First Ministers’ Conference on Aboriginal Constitutional Matters, “The Right to be Indian” (15-16 March 1983)
By: Stoney Indian Nation
Citation: First Ministers’ Conference on Aboriginal Constitutional Matters, “The Right to be Indian”, A Statement on the Constitutional Act 1982 and Recommendations by the Stoney Indian Nation of Treaty No. 7, Doc 800-017/034 (Ottawa: 15-16 March 1983).
Other formats: Click here to view the original document (PDF).
FIRST MINISTERS’ CONFERENCE ON ABORIGINAL CONSTITUTIONAL MATTERS
“THE RIGHT TO BE INDIAN”
A STATEMENT ON THE CONSTITUTIONAL ACT 1982
AND RECOMMENDATIONS BY THE STONEY INDIAN NATION
OF TREATY NO. 7
PRESENTED TO THE RIGHT HONOURABLE P. E. TRUDEAU
PRIME MINISTER OF CANADA
ASSEMBLY OF FIRST NATION
March 15-16, 1983
A DECLARATION OF THE FIRST NATIONS
We the Original Peoples of this Land know the Creator put us here.
The Creator gave us Laws that govern all our relationships to live in harmony with nature and mankind.
The Laws of the Creator defined our rights and responsibilities.
The Creator gave our spiritual beliefs, our languages, our culture, and a place on Mother Earth which provides us with all our needs.
We have maintained our freedom, our languages, and our traditions from time immemorial.
We continue to exercise the rights and fulfill the responsibilities and obligations given to us by the Creator for the land upon which we were placed.
The Creator has given us the right to govern ourselves and the right to self-discrimination.
The rights and responsibilities given to us by the Creator cannot be altered or taken away by any other Nation.
-Joint Council of the National Indian Brotherhood
November 18, 1981
THE NATURAL LAW DOCTRINE STATES:
That the rights established by natural law are sacred rights inborn in man because they are implanted in man by a divine nature; and that positive law can neither establish nor abolish these rights, but only protect them. This is the essence of the natural law doctrine.
We, the original peoples, were placed on this Great Island to live according to the plan of the Creator and in harmony with His creation. Will the Canadian Constitution blend its voice with the harmony that is our right and our destiny, or will it create discord in the song of our land?
-Chief John Snow
Wesley Band of the Stoney Tribe
TABLE OF CONTENTS
|INDIAN TREATY RIGHTS||4|
|IDENTIFICATION AND DEFINITION:||8|
|(i) A First Nations Perspective|
|(ii) A Question of Focus|
|(iii) An On-going Constitutional Process|
|(A) A First Nations Protocol|
|(B) A Joint Commission on Indian Self-Government|
I Graph: Preferred On-going Constitutional Process
II Proposed Terms of Reference for a “Joint Commission on Indian Self-Government”
III An Historical Perspective and Commentary on the Spirit and Intent of Indian Treaties
The treaties are of utmost importance to Indian people because they guarantee our way of life, and help to preserve our traditional ways, and beliefs, and will enable future generations to follow and continue with the important teachings of our forefathers.
The Indian Nations of southern Alberta signed Treaty No. 7 at Blackfoot Crossing on September 22, 1877.
The Treaty recognized the special status of Indian people as the aboriginal habitants placed on this Great Island (North America) by the Great Spirit.
The Treaty established the terms of peace, law, order, and inter-government relationships between the signatory powers.
The Treaty set down some specific terms and obligations on behalf of the Crown, in return for peace between our nations.
The Treaty made provision for certain rights, which were paid for in advance by the Terms of treaty to share the homelands of the Indian Nations (see Appendix III in this report).
THEREFORE, THE HEADMEN OF THE STONEY INDIAN NATION PETITION THAT OUR SACRED TREATY RIGHTS BE INCORPORATED INTO AND BE MADE A LEGAL PART OF THE CANADIAN CONSTITUTION ACT 1982.
The Stoney Tribe
PREAMBLE TO AN ON-GOING PROCESS
PREAMBLE TO AN ON-GOING PROCESS
Participation in the First Ministers Conference on March 15-16, 1983, and at future meetings on Constitutional amendment, is contingent on the following assumptions and conditions:
1. We want to make it understood that participation of the First Nations in these meetings does not imply that we are below the authority and control of Canada, and that our government-to-government relationship with Canada will be discussed once Canada has recognized our basic rights.
2. We want to make it understood that we object to the power which provincial governments have been given to determine the way in which Canada will recognize or attempt to limit our rights. Our relationship has historically been with the Federal Government, which must take the only moral and just position possible and recognize our rights, and that it is the Federal Government which must negotiate with the provinces the. ways in which our agreed-upon rights will be made a fact of life in Canada.
3. We want to make it understood that any attempt to include the government-to-government relationship of the First Nations with Canada within a definition and application of rights for all aboriginal peoples is not acceptable. Neither do we wish to be an obstacle to any other peoples who are seeking protection of their rights. Furthermore, we want to make it understood that there is no definition and identification of rights which can be made applicable to all First Nations, for we are diverse peoples, with unique histories, lands, languages, cultures, and each with the right of self-determination.
In addition to these basic understandings, we have reasonable, rational demands to make of the Federal Government, and we are expecting the support of all Canadians and of all provinces, including that of their elected and appointed officials.
1. We require that the Federal Government show its good faith by signing an agreement or protocol with the Indian Nations, guaranteeing the suspension of all legislative proposals, operational plans, legal opinions, conditions for contribution agreements, administrative actions, and land claims processes based on the extinguishment of rights. This protocol would remain effective until Canada restricts itself through a Constitutional limitation against any legislation or action which abrogates treaty rights, or aboriginal title and rights.
2. We require that the Federal Government enter into an on-going process or mechanism at a political or joint commission level, for the purpose of facilitating agreement between the Federal Government and the First Nations on the protection of treaty rights and aboriginal title and rights. Such an on-going process would continue until an adjourned First Ministers meeting is reconvened at a determined time and place.
3. We require that the Federal Government provide the necessary financial support not only to the on-going process or mechanism, but also so that the Indian peoples and communities may have complete and unhindered participation in and access to the adopted process or mechanism.
4. We require that the Federal Government agree, in the above-mentioned protocol, that all existing services and programs for Indian peoples and their institutions will be continued without prejudice while the on-going process or mechanism is operational.
At this time we do not intend to dwell on precedents, court decisions, and international and domestic case law which can be marshalled in support of our titles and rights. For purposes of this initial meeting with the First Ministers, we are concerned with our aboriginal and treaty rights from a political perspective, a perspective sincerely dedicated to enhancing Canada as a federated nation. Until the Indian people truly feel that our rights are guaranteed and respected in the Canadian Constitution, Canada will not achieve its goal of a just society.
INDIAN TREATY RIGHTS
INDIAN TREATY RIGHTS
Indians should be regarded as ‘citizens plus’; in addition to the
normal rights and duties of citizenship, Indians possess certain
additional rights as charter members of the Canadian community.
[The Hawthorn Report, Recommendation #7]
. . .the right [of Indians to be citizens plus] derives from
promises made to them, from expectations they were encouraged
to hold, and from the simple fact that they once occupied and
used a country to which others came to gain enormous wealth
in which Indians have shared little.
[The Hawthorn Report, Vol. I., p. 6]
The Indian Nations of Canada hold a dual role at this First Ministers meeting–firstly, we are the aboriginal or first people placed here by the Great Spirit; and secondly, because our forefathers entered into sacred covenants, the treaties, with the British Crown and these agreements are now the legal, moral and just responsibility of the Government of Canada.
According to the natural law doctrine, and according to Indian oral traditional law, the Indian people hold a unique role in Canadian constitutional matters. The Indian people, as charter members of the Canadian community, and as signatories to the treaties with the Crown, indeed, hold a unique position in Confederation. During these meetings the Indians’ position should not be brushed aside by the Government of Canada but must be duly recognized in the Constitution.
Those Indian Nations that signed treaties believed that they were entering into a sacred covenant with the Crown. If we aspire to achieve the primary purpose of this meeting, which is to identify and define aboriginal and treaty rights, we must
reach back into the past relationships between our peoples. We must accept the negotiating principles set down in the Royal Proclamation of 1763 and we must agree upon the spirit and intent of the subsequent treaties.
We want to remind Canadians that it is because of the treaties which our forefathers signed that we still retain our aboriginal Indian rights. It is these treaty agreements–both the written documents and the verbal promises and agreements–that enshrine forever our rights as Indian people. The Indian treaties with the Crown are real, and we want to see that these treaties and other related documents are included in the new Constitution. The treaties are sacred covenants; they are binding documents; and they must not be altered or broken unilaterally by the Government of Canada. The treaties (as understood by both parties), the Royal Proclamation of 1763, the Declaration of the First Nations, and all other related materials to the treaties must form the constitutional basis of our discussions with the Government of Canada.
The treaties established a fundamental set of relationships between the Indian governments and the Crown. In exchange for the peaceful occupation of Indian lands, the Crown made lawful promises in the treaties to provide for the health, education, training, economic assistance, protection, peaceful relations, freedom to pursue our traditional ways and beliefs, and general welfare of the Indian peoples.
We have never been in a position to spell out our treaty Indian rights in a foreign language, that is the English language, in a constitutional or legal form. We have always talked about our rights in our own languages with our elders. In the past, this has always put us in a weaker position in our dealings with government because of the language problems in interpretation. To try to explain these rights in a foreign language is very difficult; it is almost impossible, because sometimes we cannot find equivalent English words to our Indian words.
This is one of our concerns if we were to follow the Federal Government’s lead in attempting to write down a definition for aboriginal and treaty rights. Moreover, the legal and legislative system in this country does not recognize the oral promises the same way it does the written document. We question whether a single definition can be drafted that will take in the different interests of Indian people across Canada. There are numerous instances of misunderstandings concerning the treaty promises arising from different language and cultural backgrounds.
As one example, regarding the medicine chest mentioned in the treaty, our elders believe what they were saying is something like this:
Our people were free to roam.
We roamed in the freedom of winds.
We were independent.
We had our own medicine people.
Much of our knowledge in medicine was perceived through dreams, visions, and revealed to us by the Great Spirit, the Creator. Therefore, our people had their own medicine.
Traditionally, our forefathers used to go to certain places where they called their own. In Alberta, the Indian people used to go for healing purposes to various mountain hot springs. They were sacred areas. These are no longer available to us as they once were. Many, like Radium and Banff, are now resort areas! Our people used to go to the Lake Louise area, to Pipestone River to get pipe stone for ceremonial purposes. This is no longer available to us because it is now inside Banff National Park and there are laws prohibiting the gathering of materials in the park. Indian people used to go to the Cypress Hills area to gather herbal medicine, to hunt and to camp there, but this is no longer possible because of settlements in that area.
By taking all of these away from us, the government has given itself a great responsibility. The government has assumed all medical services and responsibility for Native people. The medicine chest in the treaties can now be interpreted to mean that the government will provide all medical, hospitalization, modern medicine and drugs, because the government has taken almost all medicine and sacred areas from us.
Similarly, this fundamental responsibility of the Crown includes other treaty rights such as ensuring and assisting us in our economic livelihood. The very places where we made a good living have been taken from us with a stroke of a pen. Essentially all our natural resources are taken from us and now the government is trying to say, “You have no rights to these vast resources except for those set aside on Indian reserve lands.”
Over the generations, our leaders and tribal elders have attempted to get the Government of Canada to honour our treaty rights. We are hopeful that this First Ministers meeting will finally, after years of frustration and rejection, initiate an on-going process to identify and define, in a just and impartial manner, our special status as ‘citizens plus’ in Canadian society.
Since patriation of the Constitution from Britain, the Canadian Government has assumed a great responsibility for any outstanding aboriginal and treaty rights and claims. Canada has inherited from the British Crown all the treaty promises and obligations of a treaty signator. Indeed, the Government of Canada must adhere to the judgement and statement made by Lord Denning.
Indians will be able to say their rights and freedoms have been guaranteed to them by the Crown–originally by the Crown in respect of the United Kingdom, now by the Crown in respect of Canada–but in any case, by the Crown. No Parliament should do anything to lessen the worth of these guarantees. They should be honored by the Crown in respect of Canada as long as the sun rises and the rivers flow.’ That promise must never be broken.
IDENTIFICATION AND DEFINITION
IDENTIFICATION AND DEFINITION
During the past twelve months, we have observed a post patriation constitutional process which was to address:
. . . constitutional matters that directly affect the
aboriginal people of Canada, including the identification
and definition of the rights of these people to be
included in the Constitution of Canada . . .
Our people have learned a great deal during the Constitutional renewal process. We respect the decision of those Indian Nations who have decided against participating in these meetings. This attests to their loss of faith in the good intentions of the Canadian governments. The various Indian Nations, like ourselves, who have accepted the challenge and the risk of coming here, hope and trust that a measure of confidence can be justifiably restored as a result of the First Ministers meetings.
(i) A First Nations Perspective
We have strong feelings that the effectiveness of the poste patriation process which we were expected to follow served neither our own requirements, nor the best interests of Canada, including provincial governments. Our major concerns can be summarized as follows:
a) In preparation for the First Ministers meeting, a series of working group sessions were convened involving Federal and provincial officials, to which Inuit, Metis, and First Nation representatives were invited. In our view, this working group process was not a satisfactory mechanism because:
– the participating Federal and provincial officials did not seem to have any coherent guidelines or mandate to give focus or direction to their task;
– the consent of the First Nations was never requested nor obtained, and the process did not have input from the First Nations;
– the tendency on the part of many officials involved was to recast every First Nations’ position to conform with established and familiar patterns. The result, for the most part, was a reiteration of old biases and dated misconceptions, which failed to provide First Ministers with a coherent and relevant set of options for dicussions–options which could be mutually acceptable.
b) We want to make a few observations from our perspective concerning our aboriginal and treaty rights:
– the last time that Canada addressed the issue of aboriginal and treaty rights was in 1969, when a “White Paper” detailed a plan to terminate aboriginal and treaty rights. In a meeting with the Prime Minister in June, 1970, there was a commitment not to implement this government policy, in fact, a promise was made that “we won’t force solutions on you, because we are not looking for any particular solutions”;
– the constitutional patriation process which began in 1978 once again renewed fears of unilateral extinguishment of our rights;
– the post-patriation process has not been reassuring and there is a deep concern among several Indian Nations of their exclusion from any oh-going Constitutional amendment process. As you are aware, we have repeatedly tabled our objection to our status at these meetings as invited guests for the vague purpose of “consultation.”
c) In these circumstances, we have come to the First Ministers meeting with the strongest of reservations –and yet with an honest hope. Our hesitant feelings arise from present legislation, and from our historical experiences, because:
– traditionally, government policy on Indian matters has been formulated without our knowledge or approval. We want it clearly understood that our presence at this First Ministers meeting does not fulfill the requirement of “consultation”;
– constitutionally, the Indian Nations must be involved in any decision—making regarding our aboriginal and treaty rights. Otherwise, the result may be years of frustrating and unproductive exchanges with lesser government officials, and subsequent rounds of exhausting and frustrating lobbying;
– realistically, while we are faithfully participating in these constitutional meetings, we are totally opposed to some of the existing and proposed government policies, such as the new Indian Government Bill and some of the service programs. The terms of some contribution agreements for providing services may in effect accelerate the erosion of our aboriginal and treaty rights and thereby undermine the credibility of the constitutional discussions. Indeed, by the time the on-going process is completed, many of the acceptable options may be negated by the effects of current or future legislative, policy, or administrative initiatives over which we have no control.
THEREFORE, WHILE WE ARE ENGAGED IN AN EXTENDED CONSTITUTIONAL PROCESS WHICH MAY TAKE SEVERAL YEARS TO COMPLETE, WE PROPOSE THAT AN IMMEDIATE ACCORD OR PROTOCOL BE DECLARED AND THE PRINCIPLES FOR AN ON-GOING PROCESS BE ENDORSED AT THIS MEETING.
(ii) A Question of Focus
Much hard work has gone into the formulation of proposals for the First Ministers meeting. There is much more work remaining. The families, clans, and communities of the Indian Nations need to diligently study the proposals, and likewise, the First Ministers will need to study the material before they the Indian Nations their informed response.
Thus, insofar as the rights and interests of the Indian Nations are concerned, we recommend that no attempt be made at this moment to engage in “identification and definition” in a substantive sense. Instead, this meeting should be adjourned to a future time and place, and the immediate priority be a series of meetings on the substance of aboriginal title and treaty rights. Our purpose today is to suggest ways and means to make those future meetings productive and acceptable to all concerned.
Specifically, we would propose that:
a) Careful consideration be given to the amendments sponsored by the Federal Government. We are prepared to include this in the on-going process of “identification and definition,” on the understanding that a total on-going process is confirmed.
b) Although a provision for consultation cannot be accepted as an adequate substitute for a clause requiring the consent of the Indian Nations, we are prepared to table this issue for discussion in the on-going process, again, on the understanding that such a process is confirmed at this meeting.
c) To give focus and direction to the on-going process, we propose that the First Ministers concur with the Indian Nations in approving mutually-acceptable terms of reference for a Joint Commission to suggest how aboriginal and treaty rights can be expressed in institutional, legal, political, fiscal, economic, and social terms within Canada. The implications of each of the options would be fully analyzed, and in each instance, the Constitutional amendments required would be identified.
d) We propose that the on-going process should meet the following criteria:
– the mechanism should have a clear and formal mandate acceptable to the First Ministers and representatives of the Indian Nations;
– a time frame should be established within which the task, as defined, will be completed;
– the work should be done by a full-time complement of qualified persons whose report will be tabled with the Indian Nations and the First Ministers prior to the next scheduled sessions;
– representation on the on-going process must be shared equally between the Indian Nations and the Federal Government;
– the working group would work with different regional areas, treaty areas or Indian groups as required in order to take into consideration their specific needs and concerns (see Appendix III).
(iii) An On-Going Constitutional Process
It is evident that any on-going process must have an improved structure and mandate. In addition to the Section 37(2) process, there have emerged a number of closely related meetings and hearings.
For example, a Parliamentary Committee on Indian Self- Government is making an extensive examination of all facets of the relationship of the Indian Nations with Canada, particularly our aboriginal and treaty right of self-government. That Committee will report later to Parliament. In addition, there are several comparative studies, surveys, and other initiatives sponsored by university faculties, Indian organizations, and others. All this adds considerably to our knowledge and understanding of aboriginal title and rights and treaty rights in the Canadian context. While there are many problems and issues which must be addressed simultaneously, the work done can greatly facilitate the task of the First Ministers, if the available material can be mobilized, screened, and evaluated to strengthen the Constitutional process.
Therefore, we want to suggest ways and means through which to make this very complex and important constitutional under- taking more manageable and productive. We want to present two proposals to achieve this purpose.
(See Appendix I for explanatory Chart)
That the Federal Government immediately enter into an agreement or protocol with the Indian Nations pledging not to promote, forward, activate, or continue any legislative proposals, policies, programs, legal activities, etc., which in their application, have or would have the effect of diluting or eroding Indian rights, or closing off future options. It is a matter of principle and protocol that during a time of definition and identification of our rights, that current legislative proposals, administrative activities, and policy initiatives not serve, or even appear to hamper, restrict, diminish, or eliminate our rights.
Such a protocol would contain a clear set of criteria, acceptable to the signatories, which spell out the important characteristics of policies which have the effect of terminating rights. The protocol would establish a joint Federal/Assembly of First Nations “Policy Screening Board” whose task it would be to evaluate existing and proposed policies in accordance with the criteria, and to recommend to the appropriate authorities and to the First Nations adjustments that may be needed.
This protocol would continue in effect until the post- patriation constitutional process is completed.
That the First Ministers join with the Indian Nations in establishing a “Joint Commission” to fulfill a specific mandate on an agreed-upon time frame to put the First Ministers in the best possible position to consider aboriginal and treaty rights in a series of scheduled sessions of the Section 37(2) meeting.
This presentation has already noted the shortcomings of the consultation process which led up to the present meeting. It is clear that we need an on-going process which will have the capacity to address and resolve very complex problems. This important and difficult task is not likely to be done adequately by inter-governmental committees, nor in ad-hoc discussions which occur from time to time between the Indian Nations and Federal officials.
We note that in the past, when governments are faced with the need for direction on issues of similar complexity and importance, special commissions are created for the task. This problem-solving mechanism was applied to articulate the issue of bilingualism and biculturalism in Canada, and the recently appointed Macdonald Commission on Canada’s economic future. We believe that a Joint Commission, properly constituted, could do similar justice to the preparation for the next First Ministers session on aboriginal and treaty rights.
The establishment of a Joint Commission does not require a Constitutional amendment. It could be established along lines such as these:
– the Joint Commission could be established by a Federal Order-in-Council and a resolution of the Assembly of First Nations to fulfill a mutually-agreed mandate. (See Appendix II for suggested terms of reference);
– two of the commissioners would be eminent, capable persons named by the Assembly of First Nations;
– two other commissioners would be selected by the Federal Government. These persons would be expected to have a profound knowledge and appreciation of the issues affecting the Indian people of Canada;
– the Governor-General or his delegate or appointee could act as chairperson of the Joint Commission;
– the Joint Commission would be supported by researchers legal consultants, and technical staff as required;
– the Joint Commission would have resources for travel and to conduct hearings;
– the comprehensive report of the Joint Commission would be presented to the First Ministers and to the First Nations with a view to have provided the framework and background for orderly negotiations and mutually- acceptable agreement.
SUMMARY OF RECOMMENDATIONS
1. We require that the Federal Government show its good faith by signing a protocol with the Assembly of First Nations that all legislative proposals or administrative policies affecting the future constitutional status of aboriginal and treaty rights be suspended indefinitely, including any land claims processes based on the extinguishment of title and/or rights.
This protocol would remain effective while the on-going constitutional process is under way, and all existing services and programs to Indian peoples will continue without prejudice while the on-going process is operational, except as might be otherwise agreed upon.
2. We require that the Federal Government provide for an on-going process or mechanism to facilitate agreement between the Federal Government and the First Nations regarding Canada’s Constitutional guarantees to respect aboriginal title and rights and treaty rights. The onus will be on the Federal Government to make whatever arrangements it might need with the provinces to proceed with such an on-going process.
3. We require the financial support to participate in the on-going process, so that each Indian Nation will not be hindered in responding to the adopted process or mechanism.
4. We require that the Federal Government state in the protocol that all existing services and programs to Indian peoples will continue without prejudice while the on-going process is operational, except as might be otherwise agreed.
5. We believe these prerequisites are just and reasonable to ask of the Federal Government. These are basic requirements for us to continue to participate. We ask that the Federal Government give us these assurances now, publicly, so that we may proceed to the next steps of this conference.
* * *
We are prepared to discuss the concerns raised in this paper and to reach an accord on the proposals for an on-going process which will ensure the entrenchment of our rights in the Constitution.
PREFERRED ON-GOING CONSTITUTIONAL PROCESS
CHART SHOWING PREFERRED
ON-GOING CONSTITUTIONAL PROCESS
*See PDF for chart
PROPOSED TERMS OF REFERENCE
The Committee of the Privy Council, on the recommendation of the First Ministers convened under Section 37 of the Constitution Act, advise that Your Excellency may be pleased to establish a Commission known as the “Advisory Commission on the Development of Indian Self-Government,” to advise the Prime Minister and the First Ministers of the Provinces of Canada and the Assembly of First Nations on matters related to the identification and definition in constitutional terms, of Indian aboriginal and treaty rights and the application and implementation of the rights in Canada’s federated system; the said Advisory Commission to be composed of_________________________________________________ __________________________________________________________________ as members, the said five members to receive such remuneration as approved by the Honourable Treasury Board.
The Committee further advise that Your Excellency may be pleased to authorize the Advisory Commission to adopt such procedures and methods as it may from time to time deem expedient for the proper conduct of its studies and sit at such times and at such places as it may decide from time to time; and to engage the services of such staff and advisers as it may require at rates of remuneration and reimbursement approved by the Honourable Treasury Board.
The Committee further advise that Your Excellency may be pleased to order that the said Advisory Commission make a report to the First Ministers of Canada with all reasonable dispatch.
We believe there is need for an impartial and objective group of persons to consider the questions relating to the immediate and long-term constitutional accommodation of the Indian Nations of Canada. In particular, the members of the various Indian Nations should be given an opportunity to make their views known.
The terms of reference of the Commission will enable it to review all the constitutional, historical and legal ramifications and implications of aboriginal and treaty rights and titles, as well as the ways in which special status can be expressed in contemporary institutional, legal, fiscal and political terms consistent with our federated system of government. Within this general framework, the Commission will be expected to give specific attention to the following matters.
a) the views of the elders of the Indian Nations regarding the foregoing;
b) the alternative ways in which Indian rights can be entrenched in the “Constitution Act”;
c) consideration of the ways in which First Nations and their lands can be accommodated within confederation without compromise to their rights and titles;
d) other recommendations the Commission considers desirable.
AN HISTORICAL PERSPECTIVE
THE SPIRIT AND INTENT
“. . . as long as the sun rises
and the rivers flow . . .”
Preface: A Statement of Principles
I Under existing Constitutional arrangements, Canada is a party to Indian treaties, and is obligated to ensure that their provisions are protected, and that all written and unwritten obligations under such treaties are fully discharged Our rights are based on the various treaties and agreements signed since the Proclamation of 1763.
II In carrying out its treaty obligations, Canada has a duty to recognize the rules of interpretation which apply to international treaties, as is done with respect to Indian treaties in the U.S.A.
III Treaty rights and obligations must be established as an integral part of Canada’s Constitution, and be subject to amendment only with the consent of the Indian Nations concerned.
IV Unfulfilled treaty provisions and land entitlements must be met promptly, and in a manner which enhances the land base and economic potential of Indian peoples, in keeping with the original spirit of treaties.
V Agreements, in the form of comprehensive claims settlements which have the effect of extinguishing titles to Indian lands and resources, and terminating the collective rights and special status of Indian peoples, must be suspended forthwith.
VI One fundamental principle which is inherent in Indian treaties is the right to self-determination and self- government. A joint Indian/Federal Commission on Indian Self-Government should be established to explore and recommend ways in which this right can be guaranteed under the Constitution without jeopardizing our special rights or special status as Indian peoples.
Patriation of the Canadian Constitution on April 18, 1982, may be viewed by future historians as the most critical cross- road in the history of the Indian Nations of Canada.
Insofar as aboriginal and treaty rights are concerned, the main effect of the new Constitution appears to be the fact that our rights are singled out for special “identification and definition” at the First Ministers Conference. However, this is not the place, nor do we have the time during a two-day meeting, to address the many complex issues that must be clarified when we speak of aboriginal and treaty rights.
Before meaningful negotiations and discussion can occur, we need to reach a common understanding of what these rights mean to the Treaty Indian people of Canada.
We call ourselves the First Nations because we are the direct descendants of the original Indian tribes and nations who the Great Spirit placed here on this great island that we now call North America. Our economic, military and political participa- tion was crucial to the historical evolution and progress of immigrant settlement across this great island. There was an urgent need to re-affirm and establish peaceful relations between Great Britain and the Indian Nations following the defeat of France in 1760. This diplomatic understanding was set down in the Royal Proclamation of October 7, 1763.
(i) Proclamation of 1763
Perhaps it would be useful to summarize our understanding of this historic event because it is so fundamental to our existing aboriginal and treaty rights.
First and foremost, the British Crown recognized the position and role of Indian Nations in any future developments in North America, our Great Island.
The Indian Nations were not to be disturbed in the possession of our hunting grounds and homelands. To ensure peaceful relations, the territorial sovereignty of Indian Nations was not to be violated until the lands were yielded or surrendered to the Crown.
The Proclamation reflected the British concern of taking an active role in protecting Indian peoples from unscrupulous settlers and traders, and consequently, trading was regulated through licences.
The Proclamation, therefore, clearly is an unequivocal recognition of aboriginal title, as well as an acknowledgement that as Indian Nations, we have the capacity and right to manage our own affairs. In issuing the Proclamation, the Crown established strict limits on the behaviour of British citizens. It did not attempt to exercise any jurisdiction whatsoever over Indian Nations.*
In essence, the Royal Proclamation is a charter which recognizes the collective rights and special status of Indian Nations. It is the fundamental law for Canada which adds context and substance to Indian treaties. It is the rationale for Section 91(24) of the Constitution which links the Indian Nations with the Crown in a direct relationship, and which should be maintained in the future on a government-to-government basis.
* The proclamation states, for example, “…we do, with the advice of our Privy Council, strictly enjoin and require that no private person do presume to make any purchase from the said Indians.”
Nor does the Proclamation recognize the right of chiefs to alienate lands, but rather the agreement had to be made “at some public meeting or assembly of the said Indians.”
Referring to distant lands not yet settled, the Proclamation says, “We do hereby strictly forbid on pain of our displeasure all our loving subjects from making any purchases whatever, or taking possession of any lands above reserved to the Indians…”
Arising from this fundamental statement of principles, the Crown entered into treaty agreements with the various Indian Nations inhabiting this great island of North America.
Therefore, we hold a dual role here at this First Ministers meeting–first as the original, or first aboriginal occupiers of this continent; and secondly, because our forefathers entered into sacred covenants, the treaties, with the British Crown and these agreements cannot be broken unilaterally by the Canadian Government.
So, if we aspire to achieve the primary purpose of this meeting, and presumably, subsequent meetings on identifying and defining aboriginal and treaty rights, we must reach back into the past; back to the negotiating principles set down in the Proclamation of 1763 and agree upon the Spirit and Intent of the subsequent treaties.
Those Indian Nations that signed treaties believed they were entering into a sacred covenant with the Crown. A treaty, from an Indian perspective, is a mutually acceptable “living arrangement,” which enables both parties to maintain and respect each others differences, while sharing the wealth of a bountiful land. Indian Nations were not informed that treaty provisions . would be reinterpreted to suit concepts such as “the letter of the law” and “lawful obligations” which could be invoked later to justify broken promises.
(ii) Indian Treaties
The treaties made subsequent to the Royal Proclamation of 1763 (and there were several hundred such agreements) clearly provide for the fundamental rights to hunt, fish, trap and gather on our territorial grounds. And in exchange for the
peaceful occupation of Indian land, the Crown made promises to provide for the health, education, training, economic assistance protection, and freedom to pursue our traditional ways and beliefs, and general welfare and being of the Indian peoples.
The diminishment and undermining of these rights has arisen from government legislation and court interpretations. The general result has been a narrowing of our rights rather than a respect for and honouring of our treaty rights. The amended Constitution of Canada, as it now stands, does not appear to – alter in any way the right of Parliament to pass laws which can over-ride the provision of treaties. At the same time, it seems that provincial laws of general application will continue to apply to Indian people but provincial legislatures cannot annul the provisions of treaties.
By 1929, Ottawa and Alberta had worked out a mutually- acceptable arrangement for the management of the province’s resources, which was embodied in a Resource Transfer Agreement. Because this agreement entailed a Constitutional amendment, the British Parliament gave it final approval. This approval was given on condition that Canada “fulfill its obligations under the Treaties with the Indians of the Province,” and that “the said Indians shall have the right, which the Province hereby assures them, of hunting, trapping, and fishing game and fish at all seasons of the year on all unoccupied Crown lands, and on any other lands to which the said Indians may have a right of access.”1
1. Similar agreements were made and treaty obligations were recognized in Manitoba, Saskatchewan, and parts of British Columbia.
The effect of the 1930 Constitutional amendment (as affirmed in an opinion rendered by Lord Justice Kerr in Britain in the Royal Courts of Justice on January 28, 1982) is that “the 1930 Act seems to recognize that the Crown had subsisting obligations to the Indians under the Treaties. That is why it was necessary to have the agreements confirmed by the Parliament of the United Kingdom with the assent of the Queen.”
As a result of the Constitutional amendments approved in April, 1982, the Parliament of the United Kingdom no longer retains any residual legal responsibilities to ensure that the provisions of Indian treaties are maintained. Since patriation, the British courts have ruled that the Crown is “separate and divisible” and that the Crown in Canada is now the sole arbiter of treaty rights.
(iii) International Rules of Interpretation
The Indian Nations of Canada believe that international rules of interpretation should apply to Indian treaties. It was in this tradition that the Crown undertook to negotiate treaties with Indian Nations in the first instance.
In exercising its treaty-making prerogatives, the Crown in fact continued to recognize the “attributes of sovereignty” of Indian Nations. This means that prior to the down-grading of treaties by the Canadian Government:
– Indian Nations were recognized as politically organized and territorially-rooted peoples, and were dealt with by treaties derived from international law and arrived at by diplomatic processes;
– treaties did not attempt to influence or shape the internal affairs of Indian Nations. This was done later by statute (such as the Indian Act) and by bureaucratic interventions (i.e., by each succeeding Federal administration);
– because of the inter-governmental nature of treaty transactions, and especially in the case of the numbered Western treaties, the signators were Federal representatives of the British Crown, rather than provinces or regdonal authorities which under the B.N.A. Act had no power to enter into treaties.
In its proper international context, therefore, the word “treaty” is applicable to any agreement between nations. This is the essential and fundamental concept which should now be reflected in Canada’s Constitution.
A treaty with an Indian Nation describes a solemn compact and possesses the same essential qualities as a contract between individuals. To be valid, it implies mutual assent and a common understanding of the matters on which agreement has been reached. A treaty cannot be valid if it operates on the basis of what one of the parties understands it to mean. It must always be what both parties understood to be the matters agreed upon, and what in fact was the agreement of the parties concerning the matters now in dispute. This fundamental understanding should apply to treaties with Indian Nations.
A treaty with an Indian Nation is to be interpreted generally as are statutes. The Supreme Court of the United States, for example, has ruled that in the absence of expressed language, statutes should not be construed to act retroactively or to affect contracts (or treaties) entered into prior to the passage of such statutes. This interpretation should apply to treaties with Indian Nations.
It is also generally recognized in international usage that verbal promises and undertakings, preceding the final signatures on a written treaty, are considered as being an integral part of the contract. Claims commissions, therefore, have and do exercise the right to examine carefully all prior negotiations between contracting parties in order to determine the true meaning and intent of the language of the treaty itself. This application should apply to treaties with Indian Nations.
Similarly, according to established convention, treaty stipulations cannot be deferred, modified, or impaired by the action of one party without the assent of the other. Similarly, a court has no right to rule on a treaty at the request of one of the parties without the presence of the other. This practice should also apply to treaties with Indian Nations.
It is also an international rule that one party to a treaty has no right to establish a usage or interpretation which the other party is compelled to accept. In instances, moreover, where there are two versions of a treaty, e.g., in English and in Cree, the rules should be that the courts are bound to adopt a version which is in harmony with both parties In instances, moreover, where two parties to a treaty agree
that one can exercise special rights, e.g., the hunting of game birds at all seasons, it is improper according to international practice for one of the parties, i.e., Canada, to enter into a treaty with a third party which has the effect of negating the original obligation, e.g., the Migratory Birds Convention. This respect for treaty obligations should also apply to treaties with Indian Nations.
(iv) Treaties in the United States
In the United States, Indian Nations enjoy what can be described as “internal sovereignty” in their respective jurisdictions. Historically, as in Canada, the U.S.A. dealt with many of the Indian Nations as independent sovereignties with whom formal treaties and agreements were made. (The U.S.A. continued with the British tradition it inherited from being part of the colonies governed by the Crown which made the Royal Proclamation.) Unlike Canada, however, treaties in the U.S.A. are ascribed the same dignity as treaties with foreign nations, and the rules of interpretation are derived from international practice as outlined previously. This I is a view which has been repeatedly confirmed by courts in the U.S.A., and never successfully challenged.
In the U.S.A., the Constitution recognizes as part of the supreme law of the land treaties made with Indian Nations. For example, the Supreme Court has ruled with respect to the status of Indian treaties that “…the Constitution declares a treaty to be the supreme law of the land.”
Generally speaking, it has also been held by U.S. courts that the international rules of treaty interpretation will also be applicable to Indian treaties. Thus, an Indian treaty, like a foreign treaty, can be modified only by mutual consent. Although Congress still assumes the power in theory to enact legislation in conflict with Indian treaties, in practice this doctrine is qualified by further court decisions which, in one instance, ruled that “…title to land granted to an Indian by treaty cannot be divested by any subsequent action of the lessor, Congress, or the Executive Department.”
A cardinal rule in the interpretation of Indian treaties in the U.S.A. is that any ambiguities or unclear provisions must be resolved in favour of the Indians. As a result of this provision, Indian Nations have gained ownership of mineral resources on their lands, even though those resources were not known to exist at the time that treaties were signed.
In summary, therefore, Indian treaties in the U.S.A. are subject to the same rules of interpretation that are accorded international treaties among sovereign nations. At the same time, Indian treaties are protected by the Constitution, which gives them precedence over regular statutes. Unlike the situation in Canada, Indian treaty rights, both written and unwritten, are afforded a much higher degree of protection.
(v) Treaties in Canada
Barring contradictory Federal statutes, Indian treaties represent legally enforceable obligations, a fact which was affirmed by Lord Denning in his opinion last year. Unfortunately, there are no clear legal guidelines or precedents up to this point in Canada which would show the extent to which treaty obligations are actually enforceable. Neither is there any basis in law yet which would determine the kind of compensation that should be accorded for broken treaty obligations.
While Canadian courts have shown a certain predisposition to “uphold the honour of the Sovereign” by interpreting treaties in favour of the Indians, this practice has not been consistent. The problem may be that, so far, Canadian courts have tended to apply rules of interpretation developed in other areas of legal practice, rather than to draw from the comprehensive case law that applies to international treaties, and which should govern the relationship between Indian Nations and the Crown.
The amended Constitution of Canada, as it now stands, does not appear to alter in any way the previous status of Indian treaties. As before, Parliament can still pass laws which can override the provisions of treaties. At the same time, provincial laws of general application (i.e., those which do not single out Indians for special treatment) would continue to be considered to apply to Indians. Treaties as such remain outside the competence of provincial legislation.
The Federal Government has a clear and unequivocal obligation to insure that the rights and guarantees, which are both explicit and implicit in the treaties, and which were solemnly endorsed by representatives of the Crown, can make a good beginning by restoring to treaties with Indian Nations the rules of inter- pretation vhich applied originally, and by according these
treaties their proper status as Constitutional documents. Canada can do no less if it regards itself as a civilized state.
The First Ministers Conference is a unique opportunity for Canada’s leaders to redress the wrongs that have arisen in the past and to recapture in full the intent and spirit of the treaties. Canada will not have achieved its full potential and promise as a federation until our Indian Nations are given their rightful place in the Constitution.
We are confident that as we approach the Constitutional conference table we will not be going there alone. The Creator who has put us here will be with us. We are sure that the Great Spirit will be at our side during these difficult times. He will give us understanding, patience, strength, courage, and wisdom as we make plans for the future of our people.
The Great Spirit created us for a purpose and placed us on this great island. We are the Great Spirit’s people, and there shall always be Indian people on this great island. The Great Spirit has been good and kind to us. In the past, the Great Spirit has guided our forefathers. Today, we, the descendants of a great people, the original peoples of this great island, still believe in the Creator, and we shall go forward as the Great Spirit’s people.