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1. BASIC THEORIES OF LAW:
ARTICLES:
International Law and the Public/Private Distribution
-CAN’T FIND IT!
The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System. by David M. Tanovich (2008)
INTRODUCTION
-It is fair to say that some groups such as women and gays and lesbians can point to a number of significant victories ranging from the right of reproductive choice to the right to same-sex marriage. Can the same be said of racial injustice in the criminal justice system?
-Thesis: while there is reason to be optimistic about the possibilities for future reform, the Charter has, to date, had very little impact on racial injustice in Canada.
-We continue to incarcerate Aboriginals and African Canadians at alarming rates,3 racial profiling at our borders and in our streets continues to flourish,4 and the federal government continues to propose legislation that will further entrench the problem.
-Racial justice has not had a chance to grow over the last 25 years because there has been a significant failure of trial and appellate lawyers to engage in race talk in the courts and a failure of the judiciary to adopt appropriate critical race standards when invited to do so.
-The discussion is not meant to criticize or to lay blame but rather to show just how many opportunities we have had to make meaningful reform in this area over the life of the Charter. The message is one of hope for what is possible with the appropriate calibration and imagination.
THE UTILITY OF USING LITIGATION TO ADDRESS RACIAL INJUSTICE IN THE CRIMINAL JUSTICE SYSTEM
-Oppression is far too deeply rooted, the argument goes, to expect a document focused on individual rights and White middle-class judges to make any meaningful structural change.7 And while it is true that there have been significant Charter victories for some marginalized groups, these critics would likely respond that they are largely symbolic in nature, resulting in little or no real change.
-The idea that the democratic or the legislative process will bring anti-racist change to the criminal justice system is sheer folly. There is no evidence over the last decade that it will ever occur given the increased politicization of crime and unconscious nature of systemic
racism.
-As Professor Stuart has noted, “[p]oliticians of all stripes have been unable to resist the political expediency of pandering to the perceived need to toughen penal responses. There are no votes in being soft on crime.”
-In theory, the Charter should have a significant impact.
-This is especially true with respect to racial injustice in the criminal justice system because of the inexorable ties between the rights and freedoms guaranteed under the Charter and the criminal justice system.
-The legal rights in sections 7-15 and the remedial provision that is section 24 are the most litigated Charter rights and the litigation is occurring in the criminal context because of access and motivation. As a general rule, accused have access to the courts to launch a Charter challenge by virtue of access to state-funded legal counsel. And, of course, one would expect that accused are motivated to argue all live issues.
-This is why it is often said that criminal accused act as surrogate litigants to ensure that civil liberties and human rights are respected by the state.
-Indeed, as a result of the racialized litigants who were successful in R. v. Khan, R. v. Brown, R. v. Campbell21 and R. v. Nguyen, we are beginning to see, at least in the context of racial profiling, a greater number of human rights and civil cases where individuals not found with contraband are challenging the conduct of the police. Substantial damages and systemic remedies have been imposed in successful cases.
-Moreover, while systemic racism is present in all social systems, one can reasonably argue that some of the most harmful and lasting effects of racial injustice are caused by the criminal justice system. The collateral effects of over-incarceration and constant surveillance (e.g., racial profiling) on racialized communities are enormous and now well documented.24 They include physical and severe psychological harm (in some cases death), isolation, alienation and mistrust, behaviour changes, breakdown of or damage to family and social networks, and labour market exclusion.
-Indeed, in many ways, colonialism, slavery and segregation are now reproduced through both of these modern-day systems of control and incapacitation.
-There is no question that other legal and extra-legal strategies are necessary in order to ensure implementation of the changes and to fill in the gaps when litigation fails.
-Anti-racist training for all criminal justice actors, the creation of monitoring systems, the creation of more anti-racist actors such as Gladue workers (i.e., those who prepare sentencing reports for Aboriginal offenders), the appointment of more Aboriginal and racialized judges, greater funding for community programs, community mobilization and political lobbying are all examples of strategies that can work together with litigation.
THE PROBLEM IS NOT WITH THE CHARTER BUT WITH THOSE WHO ARGUE AND INTERPRET IT
1. Adjudication and the Failure to Act
-Narrow approaches to judicial review and lack of judicial imagination have played a role in limiting the impact of Charter litigation on racial injustice.
-In a number of key cases addressing issues such as bail, jury selection and racial profiling, courts have refused to adopt critical race standards or arguments when they were advanced:
participation of black and other racialized people on trial juries appear to be the citizenship qualification and the database used to list the names from which jurors are selected” and that “citizenship restriction for jurors seems particularly anomalous since no such restriction applies to justices of the peace, lawyers, or judges, all of whom are familiar with community standards.”
-Nor did the Court consider the Commission’s recommendation that “... the Juries Act be amended to permit landed immigrants to serve as jurors if they have lived in Canada for three years and are otherwise eligible.”
-The Court also did not consider the broader section 15(1) argument that there is a miscarriage of justice any time a key element of the trial process is implicated in racial discrimination.
-Relying on its earlier decision in R. v. Church of Scientology of Toronto, the Court of Appeal held that the accused had no standing to vindicate the rights of the jurors. The Court also declined to decide whether his rights had been breached because the issue was raised on appeal for the first time and, in the Court’s view, an insufficient evidentiary record existed.
-What is more troubling perhaps is that the language used by the Court suggests that it only recognized a jurisdiction to review the exercise of race-based peremptory challenges because it was Crown conduct that was involved.
-Justice Sharpe, for the Court, held:
An important part of the jury selection process is the right of both
the Crown and the defence to exercise peremptory challenges. The
very essence of a peremptory challenge is that its exercise requires no
justification or explanation. ...
. . . . .
There is little authority on the extent to which a court can review
the exercise of a peremptory challenge by the Crown. While I do not
think the circumstances of the present call for this court’s intervention,
I would not want these reasons to be read as eliminating the possibility,
as there may well be instances in which it would be appropriate for a
court to do so. There are two important legal principles that lead me to
that view. First is the well-established principle of our law that the Crown
bears a particular responsibility in conducting a criminal prosecution
... It is not appropriate for Crown counsel to seek a conviction at all
costs. ...
. . . . .
The second principle that constrains the discretionary powers of
the Crown is that the Crown must exercise the discretion accorded to it
in conformity to Charter principles and values. ...
2. Hostile Adjudication
-In a number of cases, trial judges have been or appeared hostile when asked to adjudicate a race issue.
-Sometimes the hostility can be implied from the reasoning employed by the Court to dismiss the argument. Other times, the disdain of the trial judge can be implied from the manner in which he or she controls the proceedings. And, in some cases, it is more direct.
-These instances of judicial reluctance and hostility certainly tend to confirm the theory that the composition of the judiciary and inherent conservatism of judicial review are some of the biggest hurdles in using litigation as a political tool of change.
-There is no question that increasing the diversity of the bench is one of the most pressing issues facing the justice system and that it will have a big impact on increasing the cultural competence of the judiciary.
-As for judicial conservatism, while the cases discussed earlier are very troubling, it may still be premature to reach any conclusions given that our courts are not, generally speaking, being asked to develop critical race standards or adjudicate race cases with any regularity.
3. The Sounds of Trial Silence
-With respect to litigation, there has been a large-scale failure of trial lawyers to raise race once critical race standards have been established by the courts. The most cogent evidence of this is the small number of racial profiling cases that have been litigated.
-R v Parks [1993] established a number of propositions about the nature of racial bias that are now capable of being judicially noted.
-They include:
Racism, and in particular anti-black racism, is a part of our community’s
psyche. A significant segment of our community holds overtly racist
views. A much larger segment subconsciously operates on the basis of
negative racial stereotypes. Furthermore, our institutions, including
the criminal justice system, reflect and perpetuate those negative
stereotypes. ...
The criminal trial milieu may also accentuate the role of racial
bias in the decision-making process. Anti-black attitudes may connect
blacks with crime and acts of violence. A juror with such attitudes who
hears evidence describing a black accused as a drug dealer involved in
an act of violence may regard his attitudes as having been validated by
the evidence. That juror may then readily give effect to his or her
preconceived negative attitudes towards blacks without regard to the
evidence and legal principles ..
-As Binnie J. observed in R v Spence [2005],
“Parks show[s] that a black accused has reason to fear that some members of the ... community may be wrongly influenced by the colour of his or her skin.”
-A similar observation was made in R. v. Williams [1998] in relation to Aboriginals.
-Justice McLachlin, as she then was, for the Court held
“[r]acism against aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity.”
-In other words, it is open for counsel to develop an argument that systemic racism and stereotyping is a relevant factor to take into account when assessing the admissibility of
character evidence and criminal record in a case involving a racialized accused.
-In other words, it is possible to argue for the creation of a “race shield” provision much like the rape shield provision that operates in sexual assault cases to prevent unwarranted and damaging stereotypes from infecting the criminal trial
-Why are trial lawyers not raising race when it is appropriate to do so?
-While the perception of judicial hostility is an easy scapegoat for
many lawyers.
-With respect to “not seeing the issue”, this occurs because, for the most part, Whites do not see themselves as a race or everyday conduct as the product of White privilege.
-As Professor Coker so aptly puts it:
The third problem for confronting white complacency (or encouragement)
of race disparities in the criminal justice is the invisibility (to whites)
of white privilege. Whites seldom think of themselves through the lens of
race; whiteness is invisible to most whites. Rather, whites see themselves
and other whites as individuals. Because they cannot see the privilege
that protects them from police maltreatment and suspicion, they have
difficulty believing that such treatment is not in some way invited or
provoked when it happens to others
4. The Sounds of Appellate Silence
-On a number of occasions, appellate lawyers have also failed to raise the issue of race on appeal.
-For example, no argument was made in R. v. Law [2002], despite uncontradicted evidence from one of the officers that amounted to racial profiling.
-The recent case of R. v. Harris [2007] provides a good example of where racial profiling could have been raised on appeal for the first time.
-In Harris, the officer stopped a vehicle for a purported improper turn with Harris, an African Canadian, in the front passenger seat.96. The officer asked Harris for identification. While Harris was not wearing a seatbelt, the trial judge concluded, based on the officer’s testimony, that the purpose behind the request for identification was to conduct a Canadian Police Information Centre (“CPIC”) check. The check was to determine, in his words, “whether persons were on probation or bail, or whether they were under some ‘level of surveillance’”. The officer testified that this was a routine practice.
-When looked at with the proper social context lens of racial profiling, these facts cried out for a finding of racially biased policing. It is rare that the circumstantial evidence of heightened scrutiny will be stronger.
-The officer’s testimony that he always asked passengers for identification in order to conduct a CPIC check during a routine traffic stop could reasonably have been rejected.
-It is simply not credible and not consistent with the conduct of a reasonable police officer.
-Alternatively, and even more troubling, is that it may in fact be true because the officer stops a disproportionately high number of racialized drivers. Either way, it was testimony that was not strong enough to rebut the circumstantial evidence, especially bearing in mind that the standard of proof is on a balance of probabilities.
-While appellate lawyers may be constrained in alleging racial profiling for the first time on appeal in the absence of a fresh evidence application, they face no such impediment in raising race in other contexts for the first time on appeal.
-Similarly, when assessing the seriousness of a Charter breach under section 24(2), an appellate court can consider, especially when it is deciding whether to exclude afresh, the extent to which the impugned conduct will have a disproportionate impact on racialized communities and the measures taken by the police to address systemic problems including racial profiling. This could be done even in the absence of a specific finding of racial profiling
-BUT, it should be noted that simply pointing out the disproportionate impact without also raising the sufficiency of the measures taken by the police to address the problem
may not be enough.
CONCLUSION
-This refusal of judges to act and lack of race consciousness by lawyers are having a direct impact on the ability of the Charter to remedy racial injustice.
-We can see this by examining two of the bright spots: race-based challenges for cause and the recognition of the existence of racial profiling by our courts.
-With respect to challenges for cause, there is no question that R. v. Parks stands out as one of the most significant Charter race cases.
-The cases that followed such as R. v. Williams and R. v. Koh have established that Aboriginal and all racialized accused are entitled to challenge prospective jurors for racial bias as of right under section 638(1)(b) of the Criminal Code.
-But the utility of Parks and Williams has been limited by the failure of the courts to permit a more sophisticated manner of questioning.
-Judging the impartiality of a prospective juror on his or her yes or no answer to a question which simply asks whether the juror believes that he or she can be impartial in a case with a Black or Aboriginal accused is not sufficient.
- It is time to relitigate this issue.
-Similarly, to permit lawyers to use race-based peremptory challenges and not to give accused standing to argue the section 15(1) rights of prospective jurors is simply to close one’s eyes and further enable racism in the justice system.
-With respect to racial profiling, while it is true that the recent decisions from our courts and human rights tribunals are significant, the standards they have imposed are having little effect, in part, because of other sections 8, 9 and 24(2) cases which limit their application.
-For example, section 9 is only triggered upon a detention and the courts have applied a narrow approach to street-level detentions with little consideration of the relevance of race on the issue of psychological detention.
-As the Supreme Court held in R. v. Mann [2004],
“... the police cannot be said to ‘detain’, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview.”
-Hopefully, the Court will reconsider its approach when it decides R. v. Grant[2006].
-It would do well to consider the reasoned judgments in R. v. Griffiths [2003]; R. v. Pinto [2003]; and, R. v. Savory [2002], all of which employed a critical race perspective on this issue.
-These cases recognize that it is unreasonable to conclude that an African Canadian or Aboriginal would feel free to walk away from the police given the history of police violence and racial profiling in their communities.
-Moreover, section 8 can only be advanced where the individual has standing (i.e., reasonable expectation of privacy) and again courts have adopted a narrow approach to this issue as we saw in R. v. Belnavis [1997]
-This issue is again before the Supreme Court in R. v. Brown [2006] in the context of the use of dogs to sniff for drugs. This is a critical issue because the use of dogs and other tactics such as securing consent to search by Operation Pipeline/Jetway/Convoy, a RCMP drug interdiction program, are having a disproportionate impact on racialized individuals.
-And finally, as noted earlier, under section 24(2), the failure to raise race has too easily allowed courts to rely on good faith and the seriousness of gun and drug offences in not excluding evidence obtained in violation of the Charter.
-This is what is happening in the Ontario Court of Appeal in cases like R. v. Grant [2006] R. v. Harris [2007] and now R. v. B. (L.) [2007]
-As Moldaver J. put it in R. v. B. (L.):
This case involves a loaded handgun in the possession of a student
on school property. Conduct of that nature is unacceptable without
exception. It is something that Canadians will not tolerate. It conjures
up images of horror and anguish the likes of which few could have
imagined twenty-five years ago when the Charter first came to being.
Sadly, in recent times, such images have become all too common --
children left dead and dying; families overcome by grief and sorrow;
communities left reeling in shock and disbelief.
That is the backdrop of this case and in my view, it provides the
context within which the conduct of the police should be measured ...
-While the effects of gun violence are indeed tragic, so too are the consequences of racial profiling. That too was a backdrop of the case, one that was not raised and so not considered by the Court.
-It is interesting that the Court was prepared to take account of the effects of gun violence, even though there was no evidence before it, but not of racial profiling in Toronto because “no such allegations have been made”.
-And so, as these examples illustrate, engaging in race talk and developing critical race standards are critical because colour-blind due process standards are working disproportionately to the disadvantage of racialized groups.
-That is the future of Charter litigation in this country.
-There is no question that what lies ahead will be difficult. There is every reason, however, to be optimistic. Lawyers and judges are committed to the pursuit of justice and with a greater understanding of what needs to be done and commitment to getting it done, we may begin to see significant change.
_________________________________________________________________________________________
2. SOURCES OF LAW:
ARTICLES:
Bijuralism and Harmonization: Genesis. Department of Justice Canada.
-SEE PRINT OUT!
A Hesitant Embrace: Baker and the Application of International Law in Canadian Courts in David Dyzenhaus (ed.), The Unity of Public Law, Hart Publishing 2004
-GOOGLE BOOKS!
5. RELATIONSHIP OF ABORIGINAL PEOPLES TO THE CANADIAN STATE: SELECTED TOPICS:
ARTICLES:
The Crown's Fiduciary Relationship with Aboriginal Peoples. By Mary C. Hurley. (2002)
Background Canada’s Aboriginal peoples have always held a unique legal and constitutional position. In the Royal Proclamation of 1763, often referred to as the “Magna Carta of Indian Rights,” the colonial British Crown found it just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.
Emphasizing the Crown’s concern with the “great Frauds and Abuses” committed by purchasers of Aboriginal lands, the Royal Proclamation reserved to the Crown the exclusive right to negotiate cessions (giving up) of Aboriginal title. A century later, subsection 91(24) of the Constitution Act, 1867 granted the federal Parliament legislative authority over “Indians, and Lands Reserved for the Indians.” Surrenders and designations of reserve land under the Indian Act, the principal vehicle for the exercise of federal jurisdiction over “status Indians” since 1876, reflect the “protective” provisions of the Royal Proclamation. In practice, pre- and post-Confederation federal governments negotiated surrenders of vast Aboriginal territories in major treaties concluded throughout the 19th and early 20th centuries, largely in Ontario and the western provinces excluding British Columbia. Finally, section 35 of the Constitution Act, 1982 recognizes and affirms “existing aboriginal and treaty rights” of Canada’s Aboriginal peoples, defined as including the “Indian, Inuit and Métis peoples.”
In R. v. Van der Peet (1996), the Supreme Court of Canada commented that
the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact … above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status. (emphasis in original)
Judicial Interpretation Hence, a “fiduciary relationship” is one in which someone in a position of trust has “rights and powers which he is bound to exercise for the benefit” of another. Such relationships include those between trustees and their beneficiaries, solicitors and their clients, and so forth.
The Supreme Court of Canada has adapted these largely private law concepts to the context of Crown-Aboriginal relations. The Court’s landmark 1984 decision Guerin v. R. (1984) established that the relationship could or did entail legal consequences.
Guerin found that:
Sparrow determined that:
“[i]n light of the Crown’s unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights … in the absence of some explicit guidance.”
In Delgamuukw v. B.C.(1997), the Court ruled that the degree to which the fiduciary duty requires scrutiny of infringing measures varies according to the nature of the Aboriginal right at issue.
In the context of Aboriginal title, the Court expanded in particular upon the Crown’s obligation to consult affected Aboriginal group(s), finding that the consultation
“must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue.”
Delgamuukwalso stated that under section 35,
“the Crown is under a moral, if not a legal, duty to enter into and conduct … negotiations [with Aboriginal peoples] in good faith.”
In Wewaykum Indian Band v. Canada (2002), a non-section 35 decision, the Court sought to further clarify certain aspects of the Crown-Aboriginal fiduciary relationship and the scope of obligations arising under it, noting the post-Guerin “flood of ‘fiduciary duty’ claims … across a whole spectrum of possible complaints.”
The Wewaykum ruling confirmed that:
Extra-Judicial Considerations The 1996 Report of the Royal Commission on Aboriginal Peoples (RCAP) saw the fiduciary relationship as originating in treaties and other historical links, describing it in conceptual terms that differ from those expressed by the courts:
Because of this relationship, the Crown acts as the protector of the sovereignty of Aboriginal peoples within Canada and as guarantor of their Aboriginal and treaty rights. This fiduciary relationship is a fundamental feature of the constitution of Canada.
The Report emphasized that, although the provinces and territories are also bound by fiduciary obligation(s), a position that appears consistent with the emerging jurisprudence in the area, Parliament has primary jurisdiction in relation to Aboriginal peoples under subsection 91(24) of the Constitution Act, 1867:
The federal government cannot, consistent with its fiduciary obligation, sit on its hands in its own jurisdiction while treaties are broken, Aboriginal autonomy is undermined, and Aboriginal lands are destroyed.
The RCAP was critical of past and current governments’ performance of their fiduciary role; many recommendations reflect its view that government needs to fulfil this role more positively through a variety of measures, including broader recognition of the Aboriginal peoples to whom the duty is owed.
The federal government has not issued a comprehensive official policy in this area. Its approach identifies two principal categories of fiduciary obligations for government managers to take into account, based on the Guerin and Sparrow decisions.
àGuerin-type obligations arise in situations where the Crown has a duty to act in the interests of an Aboriginal group and has discretionary power in the matter (for example, in connection with the surrender of reserve land).
àSparrow-type obligations arise when the Crown must respect constitutionally protected Aboriginal or treaty rights and justify interferences with those rights.
Federal guidelines also underscore the honour of the Crown as an additional key element to be maintained in relations with Aboriginal peoples. The government document differentiates between the fiduciary relationship and fiduciary obligations, such that some Crown activities affecting Aboriginal peoples that fall within the fiduciary relationship would not necessarily give rise to legally enforceable fiduciary obligations.
The Wewaykum decision appears to endorse a similar position.
Explicit or implicit governmental acknowledgement of the Crown-Aboriginal fiduciary relationship may be found in, for example:
Important questions related to implementation of the Crown-Aboriginal fiduciary relationship remain. The application of Supreme Court of Canada decisions confirming the fiduciary relationship has yet to be fully defined in a number of contexts, for example, land claim and self-government negotiations. Similarly, the standard(s) for government conduct that will uphold “the honour of the Crown” in various situations require clarification.
Aboriginal groups and government are frequently at odds in litigation, negotiation, and policy fora, as to the scope of governmental responsibility that flows from the fiduciary relationship. Aboriginal parties generally support a broader view of Crown obligations than the government appears prepared to endorse. Assembly of First Nations’ resolutions attest to unresolved issues regarding many aspects of the current relationship. In April 2000, then National Chief of the Assembly of First Nations Phil Fontaine observed that “DIAND, like the Government of Canada itself, suffers from a schizophrenic personality. It holds and administers fiduciary obligations to our peoples at the same time as it must observe its political obligations to the rest of Canada. … It advocates one moment on our behalf and in the next moment, through the Justice Department, against us.” As the Supreme Court of Canada’s Wewaykum ruling commented, the Crown is not an ordinary fiduciary and may be required to consider multiple interests in some contexts.
Supreme Court of Canada decisions confirm that the fiduciary relationship does have legal and constitutional scope. The concept itself and obligations arising from it are still being developed.
Highlights from the Report of the Royal Commission on Aboriginal Peoples: People to People, Nation to Nation (1996) Note to Readers Each of its five volumes presents the Commission's thoughts and recommendations on a range of interconnected issues. Chapters are devoted to major topics such as treaties, economic development, health, housing, Métis perspec-tives, and the North. Volume 5 draws all the recommendations together in an integrated agenda for change. The five volumes are entitled
1. Looking Forward, Looking Back (pg.13)
2. Restructuring the Relationship (pg.)
3. Gathering Strength (pg.)
4. Perspectives and Realities (pg. )
5. Renewal: A Twenty-Year Commitment (pg. )
A Word From Commissioners Canada is a test case for a grand notion - the notion that dissimilar peoples can share lands, resources, power and dreams while respecting and sustaining their differences. The story of Canada is the story of many such peoples, trying and failing and trying again, to live together in peace and harmony.
But there cannot be peace or harmony unless there is justice. It was to help restore justice to the relationship between Aboriginal and non-Aboriginal people in Canada, and to propose practical solutions to stubborn problems, that the Royal Commission on Aboriginal Peoples was established.
In 1991, four Aboriginal and three non-Aboriginal commissioners were appointed to investigate the issues and advise the government on their findings.
We directed our consultations to one over-riding question: What are the foundations of a fair and honourable relationship between the Aboriginal and non-Aboriginal people of Canada?
There can be no peace or harmony unless there is justice.
We held 178 days of public hearings, visited 96 communities, consulted dozens of experts, commissioned scores of research studies, reviewed numerous past inquiries and reports. Our central conclusion can be summarized simply: The main policy direction, pursued for more than 150 years, first by colonial then by Canadian governments, has been wrong.
Successive governments have tried - sometimes intentionally, sometimes in ignorance - to absorb Aboriginal people into Canadian society, thus eliminating them as distinct peoples. Policies pursued over the decades have undermined - and almost erased - Aboriginal cultures and identities.
This is assimilation. It is a denial of the principles of peace, harmony and justice for which this country stands - and it has failed. Aboriginal peoples remain proudly different.
Assimilation policies failed because Aboriginal people have the secret of cultural survival. They have an enduring sense of themselves as peoples with a unique heritage and the right to cultural continuity.
This is what drives them when they blockade roads, protest at military bases and occupy sacred grounds. This is why they resist pressure to merge into Euro-Canadian society - a form of cultural suicide urged upon them in the name of 'equality' and 'modernization'.
Assimilation policies have done great damage, leaving a legacy of brokenness affecting Aboriginal individuals, families and communities. The damage has been equally serious to the spirit of Canada - the spirit of generosity and mutual accommodation in which Canadians take pride.
Yet the damage is not beyond repair. The key is to reverse the assumptions of assimilation that still shape and constrain Aboriginal life chances - despite some worthy reforms in the administration of Aboriginal affairs.
To bring about this fundamental change, Canadians need to understand that Aboriginal peoples are nations. That is, they are political and cultural groups with values and lifeways distinct from those of other Canadians. They lived as nations - highly centralized, loosely federated, or small and clan-based - for thousands of years before the arrival of Europeans. As nations, they forged trade and military alliances among themselves and with the new arrivals. To this day, Aboriginal people's sense of confidence and well-being as individuals remains tied to the strength of their nations. Only as members of restored nations can they reach their potential in the twenty-first century.
Let us be clear, however. To say that Aboriginal peoples are nations is not to say that they are nation-states seeking independence from Canada. They are collectivities with a long shared history, a right to govern themselves and, in general, a strong desire to do so in partnership with Canada.
The Commission's report is an account...
...of the relationship between Aboriginal and non-Aboriginal people that is a central facet of Canada's heritage.
...of the distortion of that relationship over time.
...of the terrible consequences of distortion for Aboriginal people - loss of lands, power and self-respect.
1) Looking Forward Looking Back After some 500 years of a relationship that has swung from partnership to domination, from mutual respect and co-operation to paternalism and attempted assimilation, Canada must now work out fair and lasting terms of coexistence with Aboriginal people.
The Starting Point
The Commission has identified four compelling reasons to do so:
1) Canada's claim to be a fair and enlightened society depends on it.
2) The life chances of Aboriginal people, which are still shamefully low, must be improved.
3) Negotiation, as conducted under the current rules, has proved unequal to the task of settling grievances.
4) Continued failure may well lead to violence.
Canada as a Fair and Enlightened Society A careful reading of history shows that Canada was founded on a series of bargains with Aboriginal peoples - bargains this country has never fully honoured. Treaties between Aboriginal and non-Aboriginal governments were agreements to share the land.
They were replaced by policies intended to
...remove Aboriginal people from their homelands.
...suppress Aboriginal nations and their governments.
...undermine Aboriginal cultures.
...stifle Aboriginal identity.
It is now time to acknowledge the truth and begin to rebuild the relationship among peoples on the basis of honesty, mutual respect and fair sharing. The image of Canada in the world and at home demands no less.
The foundations of a fair and equitable relationship were laid in our early interaction.
The Life Chances of Aboriginal People The third volume of our report, Gathering Strength, probes social conditions among Aboriginal people.
Aboriginal people's living standards have improved in the past 50 years - but they do not come close to those of non-Aboriginal people:
They seek a range of remedies for these injustices, but most of all, they seek control of their lives.
Failed Negotiations A relationship as complex as the one between Aboriginal and non-Aboriginal people is necessarily a matter of negotiation. But the current climate of negotiation is too often rife with conflict and confrontation, accusation and anger.
Aboriginal negotiators fight for authority and resources sufficient to rebuild their societies and exercise self-government - as a matter of right, not privilege. Non-Aboriginal negotiators strive to protect the authority and resources of Canadian governments and look on transfers to Aboriginal communities as privileges they have bestowed.
Frequent failure to come to a meeting of minds has led to bitterness and mistrust among Aboriginal people, resentment and apathy among non-Aboriginal people.
In our report, we recommend four principles for a renewed relationship - to restore a positive climate at the negotiating table - and a new political framework for negotiations (We discuss the principles at the end of this chapter and the new framework in Chapter 2)
Canada can be a diverse, exciting, productive,
caring country...a country where every child has
an equal opportunity to grow up full of hope
and enthusiasm for the future.
Martha Flaherty
President, Pauktuutit Inuit Women's Organization
Risk of Violence Aboriginal people have made it clear, in words and deeds, that they will no longer sit quietly by, waiting for their grievances to be heard and their rights restored. Despite their long history of peacefulness, some leaders fear that violence is in the wind.
What Aboriginal people need is straightforward, if not simple:
federal government. We are getting sick and tired of
Commissions. We are getting sick and tired of being
analyzed... We want to see action.
Norman Evans
Pacific Metis Federation
The Ghosts of History Every Canadian will gain if we escape the impasse that breeds confrontation between Aboriginal and non-Aboriginal people across barricades, real or symbolic. But the barricades will not fall until we understand how they were built.
Studying the past tells us who we are and where we came from. It often reveals a cache of secrets that some people are striving to keep hidden and others are striving to tell. In this case, it helps explain how the tensions between Aboriginal and non-Aboriginal people came to be, and why they are so hard to resolve.
Canadians know little about the peaceful and co-operative relationship that grew up between First Peoples and the first European visitors in the early years of contact. They know even less about how it changed, over the centuries, into something less honourable. In our report, we examine that history in some detail, for its ghosts haunt us still.
The ghosts take the form of dishonoured treaties, theft of Aboriginal lands, suppression of Aboriginal cultures, abduction of Aboriginal children, impoverishment and disempowerment of Aboriginal peoples. Yet at the beginning, no one could have predicted these results, for the theme of early relations was, for the most part, co-operation.
The relationship between Aboriginal and non-Aboriginal people evolved through four stages:
Stage 1:
Separate Worlds Before 1500, Aboriginal societies in the Americas and non-Aboriginal societies in Europe developed along separate paths, in ignorance of one another. The variety in their languages, cultures and social traditions was enormous. Yet on both sides of the Atlantic, independent peoples with evolving systems of government - though smaller and simpler than the nations and governments we know today - flourished and grew.
America, separated from Europe by a wide ocean, was inhabited
by a distinct people, divided into separate nations, independent
of each other and the rest of the world, having institutions of
their own, and governing themselves by their own laws. It is
difficult to comprehend... that the discovery of either by the
other should give the discoverer rights in the country discovered
which annulled the previous rights of its ancient possessors.
Chief Justice John Marshall
United States Supreme Court
Worcester v. Georgia (1832)
In the southeastern region of North America, the Cherokee were organized into a confederacy of some 30 cities - the greatest of which was nearly as large as imperial London when English explorers first set eyes on it. Further south, in Central and South America, Indigenous peoples had carved grand empires out of the mountains and jungles long before Cortez arrived.
The forging and maintaining of these confederacies are evidence of
great political skill...
Bruce Trigger referring to the Huron [Wendat] Confederacy in
The Children of Aataentsic
In northern North America, Aboriginal cultures were shaped by environment and the evolution of technology:
Whereas it is just and reasonable, and essential to Our Interests and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom we are connected and who live under Our Protection, should not be molested or disturbed in the Possession of such parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved for them, or any of them, as their Hunting Grounds... Royal Proclamation of 1763
Stage 2: Nation-to-Nation Relations Encounters between Aboriginal and non-Aboriginal people began to increase in number and complexity in the 1500s. Early contact unfolded roughly as follows:
Cautious co-operation, not conflict, was the theme of this period, which lasted into the eighteenth or nineteenth century, depending on the region. For the most part, Aboriginal and non-Aboriginal people saw each other as separate, distinct and independent. Each was in charge of its own affairs. Each could negotiate its own military alliances, its own trade agreements, its own best deals with the others.
Co-operation was formalized in two important ways:
European traditions of treaty making date to Roman times, but in the seventeenth century, they took on new importance. They became the means for the newborn states of Europe to control their bickering and warfare - indeed, to end it for long periods. Treaties were a way of recognizing each other's independence and sovereignty and a mark of mutual respect.
In the colonies that became Canada, the need for treaties was soon apparent. The land was vast, and the colonists were few in number. They feared the might of the Aboriginal nations surrounding them. Colonial powers were fighting wars for trade and dominance all over the continent. They needed alliances with Indian nations.
The British colonial government's approach to the treaties was schizophrenic. By signing, British authorities appeared to recognize the nationhood of Aboriginal peoples and their equality as nations. But they also expected First Nations to acknowledge the authority of the monarch and, increasingly, to cede large tracts of land to British control - for settlement and to protect it from seizure by other European powers or by the United States.
Over several hundred years, treaty making has been used to keep the peace and share the wealth of Canada.
The Aboriginal view of the treaties was very different. They believed what the king's men told them, that the marks scratched on parchment captured the essence of their talks. They were angered and dismayed to discover later that what had been pledged in words, leader to leader, was not recorded accurately. They accepted the monarch, but only as a kind of kin figure, a distant 'protector' who could be called on to safeguard their interests and enforce treaty agreements. They had no notion of giving up their land, a concept foreign to Aboriginal cultures.
In my language, there is no word for 'surrender'. There is
no word. I cannot describe 'surrender' to you in my language,
so how do you expect my people to [have] put their X on
'surrender'?
Chief Francois Paulette
Treaty 8 Tribal Council
Yellowknife, Northwest Territories
The Two Row Wampum, a belt commemorating a 1613 treaty between the Mohawk and the Dutch, captures the understanding of Aboriginal peoples - treaties were statements of peace, friendship, sharing or alliance, not submission or surrender:
A bed of white wampum symbolizes the purity of the agreement. There are two rows of purple, and those two rows represent the spirit of our ancestors. Three beads of wampum separating the two purple rows symbolize peace, friendship and respect. The two rows of purple are two vessels travelling down the same river together. One, a birch bark canoe, is for the Indian people, their laws, their customs and their ways. The other, a ship, is for the white people and their laws, their customs and their ways. We shall each travel the river together, side by side, but in our own boat. Neither of us will try to steer the other's vessel.
The Royal Proclamation The Royal Proclamation of 1763 was a defining document in the relationship between Aboriginal and non-Aboriginal people in North America. Issued in the name of the king, the proclamation summarized the rules that were to govern British dealings with Aboriginal people - especially in relation to the key question of land.
It is a complex legal document, but the central messages of the proclamation are clear in its preamble. Aboriginal people were not to be "molested or disturbed" on their lands. Transactions involving Aboriginal land were to be negotiated properly between the Crown and "assemblies of Indians". Aboriginal lands were to be acquired only by fair dealing: treaty, or purchase by the Crown.
The proclamation portrays Indian nations as autonomous political entities, living under the protection of the Crown but retaining their own internal political authority. It walks a fine line between safeguarding the rights of Aboriginal peoples and establishing a process to permit British settlement. It finds a balance in an arrangement allowing Aboriginal and non-Aboriginal people to divide and share sovereign rights to the lands that are now Canada.
More than a hundred years later, in 1867, the arrangement we know as Confederation would also allow for power sharing among diverse peoples and governments. But the first confederal bargain was with First Peoples.
Stage 3: Respect Gives Way to Domination In the 1800s, the relationship between Aboriginal and non-Aboriginal people began to tilt on its foundation of rough equality. The number of settlers was swelling, and so was their power. As they dominated the land, so they came to dominate its original inhabitants. They gained power as a result of four changes that were transforming the country:
1. The population mix was shifting to favour the settlers. Immigration continued to add to their numbers, while disease and poverty continued to diminish Aboriginal nations. By 1812, immigrants outnumbered Indigenous people in Upper Canada by a factor of ten to one.
2. The fur trade was dying, and with it the old economic partnership between traders and trappers. The new economy was based on timber, minerals, agriculture. It needed land - not labour - from Aboriginal people, who began to be seen as 'impediments to progress' instead of valued partners.
3. Colonial governments in Upper and Lower Canada no longer needed Aboriginal nations as military allies. The British had defeated all competitors north of the 49th parallel. South of it, the United States had fought for self-government and won. The continent was at peace.
4. An ideology proclaiming European superiority over all other peoples of the earth was taking hold. It provided a rationale for policies of domination and assimilation, which slowly replaced partnership in the North American colonies. These policies increased in number and bitter effect on Aboriginal people over many years and several generations.
History has not been written yet from the Indian point of view.
Violet Soosay
Montana First Nation community
Hobbema, Alberta
Ironically, the transformation from respectful coexistence to domination by non-Aboriginal laws and institutions began with the main instruments of the partnership: the treaties and the Royal Proclamation of 1763. These documents offered Aboriginal people not only peace and friendship, respect and rough equality, but also 'protection'.
Protection was the leading edge of domination. At first, it meant preservation of Aboriginal lands and cultural integrity from encroachment by settlers. Later, it meant 'assistance', a code word implying encouragement to stop being Aboriginal and merge into the settler society.
Protection took the form of compulsory education, economic adjustment programs, social and political control by federal agents, and much more. These policies, combined with missionary efforts to civilize and convert Indigenous people, tore wide holes in Aboriginal cultures, autonomy and feelings of self-worth.
[The Indian Act] has...deprived us of our independence, our dignity,
our self-respect and our responsibility.
Kaherine June Delisle
Kanien'kehaka First Nation
Kahnawake, Quebec
Policies of Domination and Assimilation No Canadian acquainted with the policies of domination and assimilation wonders why Aboriginal people distrust the good intentions of non-Aboriginal people and their governments today.
but for tomorrow, and not only for you but for your children
born and unborn. And the promises we make will be carried out
as long as the sun shines above and the water flows in the ocean.
Alexander Morris, Lieutenant Governor of Manitoba and the
North-West Territories
Address to the Cree and Salteaux, Fort Qu'Appelle (1874)
But British and Canadian policy toward Métis people was dismissive. They were not 'Indians', and they were not legitimate settlers. The usual practice was to declare them 'squatters' and edge them off the land they were farming when preferred settlers moved in.
Under Louis Riel, the Métis of the Red River Valley struggled for their own land and government. They were promised both in the Manitoba Act of 1870, but those promises were later denied. Many moved further west and north, where they again fought for land and political recognition. In the spring of 1885 their forces were crushed at Batoche by a military expedition sent by Ottawa. The people were dispersed again, and to this day, their claims for a secure land base and their own forms of government have not been settled.
Our Indian legislation generally rests on the principle
that the Aborigines are to be kept in a condition of tutelage
and treated as wards or children of the state... It is
clearly our wisdom and our duty, through education and other
means, to prepare him for a higher civilization by encouraging
him to assume the privileges and responsibilities of full
citizenship.
Annual Report of the Department of the Interior (1876)
To induce First Nations to sign, colonial negotiators continued to assure them that treaty provisions were not simply agreed, but guaranteed to them - for as long as the sun shone and the rivers flowed.
Stage 4: Renewal and Renegotiation Policies of domination and assimilation battered Aboriginal institutions, sometimes to the point of collapse. Poverty, ill health and social disorganization grew worse. Aboriginal people struggled for survival as individuals, their nationhood erased from the public mind and almost forgotten by themselves.
Resistance to assimilation grew weak, but it never died away. In the fourth stage of the relationship, it caught fire and began to grow into a political movement. One stimulus was the federal government's White Paper on Indian policy, issued in 1969.
The fact is that when the settlers came, the Indians
were there, organized in societies and occupying the land
as their forefathers had done for centuries.
This is what Indian title means...
Supreme Court of Canada
Calder v. Attorney General
of British Columbia (1973)
The White Paper proposed to abolish the Indian Act and all that remained of the special relationship between Aboriginal people and Canada - offering instead what it termed equality. First Nations were nearly unanimous in their rejection. They saw this imposed form of 'equality' as a coffin for their collective identities - the end of their existence as distinct peoples. Together with with Inuit and Métis, they began realize the full significance of their survival in the face of sustained efforts to assimilate them. They began to see their struggle as part of a worldwide human rights movement of Indigenous peoples. They began to piece together the legal case for their continuity as peoples - nations within Canada - and to speak out about it.
They studied their history and found evidence confirming that they have rights arising from the spirit and intent of their treaties and the Royal Proclamation of 1763. They took heart from decisions of Canadian courts, most since 1971, affirming their special relationship with the Crown and their unique interest in their traditional lands. They set about beginning to rebuild their communities and their nations with new-found purpose.
The relationship between the government and Aboriginals
is trust-like rather than adversarial, and... contemporary
recognition and affirmation of Aboriginal rights must be
defined in light of this historic relationship.
Supreme Court of Canada
R. v. Sparrow (1990)
The strong opposition of Aboriginal people to the White Paper's invitation to join mainstream society took non-Aboriginal people by surprise. The question of who Aboriginal people are and what their place is in Canada became central to national debate.
A dozen years of intense political struggle by Aboriginal people, including appeals to the Queen and the British Parliament, produced an historic breakthrough. "Existing Aboriginal and treaty rights" were recognized in the Constitution Act, 1982.
This set the stage for profound change in the relationship among the peoples of Canada, a change that most governments have nevertheless found difficult to embrace.
The Way Forward The policies of the past have failed to bring peace and harmony to the relationship between Aboriginal peoples and other Canadians. Equally, they have failed to bring contentment or prosperity to Aboriginal people.
In poll after poll, Canadians have said that they want to see justice done for Aboriginal people, but they have not known how. In the following chapters, we outline a powerful set of interlinked ideas for moving forward.
In the years since the White Paper, Canadian governments have been prodded into giving Aboriginal communities more local control. They have included more Aboriginal people in decision making and handed over bits and pieces of the administrative apparatus that continues to shape Aboriginal lives.
But governments have so far refused to recognize the continuity of Aboriginal nations and the need to permit their decolonization at last. By their actions, if not their words, governments continue to block Aboriginal nations from assuming the broad powers of governance that would permit them to fashion their own institutions and work out their own solutions to social, economic and political problems. It is this refusal that effectively blocks the way forward.
The new partnership we envision is much more than a political or institutional one. It must be a heartfelt commitment among peoples to live together in peace, harmony and mutual support.
For this kind of commitment to emerge from the current climate of tension and distrust, it must be founded in visionary principles. It must also have practical mechanisms to resolve accumulated disputes and regulate the daily workings of the relationship.
We propose four principles as the basis for a renewed relationship: recognition, respect, sharing and responsibility
We propose four principles as the basis of a renewed relationship.
1. Recognition
The principle of mutual recognition calls on non-Aboriginal Canadians to recognize that Aboriginal people are the original inhabitants and caretakers of this land and have distinctive rights and responsibilities flowing from that status. It calls on Aboriginal people to accept that non-Aboriginal people are also of this land now, by birth and by adoption, with strong ties of love and loyalty. It requires both sides to acknowledge and relate to one another as partners, respecting each other's laws and institutions and co-operating for mutual benefit.
2. Respect
The principle of respect calls on all Canadians to create a climate of positive mutual regard between and among peoples. Respect provides a bulwark against attempts by one partner to dominate or rule over another. Respect for the unique rights and status of First Peoples, and for each Aboriginal person as an individual with a valuable culture and heritage, needs to become part of Canada's national character.
3. Sharing
The principle of sharing calls for the giving and receiving of benefits in fair measure. It is the basis on which Canada was founded, for if Aboriginal peoples had been unwilling to share what they had and what they knew about the land, many of the newcomers would not have lived to prosper. The principle of sharing is central to the treaties and central to the possibility of real equality among the peoples of Canada in the future.
4. Responsibility
Responsibility is the hallmark of a mature relationship. Partners in such a relationship must be accountable for the promises they have made, accountable for behaving honourably, and accountable for the impact of their actions on the well-being of the other. Because we do and always will share the land, the best interests of Aboriginal and non-Aboriginal people will be served if we act with the highest standards of responsibility, honesty and good faith toward one another.
The Six Nations of the Iroquois Confederacy have described
the spirit of the relationship as they see it in the image
of a silver covenant chain. "Silver is sturdy and does not
easily break," they say. "It does not rust and deteriorate
with time. However, it does become tarnished. So when we come
together, we must polish the chain, time and again, to
restore our friendship to its original brightness."
Chief Jacob E. Thomas
Cayuga First Nation
Haudenosaunee (Iroquois) Confederacy
We propose that treaties be the mechanism for turning principles into practice. Over several hundred years, treaty making has been used to keep the peace and share the wealth of Canada. Existing treaties between Aboriginal and non-Aboriginal people, however dusty from disuse, contain specific terms that even now help define the rights and responsibilities of the signatories toward one another.
We maintain that new and renewed treaties can be used to give substance to the four principles of a just relationship. How they can be used is explained in Chapter 2.
2) Restructuring the Relationship To restore the essence of the early relationship between Aboriginal and settler societies described in Chapter 1, the elements of partnership must be recreated in modern form. The starting point for this transformation is recognition of Aboriginal nationhood.
Aboriginal Peoples as Nations The arguments for recognizing that Aboriginal peoples are nations spring from the past and the present. They were nations when they forged military and trade alliances with European nations. They were nations when they signed treaties to share their lands and resources. And they are nations today - in their coherence, their distinctiveness and their understanding of themselves.
Recognition of Aboriginal nationhood poses no threat to Canada or its political and territorial integrity. Aboriginal nations have generally sought coexistence, co-operation and harmony in their relations with other peoples. What they seek from Canada now is their rightful place as partners in the Canadian federation.
This chapter shows how the foundations of Aboriginal nationhood were undone and how they can be rebuilt.
The Case for Self-Government Aboriginal people trace their existence and their systems of government back as far as memory and oral history extend. They say that the ultimate source of their right to be self-governing is the Creator. The Creator placed each nation on its own land and gave the people the responsibility of caring for the land - and one another - until the end of time.
Three other sources of the right of self-government apply to Aboriginal peoples:
We believe Aboriginal people must be recognized as partners in the complex arrangements that make up Canada. Indeed, we hold that Aboriginal governments are one of three orders of government in Canada - federal, provincial/territorial, and Aboriginal. The three orders are autonomous within their own spheres of jurisdiction, thus sharing the sovereignty of Canada as a whole. Aboriginal governments are not like municipal governments, which exercise powers delegated from provincial and territorial governments.
Shared sovereignty is an important feature of Canadian federalism. It permitted the early partnership between Aboriginal and non-Aboriginal people, and later it permitted the union of provinces that became Canada.
Canadian governments are coming gradually to accept the idea of shared sovereignty and Aboriginal self-government. But they have been loath to hand over the full range of powers needed by genuinely self-governing nations or the resources needed to make self-government a success.
Rebuilding Aboriginal Nations We have concluded that the right of self-government cannot reasonably be exercised by small, separate communities, whether First Nations, Inuit or Métis. It should be exercised by groups of a certain size - groups with a claim to the term 'nation'.
The problem is that the historical Aboriginal nations were undermined by disease, relocations and the full array of assimilationist government policies. They were fragmented into bands, reserves and small settlements. Only some operate as collectivities now. They will have to reconstruct themselves as nations.
Self-government is a right they never surrendered and that they want to exercise once more
We believe strongly that membership in Aboriginal nations should not be defined by race. Aboriginal nations are political communities, often comprising people of mixed background and heritage. Their bonds are those of culture and identity, not blood. Their unity comes from their shared history and their strong sense of themselves as peoples.
The work of reconstructing their nations poses great challenges for Aboriginal people. They will need to
To support the rebuilding of Aboriginal nations and shift from paternalistic policies to partnership relations, we propose a bold starting place: a new Royal Proclamation, issued by the Monarch as Canada's head of state and guardian of the rights of Aboriginal peoples.
A new proclamation would signal, in dramatic terms, a new day for Aboriginal people. Its all-important preamble should contain these elements:
Traditionally, there were checks and balances that were functional and appropriate for the Anishnabek. The leaders were servants to the people and upheld the values that were inherent in the community. Accountability was not a goal or aim of the system; rather it was embedded in the very make-up of the system.
Union of Ontario Indians
Brief to the Commission (1993)
Of particular importance among these laws is an Aboriginal Nations Recognition and Government Act to give the government of Canada a mechanism for acknowledging established Aboriginal nations once their processes of internal reconstruction and institution building are complete.
To prepare for the new start, the federal government will need to undergo some reorganization of its own:
Models and Powers of Self-Government Aboriginal visions of self-government are as varied as their traditions, circumstances and aspirations. Scores of detailed proposals for self-government have been drawn up by Aboriginal peoples across Canada. The Commission identified three basic models, each with many possible variations. These models are all realistic and workable in the framework of the Canadian federation.
Nation Government Aboriginal people with a strong sense of shared identity and an exclusive territorial base will probably opt for the 'nation' model of self-government. Inside their boundaries, nation governments would exercise a wide range of powers and authority. They might choose to incorporate elements of traditional governance. They could choose a loose federation among regions or communities, or a more centralized form of government. They will need to find ways of representing the interests of non-Aboriginal residents in decision making.
Public Government In some regions, Aboriginal people are the majority in territory they share with non-Aboriginal people - for example, in the more northerly parts of the country. Existing agreements (such as the Nunavut Agreement) signal that Aboriginal nations in that situation will probably opt for the 'public' model of self-government. In this model, all residents participate equally in the functions of government, regardless of their heritage. Structures and processes of government would likely be similar to those of other Canadian governments - but with adaptations to reflect Aboriginal traditions and protect Aboriginal cultures.
The Teslin Tlingit Nation in the Yukon are building from the clan to the nation through the establishment of several branches of government: a general council, an executive council, an elders council and a justice council. While these councils are not duplicates of traditional Tlingit institutions, they do reflect the importance of the clans in their composition and in their consensual decision-making style.
Community of Interest Government In urban centres, Aboriginal people from many nations form a minority of the population. They are not 'nations' in the way we define it, but they want a measure of self-government nevertheless - especially in relation to education, health care, economic development, and protection of their cultures. Urban Aboriginal governments could operate effectively within municipal boundaries, with voluntary membership and powers delegated from Aboriginal nation governments and/or provincial governments.
In our judgement, the right of Aboriginal governments to exercise authority over all matters relating to the good government and welfare of Aboriginal peoples and their territories is an existing Aboriginal right and is therefore recognized and affirmed by the constitution.
This governing authority has two parts: a 'core' and a 'periphery'. The core of Aboriginal jurisdiction consists of matters that are of vital concern to the life and welfare of a particular Aboriginal people, its culture and identity - but do not have a major impact on neighbouring communities and are not otherwise the object of transcendant federal or provincial interest.
Legally, nothing prevents Aboriginal governments from taking charge of core issues in their communities and nations tomorrow. Practically, of course, they are tied into existing program arrangements with other governments. Before they can reasonably be expected to take charge, agreements about new funding formulas and many other issues are needed.
Matters on the periphery of Aboriginal jurisdiction - matters that affect the lands, resources and other interests of neighbouring people - must be subject to agreements with other governments. We have in mind such occasionally controversial issues as pollution control, road and rail access, wildlife protection, certain aspects of the justice system and so on - issues that will require shared or co-operative management arrangements.
Financing for Self-Government The financing of Aboriginal governments will require new approaches - approaches that acknowledge that much of the wealth of this country comes from lands and resources to which, in many cases, Aboriginal people have a legitimate claim.
If self-government is accompanied by fair redistribution of lands and resources - as we argue it must be - Aboriginal governments can become largely self-financing in the long term through greater access to what are called 'own-source revenues'. Own-source revenues flow to governments through familiar channels - taxation, investment, borrowing, business fees and royalties, public corporation revenues, proceeds from lotteries and gaming, and so on. These sources of revenue can and should be made available to Aboriginal governments.
It is especially important for Aboriginal governments to develop their own taxation systems. Most Aboriginal people pay taxes now, but to provincial and federal governments. We are recommending that those who live on Aboriginal nation territories pay taxes primarily to their own governments. Those who live off Aboriginal territory would continue to pay taxes to federal and provincial governments.
It will take time for Aboriginal nations to develop own-source revenues. Even then, transfer payments from other governments will be needed - but to a lesser extent. We expect that treaties and other agreements among governments will free transfer payments from some of the restrictions on their use that now frustrate Aboriginal people.
In the old days, we had a tradition of caring and sharing. If a man was sick or injured, the chief would delegate others to hunt for him and provide fire wood [for his family]. We redistributed our wealth for the good of all. And that is just what any good system of taxation is supposed to do.
Elder Ernie Crowe
quoted by Chief Clarence Jules
Kamloops First Nation community
Aboriginal nations, like the provinces, will have unequal access to resources and economic opportunities, so their level of prosperity will vary. We expect that nations that are well-off will help those that are not. Transfer payments from other governments will help to equalize the levels of service they can provide.
We also expect that, as they develop, Aboriginal nations will use their resources to take fiscal responsibility for their own governments and services. Transfer payments can be structured to encourage this, as now happens between the federal and provincial governments.
Redistributing Lands and Resources All over the world and throughout history, collective control of lands and resources has been the key to prosperity and the basis of the powerful idea of 'home' that gives a people their common identity. Most Aboriginal people retain an intensely spiritual connection to the land of their ancestors - one that involves both continuity and stewardship. It is hardly surprising, then, that the most intense conflicts between Aboriginal and non-Aboriginal people centre on the use and control of land.
Across Canada, Aboriginal people are pressing for an expanded share - a fair share - of lands and resources that were once theirs alone. They were promised as much by the Crown of England and its successor, the government of Canada. Some Aboriginal nations signed treaties only because of that promise.
In fact, though, except in northern Quebec and the territories, the amount of land allocated for use by Aboriginal people is extremely small. Aboriginal lands south of the 60th parallel (mainly Indian reserves) make up less than one-half of one per cent of the Canadian land mass. By contrast, in the United States (excluding Alaska), where Aboriginal people make up a far smaller portion of the population, they hold three per cent of the land (see map).
Land reserved for Aboriginal people was steadily whittled away after its original allocation. Almost two-thirds of it has 'disappeared' by various means since Confederation. In some cases, the government failed to deliver as much land as specified in a treaty. In other cases, it expropriated or sold reserved land, rarely with First Nations as willing vendors. Once in a while, outright fraud took place. Even when First Nations were able to keep hold of reserved land, the government sometimes sold its resources to outsiders.
These disappearances took place despite the solemn duty of the Crown to manage lands and resources for the benefit of Aboriginal people.
Similarly, Métis people, who believed they had won the right to their own lands and resources in the bargain with Ottawa that led to the Manitoba Act, were driven further and further west - and ultimately dispersed as a people - by the largely fraudulent manner in which that bargain was administered.
Several other land policy issues have festered over the years:
We find ourselves without any real home in this, our own country... Our
people are fined and imprisoned for...using the same game and fish which
we were told would always be ours for food. Gradually we are becoming
regarded as trespassers over a large portion of this, our country.
Chiefs of the Shuswap
Okanagan and Couteau (Thompson) Tribes of British Columbia
Letter to Prime Minister Sir Wilfrid Laurier (1910)
Treaty agreements did not end the conflict. Indeed, it became sharper as settlers took up residence next door to Aboriginal people, who had not foreseen how deeply settlers' ways would clash with their own. They thought that the Crown's treaty promises would be enough to ensure their survival and independence. They were wrong.
The conflict became more deeply entrenched when the Constitution Act, 1867 - drafted without discussion with Aboriginal people - assigned legal ownership of all Crown lands to the provinces.
If what Aboriginal peoples thought they had won had been delivered - a reasonable share of lands and resources for their exclusive use, protection for their traditional economic activities, resource revenues from shared lands, and support for their participation in the new economy being shaped by the settlers - the position of Aboriginal peoples in Canada today would be very different. They would be major land owners. Most Aboriginal nations would likely be economically self-reliant. Some would be prosperous.
Some Aboriginal nations have gone to court to force governments to recognize their rights to land and resources, and some have been successful. A series of court decisions has confirmed that Aboriginal peoples have more than a strong moral case for redress on land and resource issues - they have legal rights.
The law of Aboriginal title establishes three things:
Lands and resources are owing to Aboriginal peoples for both contemporary and historical reasons. Lands and resources are the essential substructure of political, economic and social development. To rebuild their nations, Aboriginal people need
of the accommodation between the Crown and the First [Peoples]. We have gone to the Courts in our own defence.
Chief Edward John
First Nations Summit of British Columbia
Fair Sharing: A Plan For many years, Canada has had a land claims process. Its purpose is to allow First Nations to pursue either a specific claim - for example, the return of reserve land improperly sold off by the government - or a comprehensive claim to an allotment of the nation's traditional land in a case where it has no treaty or other settlement with Canada.
The existing land claims settlement process is deeply flawed:
1. Lands selected from traditional territories that would belong exclusively to Aboriginal nations and be under their sole control.
2. Other lands in their traditional territories that would belong jointly to Aboriginal and non-Aboriginal governments and be the object of shared management arrangements.
3. Land that would belong to and remain under the control of the Crown but to which Aboriginal people would have special rights, such as a right of access to sacred and historical sites.
We believe the principle of sharing of our homeland [and] its natural
resources is the basis of the treaty arrangements... Accordingly, the
concepts of resource co-management and revenue sharing from the Crown
lands are the proper forms of treaty implementation.
Chief George Fern
Prince Albert Tribal Council
La Ronge, Saskatchewan
The third one would be the largest category of lands.
As a support to the new process, we are recommending establishment of regional treaty commissions and an Aboriginal Lands and Treaties Tribunal.
Regional treaty commissions would facilitate and support treaty negotiations but would not conduct negotiations - this would remain the responsibility of political leaders.
The tribunal would be responsible, first and foremost, for ensuring that treaty negotiations were carried out in good faith and financed fairly. Second, it would ensure that the interests of all parties were protected while treaties were being negotiated. Third, it would rule on discrete, specific claims that are capable of settlement in the short term.
In 1988, the Meadow Lake Tribal Council (mltc) of northwestern Saskatchewan got help from the federal government to buy a 40 per cent share in a struggling pulp mill, NorSask Forest Products, and update the mill's equipment. Help from the provincial government produced a tree-farm licence. The mltc then launched new businesses to do reforestation, logging and road construction. Mltc businesses have since paid $11 million in taxes and saved $10 million in social assistance costs by employing 240 people who would otherwise have been jobless.
The new treaty processes we propose will take time to show results. Steps must be taken in the meantime to provide enough lands and resources to meet Aboriginal nations' immediate needs.
Economic Development Aboriginal people want to make a decent living, to be free of dependence on others, free of the social stigma and sense of personal failure that go with dependence, and free of the debilitating effects of poverty. Economic self-reliance will let them thrive as individuals and as nations and make their new governments a success.
The historical self-sufficiency of Aboriginal people and nations was destroyed in several ways:
Ownership of lands and resources is essential to create income and wealth for Aboriginal individuals and nations. But ownership is not enough. Communities and nations that want to control the wealth available from their resources don't want to leave operation of their economies to outside specialists. The challenge of skills development to meet the demands of both modern and traditional economic activity is just beginning to be met in Aboriginal communities.
Federal, provincial and territorial governments should co-operate to stimulate economic vitality in both the traditional and the modern sector - so that all Aboriginal people have the chance to make a reasonable living, whether as a carver in Cape Dorset, a teacher in Saskatoon, or a part-time trapper and radio technician in Moose Factory.
Recent progress in economic development gives rise to hope for a brighter future. But the challenge of turning pockets of progress into a broad transformation of economic life for Aboriginal people remains immense.
There are only five registered professional foresters and fewer than ten registered professional geologists of Aboriginal ancestry in all of Canada. In a recent discussion paper on social security reform, Human Resources Development Canada estimated that 45 per cent of all new jobs created between 1990 and 2000 will require more than 16 years of education and training
Levers of Economic Change Transforming Aboriginal economies from dependence to self-reliance will not be easy. The greatest boost for most nations will come from access to a fair share of lands and resources.
The results of recent land claims settlements suggest that nations will use their timber, minerals, fish, wildlife and other resources to create jobs, bring in revenue, and lay the foundation of a diversified economy. Access to resources is the key, but increasing the land and resource base is not enough. Other strategies are needed too.
Regaining Control
As things stand, Aboriginal communities are subject to a changing array of economic development programs, most of them managed from distant government offices. They must tailor their ideas for stimulating the economy to program criteria set by external authorities.
We call on federal and provincial governments to enter into long-term development agreements with Aboriginal nations to provide support, advice and stable funding for economic development. Aboriginal nations would design programs, make investment decisions, and be accountable to their people for managing these resources.
Regaining control of economic matters without the human resources and capacity to manage them would spell trouble for Aboriginal nations. They must be helped to develop the personnel and the regional and national institutions they need to invest in and manage businesses in specific sectors - resource extraction industries, agriculture, communications, tourism, and so on.
Business Development Governments have worked with Aboriginal entrepreneurs to help make business development one of the sparks of economic growth in Aboriginal communities. Many have demonstrated their capacity to master a wide range of commercial skills as individual entrepreneurs and as managers of community-owned businesses.
Aboriginal nations have had perhaps their greatest successes through collectively owned enterprises - where shares in the company are held by the community or the nation government on behalf of its members. Through their companies, communities run regional airlines. They are involved in forestry management, silviculture, wood harvesting and processing. They run grocery stores and wholesale food distributing networks, motels, hotels, bowling alleys, golf courses and much more.
Some have had a rough ride - making mistakes, losing investments, sometimes experiencing bankruptcy. But valuable lessons have been learned, and there are now scores of Aboriginal people with the skills and confidence to manage the operations of modern commercial enterprises.
They, and those who would follow in their footsteps, still need support. We recommend that Aboriginal and non-Aboriginal governments work together to develop
in the North, shuddered at this solution, [saying that] it will not create
a long-term economic solution that is acceptable to Inuit, but it will
create a great dependency, where no one will ever get out.
Charlie Evalik
Cambridge Bay, Northwest Territories
Employment The employment problem is immense. More than 80,000 jobs are needed now, just to raise Aboriginal people's employment rate to the overall Canadian rate. Without action, the situation will deteriorate. The Aboriginal population is young: 56 per cent are under 24 years of age, compared with 34 per cent of all Canadians. An additional 225,000 jobs will have to be found in the next 20 years to put them to work.
We propose a sustained effort to increase employment for Aboriginal people, including
Education and Training Public investment in education and training is vital to improve employment prospects for Aboriginal people in the existing job market. There are shortages of trained Aboriginal people in such fields as economics, medecine, engineering, community planning, forestry, wildlife management, geology and agriculture - to name only a few.
Aboriginal nations cannot rebuild their political institutions, manage their economies or staff their social services without trained people. Yet high school and university completion rates are low among Aboriginal youth.
Motivating youth to complete their education is of great importance to the economic future of Aboriginal communities. Youth need a strong foundation in their traditions and proficiency in the skills valued by contemporary society. Those who master these skills and contribute to their communities and nations deserve to be celebrated as the modern equivalents of the great hunters and leaders of the past.
Education and training are discussed in more detail in Chapter 3.
Alternatives to Welfare The need for welfare in Aboriginal communities came with the confiscation of ever expanding tracts of their land. Indigenous people grew poor, malnourished and sick. Many died young. The government chose to provide short-term 'relief' instead of sustained help to rebuild ravaged Aboriginal economies - a choice governments have made over and over again in the last two centuries.
Some years ago, in the Dene community of Fort Franklin in the Northwest Territories, the council decided to use a portion of welfare funds to pay welfare recipients to do much needed work around town: remodelling and repainting public buildings, cleaning public spaces, gathering wood for elders and single mothers. Although these projects had some success in meeting their goals, they were stopped by the funding government when authorities found out that recipients were working for welfare.
By the 1960s, welfare had become available to Aboriginal people as it was to other Canadians. Since then, more and more have become dependent. The rate of welfare dependence is now two to four times higher among Aboriginal people than among Canadians generally. Many speakers at the Commission's public hearings lamented the erosion of self-reliance among peoples once renowned for it, an erosion brought about by the combination of economic ruin and welfare availability.
There may never be enough jobs to go around in Aboriginal communities. Yet social assistance, as now delivered, is not a good way of providing cash income, for it traps recipients in a marginal existence. It may protect against abject poverty, but it can also stifle individual initiative, and it does little to deal with the community conditions that lead to dependence.
We think Aboriginal communities should be able to use the money now earmarked for individual welfare payments as an instrument of broader economic development:
When Aboriginal youth seek employment, we not only have to overcome all
the employment barriers that youth in general face, we also have to deal
with racism in the workplace, both systemic and individual. Very few
employers will even give us the chance we need to prove that we are
capable of performing the job.... When are we going to be treated equally
and fairly by those with whom our ancestors so generously shared our land
and resources?
Gail Daniels
Anishnaabe Oway-Ishi
Toronto, Ontario
Treaties: The Mechanism of Change The Commission proposes a wide-ranging agenda for change to achieve two goals:
Treaties have a long and honourable history as a way of solving disputes between peoples, nations and governments. Although Canada's historical treaties with Aboriginal nations have been ignored and violated over the years, the treaty format is still a powerful way of stating the terms of a relationship.
Treaties have a long and honourable history as a way of solving disputes between peoples, nations and governments.
To see how treaties can be used in the modern context, Canadians need to understand them better. In brief, the historical treaties are:
This will require the fulfilment and renewal of existing treaties and the making of new treaties with Aboriginal peoples who do not have them now.
In our minds, if we are looking towards a future where we can have peace in this land, the mechanism is there, and that is...those relationships of friendship [in our treaties]... That is the foundation we have to begin with.
Charlie Patton
Mohawk Trail Longhouse
Kahnawake, Quebec
Treaty Fulfilment and Renewal Accounts of negotiations leading to the historical treaties are full of stories of miscommunication and cross purposes. This is hardly surprising. Negotiators had no common language, no common frame of reference. Despite profoundly different cultures and world views, they were trying to figure out how to share a world.
Implementation of treaty terms and promises was problematic from the start. As time passed and the balance of power between Aboriginal and non-Aboriginal people shifted, governments were able to ignore terms and promises that no longer suited them. For example,
Treaty renewal is a way of addressing fundamental disagreements between Aboriginal and non-Aboriginal authorities about the accuracy of the treaties and about their real purpose.
Many Aboriginal people say that the written version of treaties fails to reflect crucial verbal agreements reached by negotiators. Further, they say that the treaties are not just records of a deal, but attempts to give shape to the infinitely complex business of sharing a country. They are agreements for living together and thus are living agreements that must be reviewed and reinterpreted periodically in light of their purpose - their 'spirit and intent'.
Non-Aboriginal governments take a much more restrictive view. They argue that the written treaty is the complete treaty and that it should be interpreted literally.
In approaching the terms of a treaty...the honour of the Crown is
always involved, and no appearance of 'sharp dealing' should be sanctioned.
Ontario Court of Appeal
R. v. Taylor and Williams (1981)
The historical evidence is clear on the first point of disagreement: the written treaties often are not a full and fair statement of agreements reached.
On the second point, the Commission has concluded that the treaties should be implemented to reflect their spirit and intent - not just their words, whether spoken or written. The language of yesterday's treaties reflects yesterday's values.
For example, the $5 annual treaty money - a gift commemorating the agreement in Aboriginal eyes, a form of rent for use of the land in European eyes - was a significant sum in its time. Or, to take another example, the promise of a medicine chest for those who signed Treaty 6 was a commitment to provide the best health care available at that time.
What characterizes a treaty is the intention to create obligations...
Once a valid treaty is found to exist, the treaty must be given a just,
broad and liberal construction.
Supreme Court of Canada
R. v. Sioui (1990)
It is deeply self-serving of Canadian authorities to insist on a literal interpretation of such clauses. If the relationship between Aboriginal and non-Aboriginal people is ever to be set right, the underlying intentions of treaty promises - not the letter of outdated terms - must guide their present-day implementation.
To bring about fulfilment and renewal of the historical treaties, we recommend that Canadian governments
We propose a new treaty process to lead the way to reconciliation between Aboriginal and non-Aboriginal people over the next 20 years. An agreed treaty process can be the mechanism for implementing virtually all the recommendations in our report - indeed, it may be the only legitimate way to do so.
The main objectives of a new treaty-making process would be to
It is self-defeating [for the government] to pursue a policy that
supposes the terms of a claims agreement can be fixed for all time. There
can be no acceptable final definition of the compromises that must be made
between societies over succeeding generations. The conclusion of a modern
claims agreement must be seen as a beginning, not an end.
Bernadette Makpah
Nunavut Tunngavik Inc.
To set the stage, we recommend that Parliament declare its support for the treaty relationship in the form of a new Royal Proclamation. By itself, a new proclamation will change nothing; it needs to be backed up by companion legislation setting out guiding principles for the treaty processes and establishing new decision-making bodies, independent of government, to conduct them.
One major piece of companion legislation would be an Aboriginal Treaties Implementation Act with the following provisions:
The treaties require some kind of implementing process, some kind of institutional arrangement that will see that the finer spirit of the treaties is realized, that the relationship is renewed, and that the treaties are respected by all who live in the country.
Tony Hall
University of Lethbridge
Lethbridge, Alberta
Canada can afford to do this. Indeed, Canada cannot afford not to do it, for the cost of maintaining Aboriginal people in a state of dependence and social disorganization - measured in human distress, lost productivity and proliferating government programs - is enormous, as we show in Chapter 5.
The Relationship Restructured In this chapter, we have outlined major steps needed to transform the relationship between Aboriginal people and other Canadians from its present state of tension and failed initiatives to one of co-operation and growing successes. The steps are numerous and may seem daunting. But they are logical, they are progressive, they reinforce each other, and they constitute a workable plan. Let us review them briefly:
Chief Albert Levi
Big Cove First Nation community
Big Cove, New Brunswick
These steps, taken together, have the potential to bring about fundamental change - in the hearts, minds and life experience of Aboriginal people, who have waited so long for justice, and in Canada as a country of fair-minded people. Each step, and the rationale from which it springs, must be accepted and adopted with determination and good will, by Aboriginal and non-Aboriginal people and their leaders.
It can be done.
But it will not work unless Aboriginal people, in their nations and communities and personal lives, see that it does. To do so, they will need to develop and use their full potential as human beings and as citizens of their nations. This significant challenge is the subject of the next chapter.
3) Gathering Strength Aboriginal people endure ill health, run-down and overcrowded housing, polluted water, inadequate schools, poverty and family breakdown at rates found more often in developing countries than in Canada. These conditions are inherently unjust. They also imperil the future of Aboriginal communities and nations.
Many people who spoke to us urged us to consider the human problems facing Aboriginal people holistically - as part of a pattern of negative effects arising from their experience of life under policies of domination and assimilation. This approach helped us identify the key elements in solutions that will work.
Chief Jean-Charles Piétacho
and Sylvie Basile,
Mingan First Nation community
The Circle of Well-Being The elements in the Commission's agenda for fundamental change - self-government, economic self-reliance, a partnership of mutual respect with Canada, and healing in the broadest sense - form a circle of well-being that revolves something like this:
Canada's constitution makes room for Aboriginal people to take charge of these matters right now, if they want to - without waiting for other governments to transfer authority.
But agreements (treaties, accords, settlements) with other governments will ease the way forward, resolving tough political, administrative and financial issues in advance. Aboriginal communities will make more headway with health and social problems if they have the support and co-operation of other governments.
Treaty making takes time. The transition to full control of community affairs by Aboriginal people will take some years. Some will chafe at delay, but the passage of time has some advantages for Aboriginal people, for they are still gathering strength for the tasks ahead. They need more trained people to meet the challenges of self-government and new institutions to put the stamp of aboriginality on social services and their delivery.
As well, they need to work with non-Aboriginal health and social services agencies to transform relations with them. Mainstream services and agencies need to become more welcoming and more sensitive to cultural difference. They need to ensure that all traces of racism are eliminated from policy and practice. And they need to start seeing Aboriginal people as partners in the design, development and delivery of services.
Our recommendations on social and health policy focus on three interlinked objectives:
Well-being flows from balance and harmony among all elements of personal and collective life.
Family is still the central institution in Aboriginal societies. It is only a generation or two since extended kin networks of parents, grandparents and clan members made up virtually the entire social world for Aboriginal people, providing the framework for most of the business of life. Inside the web of family, norms of sharing and mutual aid provided a social safety net for every individual.
Aboriginal families, and the cultures and identities they passed on to their children, were severely disrupted by actions of colonial and Canadian governments. Children in particular were targeted time and again in official strategies to control and assimilate Aboriginal people.
"With the healing in place, we can have self-government. But without the healing, we will have dysfunctional self-government." Jeanette Costello
Counsellor, Kitselas Drug and Alcohol Program
Terrace, British Columbia
Many Aboriginal people told the Commission that the future they wish for - as self-governing, self-reliant nations within Canada - is impossible unless the strong bonds of family that gave individuals and communities their stability are rebuilt.
Services designed and controlled by Aboriginal people can do much to heal the wounds visible in statistics on social dysfunction - family breakdown, suicide and attempted suicide among youth, substance abuse, trouble with the law. To prevent them from recurring, the Aboriginal family must be restored to its traditional role as nurturer of the young and protector of the old, guardian of the culture and safety net for the vulnerable.
"Our Children Are Our Future" Children have a special place in Aboriginal cultures. According to tradition, they are gifts from the spirit world and must be treated well or they will return to that realm.
Failure to protect a child from harm is perhaps the greatest shame that can befall an Aboriginal family. Yet it has happened repeatedly in the last several generations, and it continues to happen today.
Most of our clients...are young, sole support mothers who were very often removed [from their families] as children themselves... And whilethe mother may have been in foster care, the grandmother - I think we all know where she was [as a child]. She was in residential school. So we are into a third generation [of disrupted families] now.
Kenn Richard Executive Director, Native Child and Family Services
Toronto, Ontario
Abuse and family violence are the most dramatic problems, but they are the tip of an iceberg that began to form when Aboriginal communities lost their independent self-determining powers and Aboriginal families were deprived of authority and influence over their children.
The source of social dysfunction we heard most about in public testimony was residential schooling, but inappropriate child welfare policies have also been a persistent and destructive force. The effect of these policies, as applied to Aboriginal children, was to tear more holes in the family web and detach more Aboriginal people from their roots.
Authorities had only one remedy for children thought to be in need of protection - removal from their families. Authorities were not able to alleviate family poverty, fix crumbling houses, or support young parents who had themselves been raised in institutions, without parents as models. They made little or no attempt to place children at risk with members of their kin network or with other Aboriginal families who could help them hold on to their culture and identity.
Child welfare is one of the services that Aboriginal people want most to control for themselves. In 1981, the federal government signed the first agreement authorizing a First Nations agency to deliver child welfare services. Since then, some three dozen Aboriginal agencies have been authorized. They have revised the rules of placement, to recognize the capacity of kin networks to protect Aboriginal children, and emphasized the importance of cultural continuity in placements.
Even so, the well-being of the children is not assured. Aboriginal agencies have inherited many of the problems of the agencies they replaced. They struggle with ill-fitting rules made outside their communities; with levels of family distress and need beyond their limited resources; and with the challenge of finding ways to protect children at risk while respecting extended family networks that resist interference. Not all Aboriginal child welfare agencies have achieved the high standards to which they aspire.
Immediate action of three kinds is needed:
Ending the Cycle of Family Violence Aboriginal people speaking at our public hearings, especially women, were frank about the extent and severe effects of family violence in Aboriginal life. They pointed to the need for improved services, but they said that the best hope lies in restoration of traditional Aboriginal values of respect for women and children and reintegration of women into family, community and nation decision making.
Twenty-four per cent of the respondents to our questionnaire indicated that they know of deaths as a result of Aboriginal family violence, and 54 per cent...know of cases where a woman sustained injury which required medical treatment as a result of family violence but did not seek medical attention out of fear and shame.
Catherine Brooks
Director, Anduhyaun Residence for Women
Toronto, Ontario
The Canadian Panel on Violence Against Women (1993) stated that family violence arises from a fundamental imbalance of power between men and women. This is true for Aboriginal people, too, but this inequality exists within a greater imbalance of power - that between Aboriginal and non-Aboriginal society. In these circumstances, the loss, humiliation, frustration and anger shared by all Aboriginal people can provoke violence in some, as one speaker explained to us:
Aboriginal people who asked the Commission to help end the violence had clear ideas about how it should be done:
Our children are vastly affected by family violence, even when they are not the direct victims. The cost to our children is hidden in their inability to be attentive in schools, in feelings of insecurity and low self-esteem, and in acting out behaviour [including] vandalism, self-abuse, bullying.
Sharon Caudron
Program Director
Women's Resource Centre
Hay River, Northwest Territories
The Urgent Need for Whole Health The health status of Aboriginal people in Canada today is both a tragedy and a crisis. Illness of almost every kind occurs more often among Aboriginal people than among other Canadians.
Aboriginal people urgently need resources to help them reduce infant mortality, tuberculosis, diabetes, heart disease and other illnesses. But they know that curing diseases of the body alone cannot restore well-being. What they are looking for is more fundamental and more transformative.
They are trying to bring balance and vitality to body, mind, emotions and spirit - as ends in themselves and as preconditions for balance and vitality in their societies. In short, they are looking for whole health.
Historical records and archaeological evidence tell us that many of the illnesses prevalent in Europe at the time of first contact were unknown or very rare in the Americas. Infectious diseases, from influenza to tuberculosis, were passed from the newcomers to Indigenous people, with devastating results. Hundreds of thousands sickened and died. In Canada, a population estimated at 500,000 at the time of first contact had plunged to 102,000 by the time of the 1871 census.
More illness care services will not turn the tide.
In the new climate of social responsibility that sparked the growth of public services after the Second World War, health authorities began to take seriously the need for medical care in Aboriginal communities. Today, almost every settlement has at least nursing services available. But despite large sums spent on illness care, Aboriginal people still experience ill health at unacceptable levels. The Commission looked at
Obviously, then, more of the same - more illness care services - will not turn the tide. What is needed is a new strategy for Aboriginal health and healing.
Wellness is a community issue, a national issue, a women's issue... No other [issue] so fundamentally relates to the survival of our people as that of health.
Vice-Chief Tom Iron
Federation of Saskatchewan Indian Nations
Wahpeton, Saskatchewan
Two Traditions of Healing Converge In recent years, Aboriginal people have shown great energy and imagination in tackling health and social problems. They have petitioned for more control of local services, and some have met with at least partial success. Those with partial control are beginning to modify and adapt services to reflect their own values, traditions and priorities - with good results.
Diabetes, hypertension, overweight, poor nutritional status are epidemic among Native people in Canada today.
Elizabeth Palfrey
Keewatin Regional Health Board
Rankin Inlet, Northwest Territories
But Aboriginal people want to make more radical changes in the way health and healing are promoted in their communities. Their main concerns revolve around four themes:
Henry Zoe
Dogrib Treaty 11 Council
Brief to the Commission
The most advanced thinkers in health policy circles today have reached some major conclusions about what makes people well. These 'determinants of health' converge with Aboriginal perspectives on health and healing through several key ideas:
Health policy must assist in dispelling the legacy of poverty, powerlessness and despair in Aboriginal communities. This is the key to whole health for Aboriginal people.
In the past, we were like we were asleep. White people were doing
everything for us. We thought white people knew everything, but we were
wrong. The advice they gave us never worked.
Chief Katie Rich
Davis Inlet
Sheshatshiu, Labrador
A Strategy for Health and Healing Whole health comes from shared prosperity, a clean and safe environment, a sense of control over life circumstances - as well as high quality illness care and healthy lifestyle choices. Better health for Aboriginal people will grow out of the long-term structural changes proposed in Chapter 2.
What outside forces cannot bring about, Aboriginal people can do for themselves.
In the short term, however, prevention, treatment and rehabilitation services have an important contribution. Clearly, they can be improved. The starting place for reform is a commitment from federal, provincial, territorial and Aboriginal governments to build health and healing systems that do four things:
1. Reorganization of existing health and social services into a system of health and healing centres and healing lodges, under Aboriginal control.
2. A crash program over the next 10 years to educate and train Aboriginal people to staff and manage health and social services at all levels, in Aboriginal communities and in mainstream institutions.
3. Adaptation of mainstream services to accommodate Aboriginal people as clients and as full participants in decision making.
4. A community infrastructure program to deal with urgent problems of housing, clean water and waste management.
There are 40 to 50 Aboriginal physicians in Canada. That amounts to 0.1 per cent of all physicians. There are about 300 Aboriginal registered nurses - again, 0.1 per cent of the total.
Health and Healing Centres The idea of community-based centres to develop and deliver integrated health and social services was put forward at our public hearings all over the country.
Health and healing centres can assemble, under one roof, the resources needed to tackle interrelated problems now dealt with typically by separate agencies - from child protection to mental health care. They can deliver medical care, make referrals to specialists, devise and deliver health promotion programs. In short, they can be the hub of health and social services in Aboriginal communities.
The kernel of such a system already exists - nursing stations and other facilities that co-ordinate at least some health and healing services in First Nations and Inuit communities. But not all communities have even the beginnings of a healing centre. In rural Métis settlements and in small towns with a substantial Aboriginal population, there is a virtual vacuum of services designed for, and run by, Aboriginal people. This vacuum needs to be filled.
To complement the work of community-based healing centres, the Commission proposes a network of healing lodges. Healing lodges can fill the acute need for residential treatment for people overwhelmed by social, emotional and spiritual distress. They can take up the issues of psycho-social distress that impair the lives of some Aboriginal people. For example, they could serve
Getting a start on healing centres and healing lodges does not depend on the structural changes in governance and land we talked about in the previous chapter. It does depend on the will to abandon fruitless debates about which level of government is responsible for which services.
The key to better integration of health and social services in Aboriginal communities is an increase in the number of professionals originating from those communities...
Huguette Blouin
Quebec hospitals association
Montreal, Quebec
Human Resources Development No amount of intervention from outsiders, however well meant, will help Aboriginal people achieve well-being. What outside forces cannot bring about, Aboriginal people can do for themselves. They can make the best decisions about the kind of health and healing services that will restore them to whole health - and they can do the work of making healing centres and lodges a success.
Very few Aboriginal people are now practising as doctors, nurses, social workers, nutritionists or psychologists. This is a problem in itself, but the problem goes deeper. Services aimed at whole health need to be culture-based and holistic - integrated across the full range of life problems. Centres and lodges need service providers with special skills and abilities.
Enlisting Support from Mainstream Institutions Aboriginal health and healing centres are only part of the picture. Most Aboriginal people will, at least occasionally, continue to consult practitioners and use facilities in mainstream agencies and institutions - from doctors and hospitals to sheltered workshops for people with disabilities and transition houses for victims of family violence.
The institutions that deliver human services need to become more sensitive to the distinctive health and healing needs of Aboriginal people. Even when Aboriginal people are a major part of the client base, hospitals and other institutions are slow to adapt their practices to Aboriginal needs. Cultural sensitivity and responsiveness that go beyond the superficial should become a priority.
Mainstream institutions also have a role in supporting the development of new Aboriginal institutions. Even in tough economic times, the resources of mainstream institutions are vast compared to those under Aboriginal control. It is reasonable to expect them to offer some help to fledgling Aboriginal services.
Aboriginal institutions will welcome assistance in developing efficient and effective systems - as long as they can get it without relinquishing their autonomy. They will be looking for
We suggest that all organizations involved in delivering health and social services to Aboriginal people undertake a systematic assessment of their practices to see how they can improve their connections with Aboriginal people.
Infrastructure Development The fourth strand of the strategy for attaining whole health is an infrastructure program - to bring housing, water supplies and waste management in Aboriginal communities up to generally accepted Canadian standards of health and safety. Immediate threats to health and well-being from flimsy and overcrowded houses, polluted water and untreated sewage are so serious that solutions cannot wait. More details on this problem and how to solve it are presented in the next section.
We have families...doubled and tripled up. We have up to 18 and 20 people sometimes, living in a single unit built for one family.
Valerie Monague
Social services administrator, Christian Island, Ontario
Housing and Living Conditions: Meeting Urgent Needs Despite significant public spending over the past decade, housing, water supplies and sanitation services for Aboriginal people fall far below Canadian standards in many communities. Overcrowded and dilapidated houses, unclean and limited supplies of water, inadequate disposal of human wastes - these conditions pose an unacceptable threat to the health of Aboriginal people and reinforce feelings of marginalization and hopelessness.
[Because] low-income Native families have no other place to go...the
slum landlords in town are doing a great business.
Martin Heavy Head
Chair, Treaty 7 Urban Housing Authority
Lethbridge, Alberta
Until Aboriginal nations can take over the field, Canadian governments have an obligation to ensure adequate shelter for all Aboriginal people.
Most A boriginal people can make a contribution - some by taking on mortgage responsibilities, others by supplying labour or materials for construction and repairs or paying rent for existing units. This they should do, to the fullest extent possible, to free up scarce funds to help those in greatest need.
We are forced to dump our sewage in open pits and use outdoor privies at 30 to 40 below, winter temperatures. This practice causes people of all ages to get sick.
Chief Ignace Gull
Attawapiskat First Nation community
Moose Factory, Ontario
We propose that Canadian and Aboriginal governments, and Aboriginal people as individuals, contribute resources enough to ensure that housing needs are fully met within 10 years. The long-standing bones of contention standing in the way of action can be solved as follows:
Current federal projections lay out a timetable of at least nine years before all substandard facilities can be repaired or replaced. This is simply not fast enough for so fundamental a determinant of health and community morale.
Most of the communities with acute water and sanitation needs are small. Bringing their services up to standard will not require complicated technology or a big bureaucracy. It will require appropriate technology, adequate funding and knowledgeable, well-trained people to operate and monitor essential services.
We propose doubling the speed of remediation, so that all communities will have adequate water and sanitation services within 5 years.
Just as poor housing and services have harmful effects on health and well-being, so a turnaround in this sector could have broadly regenerative effects. For example,
It can be done.
The Gesgapegiag First Nation community in eastern Quebec has developed an active housing program using government subsidies and credit from the local Caisse Populaire Desjardins. The band negotiates loans for residents willing and able to take on a mortgage and also trains and provides local labour to keep construction costs down.
Aboriginal Control of Aboriginal Education: Still Waiting Aboriginal people often say, "Our children are our future." By extension, then, the future depends on the effectiveness of education. Education shapes the pathways of thinking, transmits values as well as facts, teaches language and social skills, helps release creative potential, and determines productive capacities.
Aboriginal people are well aware of the power of education. Greater control over their children's education has been a demand for at least three decades.
Parental involvement and local control of schools are standard practice in Canada - but not for Aboriginal people. Instead, they have long been the object of attempts by state and church authorities to use education to control and assimilate them, during the residential school era, certainly, but also, more subtly, today.
By seeking greater control over schooling, Aboriginal people are asking for no more than what other communities already have: the chance to say what kind of people their children will become. In the main, Aboriginal people want two things from education:
As we work towards establishing Anishnabe political systems, we need to give attention to education as a way of achieving functioning Anishnabe nations...
Vernon Roote
Deputy Grand Chief, Union of Ontario Indians
Many of our proposals for change in education have been advanced before, by commissions and task forces stretching back to the 1970s. It is clear what needs to be done, and it is long past time to do it.
To this end, we recommend the development of Aboriginal-controlled education systems, recognized by all governments and able to plan and deliver lifelong learning. Further, we are recommending that provincial and territorial schools take steps to ensure that the education they provide is fully appropriate for their Aboriginal students.
Education policy needs to ensure that appropriate learning takes place at each stage in the life cycle.
Aboriginal education as assimilation has always, everywhere, failed and
failed miserably and failed destructively... Aboriginal education for
self- determination, controlled by Aboriginal people, succeeds.
Dr. Eber Hampton
President, Saskatchewan Indian Federated College
Early Childhood Education In education, as in health, childhood is the foundational stage. Traditional family life provided a firm foundation of security and encouragement for Aboriginal children. Aboriginal families of today are not always able to provide this. Parents may be hampered by the effects of poverty, alienation, residential school experience, and dysfunctional family or other relationships. Many Aboriginal children arrive at school with special needs for understanding and support to liberate their in-born capacity for learning.
Like all children, Aboriginal children need to master the intellectual, physical, emotional and spiritual tasks of early childhood. Equally, they need grounding in their identity as Aboriginal people. We propose that all Aboriginal children, regardless of status or location, have access to dynamic, culture-based early childhood education. For elementary schools, we propose that
development for our future generations. We can accomplish this through
spirituality and communicating in our language.
Isadore Talouse
Teacher, Wikwemikong First Nation community
Education for Youth Aboriginal adolescents straddle two worlds - one where Aboriginal values and beliefs prevail, and another where television, popular culture and peer pressure offer competing values and priorities.
Aboriginal teenagers need a secure sense of self-worth to keep their balance in the storm of conflicting messages and demands. Many have not found that balance. Their confusion and distress are evident in high drop-out rates, teen pregnancy, substance abuse, defiance of the law and suicidal behaviour.
Aboriginal youth who spoke to the Commission said that they felt marginalized - unable to make their voices heard at school or in their home communities. We discuss several ways of empowering them in the next chapter.
It is critically important for Aboriginal adolescents to be able to live at home while attending secondary school. At age 13, they are not prepared for life away from a family and cultural base. Eventually, high school should be available in all Aboriginal communities. Where communities are very small, distance education may help make local high school programs possible.
Aboriginal youth who drop out before graduating need support and encouragement to return to school later. This is especially important for young women who leave because of pregnancy. Aboriginal and provincial authorities should take steps to make school re-entry easier and more attractive to Aboriginal youth.
A common concern of parents is when...the values and world view that
prevail at school contradict or ignore the existence of a different
perspective the child lives with at home...
Elsie Wuttunee
Calgary Catholic Separate School District No.1"Arial, Helvetica, sans-serif"
Education for Adults Many Aboriginal people reach adulthood without the skills, knowledge or credentials they need to find jobs or take up positions of responsibility in their communities. Their needs range from basic literacy and numeracy to advanced professional training. Federal, provincial and territorial governments have sponsored a range of adult training programs, but Aboriginal candidates face special barriers:
All governments should co-operate to increase the number of these institutions, to put them on a stable financial footing, and to secure their place in the post-secondary system.
Mainstream colleges and universities see high drop-out rates among their Aboriginal students. To improve retention, barriers to success must be dismantled. Students may require assistance to qualify for entry to colleges and universities, and they may require special supports to stay the course. Models of support can be found in a number of provinces and institutions.
Aboriginal nations will want to pursue funding for post-secondary education in their treaty negotiations. In the meantime, the federal government should continue to pay the full cost of post-secondary education for status Indians. It should also provide a special post-secondary scholarship and assistance fund for Métis and non-status Indian students.
The Splats'in Daycare Centre of the Spallumcheen First Nation in British Columbia was designed on a traditional, extended family model. Elders and children participated in everyday activities such as caring for animals, cultivating a garden and doing traditional crafts together. Through daily exposure to the Shuswap language, the children started to become Aboriginal language speakers.
Education for Self-Government Aboriginal people and nations need the right kind of education to make self-government a reality and a success. First, they need an array of trained people for the jobs that will be created. Second, they need educational institutions to safeguard and advance their cultures, languages and knowledge bases and to apply traditional knowledge to the problems of the modern world. These needs can best be met by institutions operating at the regional or national level.
The most pressing need is for trained people. The availability of these resources varies from one Aboriginal nation to another. But all nations face growing demands for skilled managers and staff to fill a range of public service jobs: jobs in economic development, health and social services, public works, education, sports and recreation, and so on.
Detailed forecasts of personnel needs will emerge from planning by Aboriginal nations, but it is safe to say that there are not enough trained Aboriginal people to fill the posts that will be available.
The Commission proposes that Aboriginal nations investigate and establish targets for human resources development in key fields and that Canadian governments enter into partnership with them to offer flexible training opportunities, internships and exchange programs to achieve targets in designated areas. Governments should co-operate to mount a campaign to make Aboriginal youth aware of the opportunities soon to be available. The time for these steps is not after treaties and other agreements are in place but before, so Aboriginal nations are as ready as they can be to implement self-government. Education is a key ingredient in readiness.
As Aboriginal nation governments are put in place, they will increasingly take charge of planning and delivering lifelong learning to their citizens, co-ordinating their efforts with provincial and territorial institutions. Aboriginal education authorities are already being run by some local communities. The Nisga'a in British Columbia and the Mi'kmaq in Nova Scotia have signed agreements establishing comprehensive education authorities for their nations. Our recommendations encourage this trend.
The objectives of Métis self-government and economic development cannot
be achieved in the absence of educated and technically trained
individuals within our Métis communities...
Claire Riddle
Vice-President, Winnipeg Region
Manitoba Metis Federation
We also recommend education measures to protect and develop Aboriginal cultures:
Aboriginal cultures have never been static. They have always responded to the flow of human experience. They are not frozen in irrelevance; neither are they 'lost' or 'dead'.
More and more Aboriginal people are opening their hearts and minds to the relevance of traditional beliefs and practices for life in the modern world and to their powerful role in restoring a sense of self, collective identity, and purpose to those who have lost their way.
Because of past policies that ignored and suppressed Aboriginal languages, ceremonies and living traditions, Aboriginal cultures are endangered. Positive action is needed to help those seeking ways to express, conserve, restore and document their cultures, in all their richness and diversity.
Still we survive, and we will continue to survive. Our language is still alive, as well as our culture, and we are very proud to be Indian.
Roly Williams
Noee Kwe Adult Education Centre
London, Ontario
Protective action should extend to the material forms of Aboriginal cultures (artifacts, works of art and craft, historical sites) and to their dynamic forms - songs, dances, stories and teachings that bring collective memory, insight and inspiration to Aboriginal people and to the world.
The living, changing cultures of Aboriginal peoples have an important role in helping to overturn the myths and stereotypes, twisted facts and misunderstandings that prevail in much of non-Aboriginal Canada. Doing so will require dialogue with knowledgeable Aboriginal communicators.
Knowledge of one another, and a sharing of wisdom, are essential to a true partnership of peoples.
All along the Foothills, ceremonial leaders are spiritually guided to
conduct ceremonies at specific sites, some of which are off-reserve,
located on provincial or federal Crown lands. Our Elders are being denied
full access...
Alvin Manitopyes
Assembly of First Nations Environmental Committee
Cultural Heritage The cultures of Aboriginal peoples are tied to the land - to specific places held by tradition to have been given to them to care for and to supply what they need. Their histories and mythologies are tied to features of the landscape. The bones of their ancestors are buried there. With resources from the land, they have fashioned sacred objects for ceremonial purposes. They have carved masks and crests to record family histories and lineages and told of memorable events in songs, stories and dances.
But Aboriginal people have lost control of many of their sacred sites. They have watched as objects of great power and significance were taken away by outsiders and displayed in distant museums, often out of context and in ways that offend their sacred value. Aboriginal people have made justifiable demands for
Governments should co-operate in making an inventory of sacred sites, in part so that those threatened by development or natural erosion can be saved. Elders should be involved in identifying sites requiring urgent attention.
We also urge museums and cultural institutions to adopt ethical guidelines for the collection, display and interpretation of artifacts related to Aboriginal cultures. Aboriginal people need greater access to their own cultural heritage, more opportunities for cultural education, and increased resources to develop their own facilities for display and study.
Language is one of the main instruments for transmitting culture from one generation to another.
Living Languages Language is one of the main instruments for transmitting culture from one generation to another and for communicating meaning and making sense of collective experience.
In Canada, there are 11 Aboriginal language families and more than 50 different languages. The number of Aboriginal language speakers is only a fraction of the Aboriginal population: about one person in three over the age of five. Most are middle-aged or older. Even the languages in most frequent use - Mi'kmaq, Montagnais, Cree, Ojibwa, Inuktitut and some Dene languages - are in danger of extinction because of declining fluency in the young.
One Elder has said, 'Without the language, we are warm bodies without a
spirit'.
Elder Mary Lou Fox
Ojibwe Cultural Foundation
Sudbury, Ontario
Minority languages all over the world are declining in the face of culturally dominant languages - especially those used in the media and popular culture. Aboriginal languages suffered a severe blow during the era when every child was forced by school policy to speak English or French.
The threat of their languages disappearing means that Aboriginal people's distinctive world view, the wisdom of their ancestors and their ways of being human could vanish as well. Language protection requires
Each Aboriginal nation will have to decide how far it can go in preserving its languages and develop policies to match. In the meantime, the speakers of Aboriginal languages are aging and dying. We propose the establishment of an Aboriginal Languages Foundation to document, study and conserve Aboriginal languages and to help Aboriginal people arrest and reverse the loss of languages that has already occurred.
I Lost My Talk
by Rita Joe
I lost my talk
The talk you took away.
When I was a little girl
At Shubenacadie school.
You snatched it away:
I speak like you
I think like you
I create like you
The scrambled ballad about my world.
Two ways I talk
Both ways I say
Your way is more powerful.
So gently I offer my hand and ask,
Let me find my talk
So I can teach you about me.
Communications Canada has always been held together in part by its communication links - from the river systems of the fur traders to the transcontinental railroad to the satellite signals linking us today. The information passing along these channels shapes and defines our view of the world and of one another. The need for accurate information and realistic portrayals of Aboriginal people is evident.
But Aboriginal people are not well represented by or in the media. Many Canadians know Aboriginal people only as noble environmentalists, angry warriors or pitiful victims. A full picture of their humanity is simply not available in the media.
Mainstream media do not reflect Aboriginal realities very well. Nor do they offer much space to Aboriginal people to tell their own stories - as broadcasters, journalists, commentators, poets or story tellers. Aboriginal people have little opportunity to tell Canadians in their own ways and their own words who they are.
Because Canadians do not hear Aboriginal points of view, they are often left with mistaken impressions about Aboriginal people's lives and aspirations and the reasons for their actions.
I quote from Louis Riel: 'My people will sleep for 100 years, and when
they awake, it will be the artists who give them back their spirit.'
Marie Mumford
Association for Native Development
in the Performing and Visual Arts
Aboriginal people are also severely limited in their opportunities to communicate with one another. They have few media services of their own - and even those lost almost all their funding in recent cuts. Domination of the media by the imagery and preoccupations of non-Aboriginal people contributes to the weakening of Aboriginal cultures. In the North, for example, the arrival of television in the 1960s helped transform the society in just one generation.
We make proposals in four areas:
After [poet] Pauline Johnson's untimely death in 1913, almost six decades were to pass before another Aboriginal author would be published in Canada.... In spite of all it has to offer, Aboriginal literature is still discriminated against in the Canadian publishing industry.
Greg Young-Ing
Theytus Books
Vancouver, British Columbia
Given their importance, it is perhaps surprising how little public or private support Aboriginal arts and artists actually receive.
The Commission sees a need for active support for at least a generation, to encourage revitalization and development of visual, literary and performing arts. We propose establishment of an Aboriginal Arts Council, a review of granting criteria in mainstream institutions, and increased support for training and facilities for display and performance.
Better Lives for Aboriginal People Discussions of Aboriginal affairs sometimes seem weighted toward issues of governance, law, constitution making and institution building. But the real point of these mechanisms is to make Aboriginal lives better.
Among the Gitksan and Wet'suwet'en, there is no mother tongue word for health. However, they do have a word for strength, which is interchangeable [with] health. They also speak of well-being. This well-being is associated with high self-esteem, a feeling of being at peace and being happy... This includes education. It includes employment. It includes land claims. It includes resource management. All of these lead back to wellness and well-being.
Rhea Joseph
Native Brotherhood of B.C. on Health Issues
Over the years, much time and energy and many dollars have been spent trying to do this. Yet serious problems of ill health, miseducation and disturbed family life remain. Aboriginal people and communities are worn down by the persistence of these problems. Canadians feel them as a drag on national progress.
Are the social problems of Aboriginal people intransigent? Hopeless? Certainly not. But ways of organizing and delivering human services for Aboriginal people must change fundamentally.
Patterns of distress, violence and self-destructive behaviour will never shift fully toward well-being without a concomitant shift of power, control and resources. But Aboriginal control is not a panacea - self-government is not a magic wand, and it is no guarantee of good results. It is always possible that Aboriginal control will be exercised badly from time to time. In any case, it will take time for self-government to have an impact.
In the meantime, improving the lives and strengthening the capacities of Aboriginal people is a worthwhile end in itself. It is also part of making Aboriginal control work, as illustrated by the circle of well-being described at the beginning of this chapter.
How can it be done? In four ways:
Many Peoples, Many Voices In the first three chapters, we discussed many of the things that matter most to Aboriginal people. But it is misleading to imply that all Aboriginal people share identical concerns and priorities.
Some groups have concerns that cut across cultural and nation lines. Women, youth, elders, people living in cities and those living in the North have specific concerns and proposals for change, many of which they presented to the Commission. We recognize the multiple realities of Aboriginal peoples, and in this chapter we give them voice.
By grouping people and ideas in this way, we don't want to imply that all women or all Métis persons or all northerners agree on issues and solutions. They do not. But in our conversations with them, some dominant themes did emerge, and we present them here. We hope that everyone who spoke to us will find something of themselves in what follows.
Our people will not heal and rise toward becoming self-governing and
strong people, both in spirit and vision, until the women rise and give
direction and support to our leaders. That time is now...
Nongom Ikkwe of the South East Region, Manitoba
Brief to the Commission
Voices of Women Women played a prominent part in the political and cultural life of many traditional Aboriginal societies. First and foremost, they were honoured as the givers of life. Their ability to bear, raise and nurture the new generation was seen as a special gift from the Creator, a source of awesome power and equal responsibility.
Women's leadership roles varied from nation to nation. Mohawk women, for example, were active in the political life of clan, village, nation and confederacy. Inuit women deferred to male leaders in public decision making but had considerable influence in social relations and family affairs, especially as they grew older. In some Aboriginal societies, women had a more subordinate role; even then, their skills and knowledge gave them an essential role in the community.
We are under no illusion that women's lives before contact were free of social problems. But Aboriginal women told us that, with the coming of colonial powers, a disturbing mind-set crept into their own societies. Policies and laws imposed by foreign governments ruptured cultural traditions and introduced discrimination against women.
Today, Aboriginal women are organized in ways that allow them to press for action on issues that concern them. Largely silenced for many years, now they will be heard.
Clear divisions of labour along gender lines existed, [but] women's and
men's work was equally valued... Everyone in the camp worked hard and
everyone had a specific role...
Martha Flaherty
President, Pauktuutit Inuit Women's Association
Women and Indian Status Their first concerns are for their immediate families and communities. But they have seen first-hand how laws and policies can have devastating consequences when put into action.
We have already described how Aboriginal people were restricted and controlled by the Indian Act and other laws originating in the nineteenth century. Women were doubly disadvantaged by the sexist nature of this law, rooted as it was in Victorian ideas of race and patriarchy. For much of this century, women were not allowed to vote in band elections, could not own or inherit property, and were treated as the 'property' of their husbands in many contexts.
Perhaps most offensive of all, a woman's identity as a First Nations person came to depend on the status of her husband. Even if she spoke her Aboriginal language, practised the traditions of her nation, and raised her children in the ways of her people, she ceased to be 'Indian' - in the eyes of the government - the moment she married a non-Indian. By extension, her children also ceased to be 'Indian'.
Women and children who lost Indian status lost all the rights that went with it. Men who married non-Indians did not suffer the same penalties. After a decade of challenges by Aboriginal women, the government made an effort to correct the injustice by introducing Bill C-31 in 1985.
Bill C-31 allows for the reinstatement of those who lost Indian status under the old rules and gives Indian status to their children. However, the process and criteria for first-time registration are confusing - and still offensive, because authority to determine who can be recognized as a status Indian still lies with the federal government, not with Aboriginal people.
As well, the children of women reinstated under Bill C-31 are still treated less favourably than those of men who married non-Indians before 1985. And children born of such unions after 1985 generally cannot pass their status on to their children.
Given enough time and enough marriages outside status boundaries, 'status Indians' could disappear completely as a category.
A further problem is that Bill C-31 delegated authority to bands to determine who can become a band member and consequently who can live on reserve lands. Those who acquired or regained status under Bill C-31 are not automatically given band membership or the rights that go with it. Access to subsidized housing on reserves is hotly contested in some places. Bill C-31 women and their children may suffer materially as well as psychologically from exclusion enforced by band decisions.
Instead of solving the status question once and for all, Bill C-31 created new divisions and new fears. As we see it, the solutions should be found by Aboriginal people themselves, as part of the nation-building process outlined in Chapter 2. Definitions of membership - or citizenship - in Aboriginal nations are not the business of Canadian governments. However, Aboriginal women and their organizations must be assured the resources to participate fully in this process, and in all aspects of nation building, before the federal government vacates the terrain.
As it stands now, I am a status person under section 6.2 of Bill C-31.
My two girls are not Native in the government's eyes. They have one-quarter Native blood. Do I tell my daughters that they are not Native because the government says it's so? No, I don't think so.
Connie Chappell
Charlottetown, Prince Edward Island
A Priority on Healing The need for Aboriginal people to heal from the consequences of domination, displacement and assimilation is perhaps the overarching concern of Aboriginal women. They have seen the social fabric of their communities severely damaged by mistaken policies. Many told us that healing must take place before self-government can succeed. As they put it, only healthy people and healthy communities can create healthy nations.
Breaking free of the pain, anger and resentment that are the legacy of the colonial past means allowing Aboriginal people and communities to initiate their healing strategies - initiatives that draw on traditional practices and an understanding of people's needs. They want more and better community health and social services, with adequate resources and a preponderance of Aboriginal staff.
Family violence is a particularly alarming manifestation of the erosion of traditional norms of interpersonal respect. Many women spoke to us of fear for the safety of their children and themselves and the need for places of refuge. In some communities, especially smaller ones, it can be hard for a woman and her children to find a safe haven.
Aboriginal women want to see their leaders and communities take a zero-tolerance stand against family violence. They see a great need for more culturally appropriate counselling services for both perpetrators and victims.
Voices of Elders Elders are known by many names in Aboriginal societies: the Old Ones, the Wise Ones, Grandmothers and Grandfathers and, in the Métis Nation, Senators. They are teachers, philosophers, linguists, historians, healers, judges, counsellors - all these roles and more.
They live the culture, they know the culture, and they have been trained in it. These are the true elders.
Elder Vern Harper
Toronto, Ontario
Elders are living embodiments of Aboriginal traditions and cultures. Through the Creator's gifts and their years of walking the earth, they have acquired knowledge and experience to live well and thrive in the physical world. They are in tune with the land, the cycles and rhythms of nature and life.
Elders are keepers of spiritual knowledge that has sustained people through thousands of years - knowledge of ceremonies and traditional activities, of laws and rules set down by the Creator to enable the people to live as a nation.
Both types of knowledge are equally important and valid. The spiritual and the physical intertwine; the natural and the supernatural wrap like a braid around the daily act of living. The realm of the sacred becomes a part of everyday life.
Not all elders are seniors, nor are all old people elders. Some are quite young. But elders have gifts of insight and understanding, as well as communication skills to pass on the collective wisdom of generations that have gone before.
Elders do not hoard their knowledge. Their most important task is to pass it on, so that the culture of their people can stay vital and responsive to changing times and conditions. The continuity of their nations depends on them.
The human voice leaves a lasting imprint on human memory and feelings, because so much heart and spirit can be communicated through the voice, like no other medium.
Esther Jacko
in Voices: Being Native in Canada (1992)
They transmit culture and mores through action, example and oral tradition - stories, jokes, games and other shared activities. The experience is personal; speaker and listener share the event. Hearing stories and teachings, listeners feel the pain, the joy, the victories and defeats of their people. They reach out to one another across time. Past, present and future become one.
With the help of their elders, Aboriginal nations have struggled to maintain their traditional values, languages and knowledge base - despite aggressive external forces vying to destroy them. Aboriginal people have fought fiercely to preserve their traditions, knowing that they are the principal source of their identity, self-respect and strength as individuals and as nations.
Elders are living embodiments of Aboriginal traditions and cultures.
Today we see a great resurgence of interest among Aboriginal people in their languages and traditions, many of which were fading until recently. Presenters at our public hearings told us that new institutions must build on the core teachings of Aboriginal tradition and the contemporary insights of the elders.
But reviving and reintroducing tradition does not mean turning back the clock. Most of the world's people live their lives according to religions and philosophies that are hundreds or thousands of years old. Similarly, Aboriginal traditions and teachings took their first form long ago, but they can be reshaped to be useful in the modern world.
The success of elders working with Aboriginal prisoners illustrates one part they can play. When we spoke to Aboriginal offenders, they told us how elders have helped them understand themselves, how they used counselling and traditional ceremonies to help them with the inner problems that contribute to criminal behaviour. Elders have been valuable in other judicial initiatives as well, especially in sentencing circles.
Our vision is to be happy. We want to relax and have dreams and laugh.
We want to love and talk... We want to know our Native culture. We want to
respect each other. We have to have a better future.
Robert Quill
Merritt, British Columbia
Elders told us that they have much more to offer than they are now being asked to give. They can be (and in some cases already are) significant contributors in education, health and social services, land and resource management boards, and efforts to build Aboriginal governments. They can contribute at almost every stage and every level. In education, for example, much is lost if elders are merely brought into classrooms once a year for a 'cultural awareness' day. They could be helping to reshape curriculum, teaching practices and administration styles.
Aboriginal people want to see the ways of their ancestors recognized, protected and used. Elders must have access to sacred sites for ceremonies and to gather traditional plants and herbs. Elders, in turn, will contribute their gifts of insight and knowledge to the nation. This is as it should be, for elders are essential to the perpetuation and renewal of the Aboriginal way of life.
We don't need money all the time. What we need is our nations, our
people, our communities to come together as one and to work together as
one, to sit down and say, 'Okay, this is what we've got to do.
Stan Wesley
Moose Factory, Ontario
Voices of Youth Aboriginal youth make up the largest segment of the Aboriginal population. An estimated 56.2 per cent of Aboriginal people are under 25. These young people will carry on the initiatives and live the dreams of Aboriginal nations in the next millennium.
Some of the most dynamic presentations we heard were from youth. They showed insight and heartening optimism in discussing the many serious issues affecting their life chances. They are looking for solutions that are practical and can be implemented right now in their communities. They are undaunted by political and administrative hurdles. They want to get the job done in the quickest, most effective way possible.
But youth do not feel their visions and ideas are being recognized by their leaders. They see themselves as a wasted resource. They urged Aboriginal organizations to follow the lead of the National Association of Friendship Centres and the Inuit Circumpolar Conference, to take steps to involve them more deeply in all community matters.
Aboriginal youth described three overarching goals for the future:
Healing of the mind implies a school environment in which the contributions of Aboriginal peoples to Canada and the world are studied, respected and validated. Youth need a curriculum inclusive of Aboriginal history and present-day realities. They need learning institutions run by Aboriginal people for Aboriginal people. They need better financial support to undertake and complete their studies.
The youth today need productive activities... As soon as they do
something worthwhile, their self-confidence will build and they will feel
better about themselves.
Kathy Nelson
Roseau River, Manitoba
Healing of the emotions can perhaps best be done with the help of elders. Aboriginal youth see elders as being able to offer them counselling in times of trouble from a contemporary perspective, informed by a traditional worldview. At the same time, they need to create space for serious talk among themselves and to share the emotional load that comes with being Aboriginal in Canada today.
