necessary jurisdiction to regulate trade within Canada. Many incipient Indian industries will have to be protected in their infancy. They must be allowed to grow to a competitive position with the huge and well-established commercial ventures which now dominate the Canadian economy.

The Amending Formula, Declaratory Power and the Spending Power:

If joint Indian-government negotiations result in a new Constitution which entrenches treaty rights, aboriginal rights and Indian government jurisdiction, then some agreement must be reached on a consensual process for amendment of these provisions. As a constitutional entity, Indian governments clearly would not be bound by jurisdictional changes made without their consent.

The declaratory and spending powers are generally defended in terms of the paramountcy of the national interest over provincial concerns. Yet these sweeping powers can, and have been used to undermine provincial jurisdiction, and as such are deeply resented by many provinces. As a third order of government, Indian governments must be guaranteed protection against encroachment on their jurisdiction through the use of powers which should, at most, be reserved for true national emergencies. No such interference can be tolerated or recognized unless it resulted from jointly developed constitutional mechanisms, and with full and equal Indian participation.

Conclusion

The issue of treaty and aboriginal rights and Indian government are fundamental to the relationship of Indian people with the government of Canada. We have already rejected assimilation into the greater society as a goal, and we have been told by recent Prime Ministers and Ministers of Indian Affairs that they, too, reject the goal of assimilation. In fact, they have stated publicly that they favour the strengthening of Indian government in Canada.

The need for certain basic new arrangements has been conceded for a number of years in relation to the northern territories. The same understanding now exists for southern Canada as well.

Canadian political leaders have recognized the special position of Indian people by giving the National Indian Brotherhood a role in the constitutional discussions of the first Ministers. Also, they are aware of the national and international political activities of the Brotherhood, including its sponsorship of the World Council of Indigenous People and the delegation to England in 1979.

Constitutional recognition of treaty and aboriginal rights and Indian government is logical and appropriate at this time. It will be seen nationally and internationally as a clear achievement coming from ten to twenty years of renewal in the relationship between Indians and non-Indians in Canada.

Share this: