First Ministers’ Conference on Aboriginal Constitutional Matters, The Constitutional Position on the Blood Tribe (15-16 March 1983)
By: Blood Tribe
Citation: First Ministers’ Conference on Aboriginal Constitutional Matters, The Constitutional Position on the Blood Tribe, Doc 800-017/035 (Ottawa: 15-16 March 1983).
Other formats: Click here to view the original document (PDF).
FIRST MINISTERS’ CONFERENCE ON ABORIGINAL CONSTITUTIONAL MATTERS
THE CONSTITUTIONAL POSITION ON THE BLOOD TRIBE
ASSEMBLY OF FIRST NATION
March 15-16, 1983
THE CONSTITUTIONAL POSITION OF THE BLOOD TRIBE
BLOOD TRIBE—CANADA RELATIONSHIP ISSUES
B.N.A.ACT SECTION 91 (24) INDIANS AND
LANDS RESERVED FOR INDIANS
CANADA ACT 1981 SECTION 37
IMPLEMENTATION OF TREATIES
EDUCATION AND HEALTH
INTERPRETATION OF SECTION 35
CO OPERATIVE FEDERALISM
CONSTITUTIONAL FRAMEWORK FOR THE DEVELOPMENT OF CANADIAN LAW
PRESENTED-BY CHIEF ROY FOX
MARCH 15, 1983
THE CONSTITUTIONAL POSITION OF THE BLOOD TRIBE
The Blood Tribe have always existed as a nation. From time immemorial we have controlled our lands, encompassing thousands of square miles.’ We have controlled our religious, political, economic and cultural destiny. We are caretakers of this land, not for ourselves but for our children, and all generations into the future. This is a sacred trust given to us by the Creator. We have a duty to safeguard this trust against the immediate and perhaps short- sighted concerns of political factions and parties, and federal and provincial governments. The land is not ours to exploit; our rights are not ours to negotiate and limit. They are for future generations, and must be intact for them. Our forebearers signed Treaty 7, understanding that we would share the land in return for certain additional rights. The land was not to be alienated from the Blood people. The government of the nation of Canada, including the provincial governments, may not affect these rights of the Bloods.
We are attending this conference to state our position to the government of Canada. We do not recognize the capacity of this conference or those who attend it, to negotiate, define, or limit our rights without our direct input and consent. We do not recognize the competence of representatives of the provincial governments to participate in any conference concerning our rights. Even the draftors of the B.N.A. Act intentionally excluded the provincial governments from dealing with us; it was recognized that they held vested interests which could be contrary to our rights and best interest. This is still the case today.
Any discussion with the central government concerning the identification and definition of our rights cannot be completed in two days. Such a serious matter requires serious commitment from both parties – – the Bloods and the central government. It requires an on-going process with U.N. supervision, during which it is expected that the central government would become more familiar with our history and philosophy. Only when you truly understand us as a people can there be some meaningful communication. The difference in your interpretation and our interpretation of Treaty 7 represents the type of unhappy misunderstanding which we have experienced up to the present.
A full and meaningful participation on our part is a requisite to any identification of our rights. Our consent is necessary for any legislative or constitutional enactments respecting our rights. Any unilateral action by the government of Canada would be considered invalid by the Blood people.
The government of Canada has a dismal record with respect to dealing in good faith with aboriginal people. We are aware of the failure of the NIB—Joint Committee; we remember the attempt at legislative assimilation in the White Paper of 1969. Recent leaks revealing the strategy of ’embroiling’ native people and provincial premiers during this conference do not increase our confidence in your good faith. Other examples are too numerous to mention. Such tactics must stop or our dealing with each other will not be mutually satisfactory. You are now inheriting the legacy of earlier governments’ deception of indigenous people. Do you want to perpetuate this for your successors?
Any current legislation proposal directly affecting the future status of our right must be suspended until those rights are entrenched in the Constitution; government policies, operational plans, legal opinions, conditions to contributing agreements and similar administrative actions must be suspended until the yet-to-be-decided on-going process renders a mutual agreement on entrenchment of our rights. The Blood people
must retain all services and programs while this process continues Anything less amounts to economic blackmail.
The Blood people have a unique history; from these circumstances comes our present reality. We have plans for our future. We will evolve in our own way, in our own time, and according to needs identified by us. We reject any attempt to categorize us with other aboriginal groups. They also have thcir own unique history and future, and it would be inappropriate to consider us as all the same. Perhaps the semantic confusion resulting from the label ‘Indian’ has confused the Canadian government; be assured that we are not all the same people.
We are here to present our position, and to establish the mechanism and the meetings with you necessary for an on~going process. Non~Indians in Canada are responsible for the actions of their forebearers, because they are living as they do now as a result of actions taken by previous governments. The Bloods are also in their present situation because of these earlier government actions. This historic opportunity to fairly resolve our constitutional issues offers you a chance to repair past wrongs, and to set the stage for future peaceful, friendly relations between our two peoples.
The world is watching Canada’s action in this matter. Long a protector of rights on the international scene, Canada has yet to clean up her back yard. Such a situation causes other nations to doubt your sincerity.
To deal with us other than in good faith only means more injustice, racial resentment, and continuing problems for generations to come.
BLOOD TRIBE—CANADA RELATIONSHIP ISSUES
The Blood Tribe hereby affirms the Declaration of the First Nations.
The Blood Tribe has always been a distinct people and hereby
affirms its right and responsibility to remain a distinct people. As a distinct people, the Blood Tribe has inherent powers and responsibilities which it continues to maintain.
The Blood Tribe has had a special relationship with Canada for a hundred and six (106) years. During these years a number of problems have developed with regard to this special relationship. In view of the fact that Canada is going through constitutional reform, the Blood Tribe takes the position that it is an excellent opportunity for the Blood Tribe and Canada to mutually resolve problems that affect an otherwise good relationship. Accordingly, the Blood Tribe hereby puts forth its position on a number of problem areas which affects its relationship with Canada:
1. B.N.A. Act, Section 91 (24) Indians and Lands reserved for Indians.
The Blood Tribe takes the position that Section 91 (24) does not give dictatorial powers to Canada over Indians and lands reserved for Indians. The fact that Indians and Lands reserved for Indians falls under federal jurisdiction simply means that the federal government, and not provincial governments, can enter into relationships with Indians in the same sense that external affairs falls under federal and not provincial jurisdiction.
The Blood Tribe finds it hard to reconcile Section 91 (24) and the involvement of the provinces in the constitutional discussions between the Indian Peoples and Canada. The Blood Tribe interprets the involvement of the provinces as advisory to the federal government and not as governments acting in their own right.
2. Canada Act, 1981, Section 37
It is the position of the Blood Tribe that Section 37 addresses two (2) separate matters: (a) identification of rights and (b) the definition of the rights identified. It is the position of the Blood Tribe that two (2) of the rights of the Indian Peoples
have already been identified by Section 35 of the Canada Act, 1981, namely existing Aboriginal and Treaty Rights. The application of Section 37 to Section 35 requires only definition of existing Aboriginal and Treaty Rights, and consequently, other rights may be brought forth for discussion.
3. Aboriginal Rights
It is the position of the Blood Tribe that ‘Aboriginal Rights‘ mean mutual recognition and mutual respect between two peoples with regard to their land, cultural, and the relationship between the land and the culture. Land includes the total environment — what is above and below the land; animal and plant life; air and water. Culture includes language and philosophy, religion, economic, social, political, and governmental systems and social values.
It is the position of the Blood Tribe that its Aboriginal Rights have always existed; they have never been surrendered or alienated, though they may have been modified to a very limited extent by treaty. The words ‘Existing Aboriginal Rights’ in Section 35 confirms that Canada takes the same position.
It is the position of the Blood Tribe that treaties are solemn agreements between two distinct peoples. Canadian Indian Treaties are agreements between Canada’s people and the Indian Peoples. Canadian Indian Treaties are agreements with regard to land only, and not with regard to culture nor with regard to the relationship between the land and culture. Treaties are not surrenders of Aboriginal Rights. Treaties are modifications of the Indians‘ exclusive right to their aboriginal territories, but only to the extent of the Indians’ agreement to share their land. Treaties are not real estate sales agreements. The quid pro quo for the Indians‘ agreement to share their land with Canada’s people is an agreement on the part of Canada that the Indians can reserve to themselves areas of land for their exclusive use (reserves),
to provide economic assistance to the Indians (treaty money), to provide free education and free health care. Further, Canada agreed that the Indians can continue to hunt, fish, trap and harvest plants as required by the Indians. The above do not include all of the treaty promises made by Canada but represent the most important ones.
5. Implementation of Treaties
It is the position of the Blood Tribe that they have fulfilled their part of the treaty agreement with Canada, namely to share their land subject to a reservation. However, Canada has had a dismal record in carrying out its part of the agreement. Canada puts a very limited and restrictive interpretation on its part of the agreement, which is a cause for some of the strained relationship between the Indian Peoples and Canada. It is the position of the Blood Tribe that treaties whether categorized as legal or not, are nevertheless binding on both parties.
Insofar as the major promises by Canada, it is the position of the Blood Tribe regarding:
Reserves are the property of the particular tribe involved. The Indians did the ‘reserving’ and not Canada. The establishment of a reserve is not quid pro quo for the shared interest in the land covered by the treaty outside of the reserve. The Indians continue to have an interest in the lands outside their particular reserves.
b. Treaty Money
It is the position of the Blood Tribe that treaty money is symbolic of Canada agreement to economically assist Indian Tribes. The amount and value of the assistance is to be interpreted in a relative sense in accordance with the times and needs.
c. Education and Health
It is the position of the Blood Tribe that free education and health were promises without ‘strings attached’.
d. Hunting, Fishing, Trapping and Gathering
Restrictions put on the above treaty through case law, statutory law, and regulations are not in keeping with the spirit of the treaties and such restrictions lifted.
6. Interpretation of Section 35
It is the position of the Blood Tribe that since Section 35 does not state that ‘existing aboriginal and treaty rights are hereby recognized and affirmed subject to existing case law, statutory law, and regulations’, that all that body of law that have in the past restricted aboriginal and treaty rights is no longer applicable and that a new body of law will be developed pursuant to mutual agreement.
7. Definition of ‘Indian’
The Blood Tribe maintains its inherent power to determine who will become a member of the Tribe. The Blood Tribe can not continue to tolerate the invasion by Canada into this area of Blood Tribe Governmental responsibility. Only Indian nations can determine their own citizenship.
8. Co operative Federalism
The Blood Tribe recognizes that Canada approaches federalism on on a co operative basis i.e. even though they the federal government has specified the powers and responsibilities separate and apart from the provincial governments. Never-the-less the two levels of government inter-lock their powers and responsibilities.. co operative federalism in theory seems as a desirable and workable proposition. However in fact it causes a lot of jurisdictional problems. The Indians of Canada have been caught in this jurisdictional melieu caused by co operative federalism. In many instances Indians and lands reserved for Indians have in effect been pawns in trade offs between the federal and provincial governments. It is the position of the Blood Tribe that co operative federalism abrogates the intent and spirit of the
B.N.A. Act and more specificially Section 91 (24) and that such abrogation cannot continue without our consent.
9. Constitutional Framework for the Development of Canadian Law
The Blood Tribe finds it difficult to reconcile the whole concept of a constitution with the traditional notion of parlimentary supremacy. In fact Canada misleads its people by making them believe that they have a constitutional form of government, when in effect one cannot talk about a constitution so long as parliamentary supremacy remains as an operational concept of government. A lack of a constitutional framework results in a melting pot approach to law making. In which there is no effective distinction between what is constitutional and what is statutory law and what is a regulatory scheme: all these three (3) types of laws are all given egual weight and effect. It results in regulations for instance, over riding constitutional rights. The Blood Tribe would like to offer advice to the government of Canada that it either adopt a constitutional form of government or maintain parlimentary supremacy, if the former is adopted by Canada a constitutional framework within which Canadian law can develop is a definite requisite. If Canada is going to maintain parlimentary supremacy as its approach to government then constitutional discussions and activities are a futile exercise.