Healing of the body completes the circle. Young people need more opportunities for sport and recreation, to help them build social bonds in their communities, create bridges to other communities, and develop leadership and team-playing capacities. Some told us that the social problems they see around them could be alleviated through recreation programs designed with these goals in mind.
Aboriginal youth are now served - not very well - in a piecemeal way by programs and initiatives of various departments and governments. We see a need for a co-ordinated, Canada-wide policy framework to deal with the concerns of Aboriginal youth - to take an integrated approach to issues of education, justice, health and healing, employment, sport and recreation, and urban concerns.
Although those who spoke to the Commission were largely optimistic about what lies ahead for them, Aboriginal youth face many obstacles to a safe and satisfying future. With a little help, they are ready to roll up their sleeves and do their part to refashion the future.
Voices of Métis People Some 139,000 Canadians identify themselves as Métis. Their history dates back hundreds of years, but most Canadians know little about them. Métis are distinct Aboriginal peoples, with their own history, language and culture.
European fur traders and settlers began to associate with and marry indigenous women soon after they arrived in the Americas. In the early years, children of those unions were usually raised in one culture - either European or Aboriginal. But as time passed, the offspring of mixed marriages began to combine elements of both cultures, to produce something original - new Aboriginal peoples, the Métis.
Métis culture grew out of the circumstances of their lives. On the prairies, the language of the Métis - Michif (and its many dialects) - was a practical blend of French and several First Nations languages. Constant travel inspired portable art - exuberant song, dance and fiddle music and skilfully decorated clothing. Some Métis formed permanent settlements around trading centres. The buffalo hunt was an important organizing feature of other, more mobile Métis groups. For eastern Métis, a fishing economy shaped settlement patterns.
Using their family connections, their wilderness skills, and their knowledge of European and Aboriginal languages to extend European penetration into the North American interior, Métis people played a crucial role in building the country.
In Chapter 2, we defined the term nation and recommended a recognition policy for Aboriginal nations. The people of the western Métis Nation fit our criteria of nationhood. They have long been a culturally distinct people, they demonstrate social cohesiveness, and they have a record of political effectiveness. They might well be one of the first peoples to move toward nation status under the approach we propose. We expect that the Métis of Labrador and other Métis communities would follow suit, on a more extended timetable.
I'm Métis... It's a cultural, historical issue, and it's a way of life issue. It's not what you look like on the outside. It's how you carry yourself around on the inside that is important, in your mind and your soul and your heart.
Delbert Majer
Saskatchewan Metis Addictions Council
Regina, Saskatchewan
The government of Canada should deal with Métis people, like all other Aboriginal peoples, on a nation-to-nation basis. The Constitution Act, 1982 already recognizes them as Aboriginal peoples, but the government has declined to extend most of its Aboriginal programs and services to them.
The government maintains that its responsibility for "Indians, and Lands reserved for the Indians", set out in section 91(24) of the Constitution Act, 1867, does not include the Métis. We disagree. More than 50 years ago, the Supreme Court ruled that federal jurisdiction under section 91(24) includes Inuit. The government now offers most of its programs and services to them. It is unjust and unreasonable to withhold from Métis people the services and opportunities available to other Aboriginal peoples.
The general goals of Métis people are not very different from those of other Aboriginal people: reinforcing their culture, assuming political responsibility for themselves, obtaining a viable land base for economic and cultural development, and ensuring that their children are healthy, well educated and ready to lead the nation in their turn.
A land base is particularly important because, except in Alberta, Métis people have no territory of their own. Vast tracts of land in the prairies were to have been distributed to them under the Manitoba Act, 1870 and the Dominion Lands Act of 1879, by means of a system known as 'scrip'. But those who tried to collect the land they were owed encountered delays, inefficiency, stonewalling and outright scams.
Often the allocated land was so far distant from a claimant's home base that his only real option was to sell it for whatever he could get. Local land speculators were ready and willing to buy - at bargain basement prices.
Moreover, the scrip system was not intended to result in a true Métis land base. Scrip was given to individuals, entitling them to settle with their families on discrete parcels of land. It was nothing like the reserve system, where First Nations shared an exclusive territory. The government of the day feared the growing numbers, economic strength and fire power of Métis people and aimed to break up their collectivities.
This history of sharp dealing has led the Métis of the prairies to argue that their land rights have never been extinguished. Métis in other parts of the country escaped the scrip debacle and now claim a land base in the general context of Aboriginal rights.
Aboriginal nationhood has always been closely connected to the land. To fulfil their legitimate social, cultural, political and economic aspirations, Métis people need their own land.
We urge federal, provincial and territorial governments to proceed rapidly with nation recognition so that Métis nation(s) can negotiate treaties or accords in the same manner as other Aboriginal peoples. These would specify the powers of their governments, the extent of their land base, the compensation owing to them for past injustices, their Aboriginal rights (such as the right to hunt, fish and trap on Crown land in all seasons), and the nature of their fiscal arrangements with other governments. These negotiations will be neither quick nor easy - all the more reason why they should begin now.
Métis people entered the twentieth century uprooted, fragmented and dispirited. They are determined that, as the next century unfolds, they will regain their rightful place as self-governing, self-sufficient, culturally vibrant Aboriginal people living in a more egalitarian Canadian society.
There has got to be a land and resource base for Métis. It's
fundamental... There is a myth out there that when you talk land and
resources that Métis may have less rights than some other Aboriginal
people in this country... Our rights co-exist with the other Aboriginal
peoples in this country.
Gary Bohnet
President, Metis Nation-Northwest Territories
Voices from the North Canada's North is home to Inuit, First Nations and Métis people and to non-Aboriginal people drawn there by the astonishing beauty of the North, its promise of economic opportunity, and the unique way of life it offers. It is a proving ground for political ideas and systems, a place where bold new initiatives can be tested. The North thus remains a place of exploration and discovery, of charting new paths and exploring new frontiers.
The Political Dimension The Aboriginal peoples of the North live under a variety of political arrangements.
The 17 First Nation communities of the Yukon recently negotiated an Umbrella Final Agreement (ufa) that greatly increases their land and resource base and makes available a significant pool of capital for their use. The ufa also provides a framework for individual self-government agreements and, for the first time, does not require blanket extinguishment of Aboriginal title
The essence of the relationship between Inuit and Canada is an unequal power relationship in which Inuit rights have often been ignored and Inuit powers have been usurped by governments not of our making. The Inuit self-government and land claims agenda hopes to correct this by negotiating new government bodies in our territories, and asserting our rightful status as a people while respecting the human rights of other people.
Rosemarie Kuptana
President, Inuit Tapirisat
Dene signed two of the historical treaties, Treaty 8 and Treaty 11. As well, two contemporary land claims have been settled, one with the Gwich'in Dene and Métis, the other with the Sahtu Dene and Métis. The Dogrib are currently negotiating a third claim. Dene elsewhere in the North expect to achieve self-government through implementation of their treaties.
The Métis of northern Canada are not part of Treaties 8 and 11, but they are included in the two modern claims agreements that have been reached. They are seeking ways to restore and protect their rights in a combined process of constitutional development and land claims.
The 38,000 Inuit living in the North have exercised their right of self-determination through 'public government' (a form of governance discussed in Chapter 2). Eligibility to participate in governance is based on long-term residency, not Aboriginal nation or group membership. But because Inuit form a majority on their traditional territories, they can control government activity.
Most Inuit in the North share in one of three major land claims agreements: the James Bay and Northern Quebec Agreement, signed in 1975; the Inuvialuit Final Agreement (1984), covering the Inuvialuit in the western Arctic; and the Nunavut Land Claims Agreement Act and the Nunavut Act (1993), which will create a new territory in the eastern part of the Northwest Territories in 1999. Labrador is the only region settled mostly by Inuit that is without an agreement. The government has transferred administrative authority to Labrador Inuit in specific program areas, and they hope that a broader agreement can eventually be reached.
The pace of political change in the North over the last 20 years has been remarkable. People in all regions are settling in to build governing institutions that reflect the social and cultural variety of northern peoples.
The Aboriginal people are, by tradition, people of the land. Their very
nature is tied strongly to the land and any answer to the economic
problems must include their remaining on the land.
Rae Stephensen
Old Crow, Yukon
Environmental Stewardship Most Aboriginal northerners make their living in the 'mixed' economy. Households combine cash income from a variety of sources (employment, welfare, art and craft production) with hunting, fishing and other harvesting activities. As jobs come and go, as fish and fur prices rise and fall, as their circumstances change, people shift their mix of activities to match.
The health of the mixed economy depends on the health of the environment. Environmental stewardship is thus a matter of survival for northern Aboriginal peoples - survival of the mixed economy and their way of life.
Most northern Aboriginal people favour commercial development - but only if it happens in ways that respect the land and all its life forms. However, the legacy of many resource extraction projects and of military installations that still dot the North has been extensive environmental damage.
Northerners speaking to the Commission expressed strong views about the need to clean up these sites and prevent future pollution; to improve the operations of regulatory bodies; and to use Aboriginal knowledge of natural phenomena to ensure sustainable resource use.
Initiatives such as wildlife co-management boards, which bring the combined expertise of Aboriginal hunters and non-Aboriginal scientists to bear on protection and harvesting issues, are an example of a northern approach to environmental stewardship that should be promoted and extended.
Supporting the Northern Economy Even with a healthy environment, a question remains: how will all the people of the North make a living in the future? The adult population will grow significantly over the next decade, outstripping the most optimistic forecast of new jobs. The cost of living is high, and public spending will not be able to meet all needs.
Aboriginal people can and should play a larger role in designing measures to increase self-reliance among those who, because of their circumstances, may always need income supplements of some kind. Programs that draw on Aboriginal values, self-awareness and creativity will have far more positive effects on those who need help than current programs have.
For example, funds from social assistance programs could be used to support traditional harvesting or paid labour of all kinds. In either case, the community would benefit from promoting self-reliance.
Our report also contains proposals for supporting the wage sector. Aboriginal people in the North have never shared fully in the economic benefits of resource extraction in their traditional territories. We describe ways for non-resident businesses and industries to give back something of what they are taking out of the North - by recruiting more Aboriginal employees, helping to develop a more skilled labour force, supporting local businesses, and engaging in more joint ventures with Aboriginal people, communities and nations.
Taking Charge Aboriginal people's way of life has been transformed in the past two decades. Where once they moved freely on the land, most now live in settled communities. Where once they had the independence - and the insecurity - of small hunter-gatherer societies, most now depend on wage employment or social assistance.
Today we find that a lot of our people who come into the urban setting are unable to live in the modern world without their traditional values.
Nancy Van Heest
Urban Images for First Nations
Vancouver, British Columbia
For some, the result has been a breakdown of traditional norms and values and in the responsible social behaviour that grew from them. Many northerners trace the abuse of alcohol and other social problems to the pace and scale of the changes they have experienced.
We support their intention to take charge of the institutions, processes and programs that will direct and control change in the North. This will allow them to work toward new codes of responsible social behaviour and new ways of sharing the frontier that is also their homeland.
Voices of Urban Aboriginal People Almost half of all the Aboriginal people in Canada live in urban areas, and as many Aboriginal people live in Winnipeg as in the entire Northwest Territories. Many Canadians will find these facts surprising, and governments certainly appear to have given them little thought in policy and program decisions.
This information and policy vacuum can be traced, at least in part, to long-standing ideas about where Aboriginal people 'belong'. Canadians and their governments seem to believe that Aboriginal people were not meant for city life - or that, if they come to the city, they should live like 'ordinary Canadians'.
But culture is not something Aboriginal people discard at the city limits. The cultures in which people are raised and given their identity reside deep inside them and shape every aspect of being - wherever they happen to be living.
Who Are Urban Aboriginal People? Some 320,000 self-identified Aboriginal people live in cities - that's 45 per cent of the total Aboriginal population, and the proportion is expected to grow.
Aboriginal people come to the city for many reasons. Often they seek new opportunity - education, a job, a chance to improve their lives. Some women leave home to escape abuse. Others are denied residence in their home communities (Bill C-31 notwithstanding). Whatever the reasons, Aboriginal women outnumber men in the urban population.
The city does not always keep its promise of a better life for Aboriginal people. They are markedly disadvantaged in comparison to their non-Aboriginal neighbours. In general they have less education, are less likely to have jobs, and are more likely to be poor.
The Question of Identity Aboriginal people face an enormous struggle to maintain culture and identity in urban settings - let alone pass them on to their children. City life, with its myriad cultures and lifestyles, does not necessarily validate theirs. Episodes of racism lead many to question their identity and self-worth. Some told us they fear losing themselves, or they feel torn between worlds. Others repudiate their identity by denying their aboriginality or falling into self-destructive behaviour.
Culture is not something Aboriginal people discard at the city limits.
In our view, Aboriginal people should be able to feel at home and find affirmation of their identity wherever they choose to live. For Aboriginal culture to survive in cities, thriving communities are needed, with culture-based institutions to serve and support them.
In our public hearings, friendship centres were often described as places where any Aboriginal person can find support and acceptance in the city. The centres have long experience in delivering cultural education and rediscovery programs, and they should have secure funding from the federal government to carry on their work.
The most effective way to catch these problems before they start is through strengthening an individual's identity and awareness of the community that exists in the city.
David Chartrand
President, National Association of Friendship Centres
In some cities, Aboriginal people have opened their own schools, with cultural survival as a main goal. In addition to subjects set by the provincial curriculum, they teach Aboriginal languages, history and traditions. Elders are normally involved, an important connection for youth in the absence of the extended family.
As discussed in Chapter 3, Aboriginal child and family service agencies are also becoming more common. With their policies of in-culture child placement where possible, they are also a bulwark against the gradual assimilation of urban Aboriginal people.
Unfortunately, governments offer an uneven checkerboard of programs and services for Aboriginal people in cities. They usually have only short-term or pilot project funding and are limited to a few aspects of life, such as housing and daycare.
We propose that all levels of government co-operate to increase support for cultural survival initiatives. The ideas are many, but funding has been all too meagre.
A Question of Responsibility Many of the problems described by urban Aboriginal people stem from the lack of a coordinated approach to their concerns. They do not receive the same level of services and benefits from the federal government as First Nations people and Inuit living in their home communities (even if they have Indians status). Yet they face obstacles to using the provincial programs available to everyone.
Self-determination for individuals and families is the foundation of
Aboriginal people both on and off reserve.
Dan Smith
President, United Native Nations
Vancouver, British Columbia
The federal government usually takes the position that, once they have left their reserves or settlements, Aboriginal people are no longer a federal responsibility. Yet some provincial authorities argue that status Indians remain the responsibility of the federal government.
In our view, the federal government should be responsible for
We also see a need for enriched or remedial services, to help Aboriginal people achieve a quality of life similar to that of other urban Canadians. This cost should be shared by federal, provincial and territorial governments, according to a formula reflecting the fiscal capacity of each.
We would like to see urban services delivered on a 'status-blind' basis. That is, they should be available and accessible to all Aboriginal people, regardless of their nation of origin. In some provinces, however, urban services are being delivered to First Nations and Métis people separately. Where this system is working well, we see no reason to disrupt it.
Structures don't make change - people do.
Self-Government in the City One of the toughest issues in the urban context is self-government. It is fairly easy to imagine self-government in Aboriginal communities with a discrete land base. But what does it mean in cities? Will there be 'Aboriginal zones', with their own laws and governments?
We identified three possible approaches to self-government in urban areas:
These and other approaches discussed in our report will take time to work out. The idea of urban self-government is only beginning to take shape, and most of the conceptual development should be done by Aboriginal people. We urge that governments, both non-Aboriginal and Aboriginal, co-operate to provide support in the planning stages and recognize viable urban governments as they emerge.
Our relationships need to evolve [back] into a partnership...people-to-people, culture-to- culture, nation-to-nation. That is the direction we need to take.
Al Ducharme
Métis history teacher
La Ronge, Saskatchewan
Because Aboriginal and non-Aboriginal people live as neighbours in urban areas, Canada's cities offer many chances for building bridges between cultures. We would like to see more Canadians initiate such activities.
Recognizing Diversity As we talked to Aboriginal people all over Canada, we recognized - in some cases, for the first time - the enormous diversity among them. They do not make up a single-minded, monolithic entity, speaking with one voice. Canadians do not expect non-Aboriginal leaders to agree among themselves. They should not expect Aboriginal leaders to do so either.
Aboriginal people spring from many nation traditions. Their languages, belief systems and outlooks differ from one another in important respects - although they share much as well. They differ also in their experience of life in Canada - by age, by region and by location.
The diversity of Aboriginal perspectives and outlooks is a reality that other Canadians must accept, for the sake of greater understanding across the cultural divide. Aboriginal people themselves are struggling to come to terms with it, as they strive to build bridges across their differences so that they can use their combined voices to their collective benefit.
The ability to construct an identity for the self, either as an individual or as a collective, lies at the heart of modernity. I now see group of [Aboriginal] people who are constructing a positive identity for themselves, who now see themselves as an integral part of, and contributors to, the society around them.
David Newhouse
Trent University
The importance of recognizing diversity for public policy is this: no one answer will do for all Aboriginal people. No one model - be it self-government, healing centre or housing design - will speak to all Aboriginal nations. Just as there are many voices, there must be many responses.
5) Renewal: A Twenty-Year Commitment Our report contains hundreds of recommendations. As our mandate directed, we looked at all the major problems facing Aboriginal people in their relationship with Canada. Each has proved difficult to resolve. Together they look even more unmanageable. Or so we thought when we began our work.
As we delved deeper, we came to appreciate the Commission's unique opportunity to approach the relationship between Canada and First Peoples in a new way - holistically. We realized that the usual strategy - tackling the problems one at a time, independently - is tantamount to putting a band-aid on a broken leg. Instead we propose a comprehensive agenda for change.
We talk at some length about new structures of governance, new strategies for economic development, new kinds of social programs. But at heart, what we want to do is something more radical. It is to bring about change in human lives. It is to ensure that Aboriginal children grow up knowing that they matter - that they are precious human beings deserving love and respect, and that they hold the keys to a future bright with possibilities in a society of equals.
This is the goal of the Commission's agenda for change. The challenge remains: how to begin?
Foundations of a New Relationship The starting point is recognition that Aboriginal people are not, as some Canadians seem to think, an inconsequential minority group with problems that need fixing and outmoded attitudes that need modernizing. They are unique political entities, whose place in Canada is unlike that of any other people.
Remaining passive and silent is not neutrality - it is support for the status quo.
Because of their original occupancy of the country, the treaties that recognized their rights, the constitution that affirms those rights, and their continued cohesion as peoples, they are nations within Canada - collectivities with their own character and traditions, a right to their own autonomous governments, and a special place in the flexible federalism that defines Canada.
Seeking a better balance of political and economic power between Aboriginal and other Canadian governments was the core and substance of our work. Progress on other fronts, unless accompanied by this transformation, will simply perpetuate a flawed status quo.
Throughout our report, we emphasize the importance of an understanding of history. We cannot expect to usher in a new beginning unless we reckon first with the past.
We have survived Canada's assault on our identity and our rights... Our survival is a testament to our determination and will to survive as a people. We are prepared to participate in Canada's future - but only on the terms that we believe to be our rightful heritage.
Wallace Labillois
Council of Elders
Kingsclear, New Brunswick
We do not propose dwelling on the past. Neither Aboriginal nor non-Aboriginal people want that. But there must be an acknowledgement that great wrongs have been done to Aboriginal people.
There is little evidence of such an acknowledgement today. Indeed, just as the restoration of Aboriginal nations and cultures appears to be offering real hope for renewed well-being, a backlash is developing - a reaction characterized by slogans like 'all Canadians are equal' and 'no special status' - but its premises are very wrong.
It is wrong to suggest that all people should be treated the same, regardless of inequalities in their situation.
It is wrong to turn a blind eye to the dispossession and racism that distort the circumstances of Aboriginal people and limit their life chances.
It is wrong to ignore the historical rights that Aboriginal people still enjoy as self-governing political entities - rights that Canada undertook to safeguard as we were struggling toward nationhood.
Proponents of the so-called 'equality' approach claim that renewal and restoration in the ways we propose will bring 'apartheid' to Canada. In the name of equality, they would deny Aboriginal people the chance to protect their distinctive cultures and fashion their societies in ways that reflect their values
Like our ancestors, we regard the right to be different not as an obstacle but as a foundation for our coexistence as distinct peoples.
Anthony Mercredi
Grand Chief, Treaty 8
This way of thinking is the modern equivalent of the mind-set that led to the Indian Act, the residential schools, the forced relocations - and the other nineteenth-century instruments of assimilation.
We ask those who think this way to reconsider their position. Its consequences are the very antithesis of equality, for it will freeze the existing imbalance of power and well-being between Aboriginal and non-Aboriginal people firmly in place.
How to Begin The first step is for the government of Canada to make a clear commitment to renewing the relationship between Aboriginal and non-Aboriginal people, guided by the principles of recognition, respect, sharing and responsibility.
Whatever the words of your final report and recommendations may be,
they will mean little if they are not met with the political will, the
knowledge and the ability to achieve their intent.
Chief Robert Pasco
Nlaka'pamux Tribal Council
Merritt, British Columbia
Change of this magnitude cannot be achieved by piecemeal reform of existing programs and services - however helpful any one of these reforms might be. It will take an act of national intention - a major, symbolic statement of intent, accompanied by the laws necessary to turn intentions into action.
This can best be done by a new Royal Proclamation, issued by the Queen as Canada's head of state and the historical guardian of the rights of Aboriginal peoples, and presented to the people of Canada in a special assembly called for the purpose.
The proclamation would set out the principles of the new relationship and outline the laws and institutions necessary to turn those principles into reality. It would not supplant but support and modernize the Royal Proclamation of 1763, which has been called Aboriginal peoples' Magna Carta.
The new proclamation would commit the government of Canada to making good on its proclaimed intentions by introducing new laws and institutions to implement them. The laws and institutions would come into being through companion legislation passed by Parliament:
We propose that close consultations with Aboriginal peoples and provincial governments on the content of the proclamation and companion legislation begin within six months of the publication of this report.
Provincial and territorial governments have benefited greatly from Aboriginal peoples' loss of lands and resources. They have a moral and a legal responsibility to participate fully in measures to restore self-reliance and autonomy, including land redistribution, the redesign of government responsibilities, and arrangements for co-management of shared resources.
If the wealth of our homelands is equitably shared with us, and if there is no forced interference in our way of life, we could fully regain and exercise our traditional capacity to govern...
Vice-Chief John McDonald
Prince Albert Tribal Council
La Ronge, Saskatchewan
To this end, we call for a meeting of first ministers and Aboriginal leaders to be convened as soon as possible, but no later than six months after publication of our report. Its purpose will be to review our central recommendations, consult on the proposed Royal Proclamation, and set up a forum of ministers and representatives of key Aboriginal organizations to work out a Canada-wide framework agreement for negotiating key elements of the agenda for change, especially
Gathering Strength and Building Capacity To this point we have discussed structural measures to rebalance power between Aboriginal peoples and Canadian governments. But structures don't make change; people do. Aboriginal people must regain hope that their rights will be recognized and their legacy of disadvantage overturned. When they do, their energies will be liberated to fashion the thousands of individual solutions that will make change a reality.
To equip Aboriginal people for the tasks of nation building that lie ahead, structural change - new laws, new bodies to implement them - must be accompanied by measures to give people hope, new capacities for self-management, and the confidence to take charge in their communities and nations.
We cannot become the independent people we want to be and that we have a right to be without access to the resources of this very affluent country.
Sophie Pierre
Ktunaxa/Kinbasket Tribal Council
Cranbrook, British Columbia
This requires early action in four areas: healing, economic development, human resources development, and Aboriginal institution building.
Gerald Morin
President, Métis National Council
The High Cost of the Status Quo The case for a new deal for Aboriginal peoples rests on strong arguments for restorative justice and recognition of historical Aboriginal rights. It also rests on solid economic ground: Canada can no longer afford the status quo.
Eliminating the excess cost to Canadians of the policies of the past is a powerful argument for implementing the Commission's agenda for change.
As a group, Aboriginal people are on the margins of the Canadian economy. They produce less, and thus contribute less than the average Canadian, to the wealth of the nation. Because they earn less, they have a substantially lower standard of living than other Canadians.
Poverty, poor health, under-education and high mortality rates all indicate the long-term impacts of the colonization mind-set. It is the Aboriginal peoples' conception of their needs and interests which must be the starting point - the real [meaning] of the term 'self-determination'.
Marlene Buffalo
Hobbema, Alberta
The unemployment rate for Aboriginal people soared during that decade - far outpacing the increase for Canadians generally - and their average income declined. This happened despite a narrowing of the gap in educational attainment between Aboriginal and non-Aboriginal Canadians. This trend has likely continued through the '90s, as the influx of young people into the labour market and the lack of jobs have persisted.
This situation brings much suffering to Aboriginal people and communities and adds greatly to public indebtedness. More than 150,000 Aboriginal adults do not know the satisfaction of earning an adequate income and being economically independent.
Cost of Government Assistance In 1992-93, the latest year for which information on all governments is available, the federal government spent $6 billion dollars for Aboriginal people, mostly on programs for registered Indians and Inuit. Other governments (mainly the provinces) spent $5.6 billion - for a total of $11.6 billion.
One of the untapped human resources of Canada is the Aboriginal peoples, and once we are in a position to prove that we are and always were hard-working people, we will be an asset, and viewed as an asset.
Wilfred Collins
Chairman, Elizabeth Metis Settlement
Elizabeth, Alberta
Governments spend money on all citizens, mostly on programs to provide health care and education, stimulate the economy, facilitate transportation and so on. But the amount spent per person for Aboriginal people is 57 per cent higher than for Canadians generally.
Why? Some of the federal government's expenditures arise from special programs, such as non-insured health benefits and post-secondary education, that originate in treaty rights or Indian Act obligations. Geography and demography play a role as well:
The excess cost of assistance to Aboriginal people - that is, the amount over and above what is spent on an equivalent number of other Canadians - is estimated at $2.5 billion for 1996. (This figure consists of $0.8 billion for financial assistance and $1.7 billion for remedial programs.)
The tax dollars lost because of unemployment and low-wage employment is estimated at $2.1 billion for 1996. When this amount is added to the $2.5 billion, a figure of $4.6 billion emerges as the cost to Canadian governments of continuing policy failure with respect to Aboriginal people. This is about how much the government of New Brunswick spends to run the entire province for a year.
We can go further. Potential earnings lost to Aboriginal people because of their depressed employment status and wages are estimated at $2.9 billion for 1996. Adding this to the $4.6 billion already lost produces a figure of $7.5 billion - the total cost to Canada of leaving Aboriginal people's social and economic circumstances as they are.
Unless Canada makes fundamental changes, these figures will increase substantially. If current trends continue, the yearly economic loss to Canada will rise from $7.5 billion to $11 billion (in 1996 dollars) over the next 20 years, in response to population increase alone (see Table 1).
Table 1 Cost of the Status Quo - Today and Tomorrow
Notes:
1. The cost of the status quo is shown in italics. Other figures show how this cost is distributed.
2. Most of the cost of forgone earned income ($5.8 billion in 1996) is borne by Aboriginal people in the form of lost income. The rest is borne by governments in the form of taxes forgone and various forms of assistance paid out. These costs to governments are not included in the amount given for 'Cost to Aboriginal People'.
Renewal as a Good Investment The Commission's agenda for change can substantially reduce the costs of Aboriginal marginalization, ill health and social distress. But changes of such magnitude will not be easy. Profound problems require solutions that deal with the root causes. Solutions, once identified and implemented, take time to come to fruition.
By tackling the issue of dependency, by creating more independent people and communities, we will change the manner in which our communities function so that we will be contributing to the wealth not just of our communities, but of this country.
Francis Frank
Chief Councillor, Tla-O-Qui-Aht First Nation community
Port Alberni, British Columbia
Canada stands to gain by acting on our proposals. Aboriginal people will gain by achieving greater productivity and higher incomes. Other Canadians will gain through reduced government spending and increased government revenues. Political, economic and social renewal can help Canada balance its books.
Our proposals will cost money, but they will also save money. Eventually, savings and new tax revenues will equal and then exceed the cost of the strategy. We estimate that it will take between 15 and 20 years of investment to reach that point.
Accordingly, we recommend strongly that governments increase their annual spending, so that five years after the start of the strategy, spending is between $1.5 and $2 billion higher than it is today, and that this level be sustained for some 15 years.
In considering the increased outlay we recommend, Canadians should keep four things in mind:
resources.
Chief Nathan Matthew
Secwepemc Nation
Kamloops, British Columbia
We estimate that half the potential gain from better social and economic conditions could be realized within the 20-year investment period. Beyond that point, social and economic recovery will continue under their own momentum. Over the 20-year period, the flow of financing should evolve in three stages:
Federal, provincial, territorial and Aboriginal governments will need to assume a share of the additional cost of the agenda for change. But the costs we describe will be borne in part by Aboriginal governments and financed through their own taxation efforts.
Federal, provincial and territorial governments will benefit greatly in the long term from
Perhaps it will take longer. But within the 20-year timeframe, enormous momentum for change can be generated. By 2016, Aboriginal people can be very much better off than they are today and moving steadily forward.
The result will be a large gain in human and financial terms for Aboriginal people - and, in the long term, much greater savings for all Canadians.
Table 2: Changes in Government Finances as a Result of the Strategy Notes:
1. Positive entries (figures without parentheses) show the increase in spending by all governments needed to implement the strategy.
2. Reductions are shown by numbers in parentheses in the second column. These relate to amounts saved as a result of the strategy (that is, amounts that would be spent if the status quo continues) and to additional revenues collected by governments. See Volume 5, Chapter 3, of the Commission's report for a complete explanation of these figures.
3. Figures are rounded to the nearest $25 million.
Awareness and Understanding The tasks we have laid out for renewing the relationship between Aboriginal and non-Aboriginal people are huge - but they pale in comparison to the task of changing Canadian hearts and minds so that the majority understand the aspirations of Aboriginal people and accept their historical rights.
Social and structural change will not take place unless Canadians want it to. Leadership from governments is necessary but not enough. People need to see the reasons for - and the justice in - the Commission's agenda for change. They must urge governments forward when they waver, and they must be ready to accommodate the set-backs and surprises that inevitably come with major change.
If...awareness is not increased dramatically, then the probability of [Métis] people assuming their rightful place in society in the future is very low.
Gerald Thom
Metis Nation of Alberta
We were told many times during our mandate that most Canadians know little of Aboriginal life and less of Aboriginal history. Information in school curriculums is limited. Media coverage is often unsatisfactory. Few governments, agencies and organizations promote awareness of Aboriginal issues among members, employees and colleagues.
Yet without mutual understanding, a renewed relationship is impossible.
Part of the answer is information. We recommend a number of steps to increase and improve the quality of information about Aboriginal people and their concerns. But information alone will not break down walls of indifference and occasional hostility. Aboriginal and non-Aboriginal people need many more chances to meet each other face to face and learn about one another.
We urge Canadians to become involved in a broad and creative campaign of public education. Our report can be a starting point - a basis for study groups, lectures, meetings and exchanges, organized by churches and unions, schools and hospitals, local businesses and national corporations, about what they can do to understand and accommodate Aboriginal people and their concerns.
Remaining passive and silent is not neutrality - it is support for the status quo.
Charting Progress Aboriginal people came before the Commission with a question: Can you promise us that your recommendations won't just gather dust on a shelf? Fine words are all too familiar to Aboriginal people. This time, they want them to be made real.
The Commission's agenda for change is, clearly, a long-term undertaking. It makes sense to monitor progress until those changes are accomplished.
We propose that the federal government set up an Aboriginal Peoples Review Commission to assess the actions of governments in accomplishing the tasks on the agenda for change.
The importance of an Aboriginal Peoples Review Commission will lie in its independence and its ability to focus the attention of legislators and governments on the continuing process of renewal. It should be independent of governments and report direct to Parliament.
Last Words The relationship between Aboriginal and non-Aboriginal people in Canada has long been troubled and recently has shown signs of slipping into more serious trouble. The relationship can most certainly be mended - indeed, turned from a problem into an asset and one of the country's greatest strengths.
The direction change must take is toward freeing Aboriginal people from domination by and dependence on the institutions and resources of governments. The end of dependence is something Aboriginal and non-Aboriginal people alike profoundly desire. It would be quite unacceptable for First Nations, Inuit and Métis peoples to continue to find their autonomy restricted and constrained in the twenty-first century.
Yet renewal of the relationship must be done with justice and generosity. History and human decency demand restoration of fair measures of land, resources and power to Aboriginal peoples. On those foundations, self-respect and self-reliance will grow steadily firmer in Aboriginal communities. In their absence, anger and despair will grow steadily deeper - with conflict the likely result.
What we propose is fundamental, sweeping and perhaps disturbing - but also exciting, liberating, ripe with possibilities.
Aboriginal people must be enabled to function once again as nations. This is a new way of thinking about old and persistent problems. For many years, the watch-word for the progress of Aboriginal people was 'self-government'. But this is only one piece of a larger undertaking - the restoration of nations, not as they were, but as they can be today. Land and economic vitality are essential for successful, hard-working governments. Whole, healthy, hopeful people are more vital still.
The Commission proposes a 20-year agenda for change, encompassing these things and more. In just 20 years, the revitalization of many self-reliant Aboriginal nations can be accomplished, and the staggering human and financial cost of supporting communities unable to manage for themselves will end. From that time forward, the return to the country will continue to grow.
That so much is possible in so short a time is good news for Canadians.
The changes we propose are not modest. We do not suggest tinkering with the Indian Act or launching shiny new programs. What we propose is fundamental, sweeping and perhaps disturbing - but also exciting, liberating, ripe with possibilities.
Nor do we propose a set of lock-step directives. We offer a vision of what is possible and lots of ideas about how to get started. The agenda for change can begin today, and there are many starting places for it. Indeed, it is already getting started, as good ideas take shape and gather momentum in Aboriginal communities from coast to coast to coast.
Yet change must take place at a pace that allows Aboriginal people and nations to work through the pains of rebirth and in a way that encourages non-Aboriginal people to participate in it. Transition is something we must do together.
All of us have a part in securing the new relationship - people and governments, Aboriginal and non-Aboriginal, organizations big and small. We have 20 years of building and experimentation to look forward to - using, for the first time in many decades, all the energies of Aboriginal people as they create and live the dream of a Canada that they can share with others and yet be fully at home.
During that time - and beyond it - we can look forward to a Canada that celebrates Aboriginal heritage and draws strength from Aboriginal peoples as full partners in a renewed federation.
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Why Treaties? BC Treaty Commission
-SEE PRINT OUT!
ARTICLES:
International Law and the Public/Private Distribution
-CAN’T FIND IT!
The Charter of Whiteness: Twenty-Five Years of Maintaining Racial Injustice in the Canadian Criminal Justice System. by David M. Tanovich (2008)
INTRODUCTION
-It is fair to say that some groups such as women and gays and lesbians can point to a number of significant victories ranging from the right of reproductive choice to the right to same-sex marriage. Can the same be said of racial injustice in the criminal justice system?
-Thesis: while there is reason to be optimistic about the possibilities for future reform, the Charter has, to date, had very little impact on racial injustice in Canada.
-We continue to incarcerate Aboriginals and African Canadians at alarming rates,3 racial profiling at our borders and in our streets continues to flourish,4 and the federal government continues to propose legislation that will further entrench the problem.
-Racial justice has not had a chance to grow over the last 25 years because there has been a significant failure of trial and appellate lawyers to engage in race talk in the courts and a failure of the judiciary to adopt appropriate critical race standards when invited to do so.
-The discussion is not meant to criticize or to lay blame but rather to show just how many opportunities we have had to make meaningful reform in this area over the life of the Charter. The message is one of hope for what is possible with the appropriate calibration and imagination.
THE UTILITY OF USING LITIGATION TO ADDRESS RACIAL INJUSTICE IN THE CRIMINAL JUSTICE SYSTEM
-Oppression is far too deeply rooted, the argument goes, to expect a document focused on individual rights and White middle-class judges to make any meaningful structural change.7 And while it is true that there have been significant Charter victories for some marginalized groups, these critics would likely respond that they are largely symbolic in nature, resulting in little or no real change.
-The idea that the democratic or the legislative process will bring anti-racist change to the criminal justice system is sheer folly. There is no evidence over the last decade that it will ever occur given the increased politicization of crime and unconscious nature of systemic
racism.
-As Professor Stuart has noted, “[p]oliticians of all stripes have been unable to resist the political expediency of pandering to the perceived need to toughen penal responses. There are no votes in being soft on crime.”
-In theory, the Charter should have a significant impact.
-This is especially true with respect to racial injustice in the criminal justice system because of the inexorable ties between the rights and freedoms guaranteed under the Charter and the criminal justice system.
-The legal rights in sections 7-15 and the remedial provision that is section 24 are the most litigated Charter rights and the litigation is occurring in the criminal context because of access and motivation. As a general rule, accused have access to the courts to launch a Charter challenge by virtue of access to state-funded legal counsel. And, of course, one would expect that accused are motivated to argue all live issues.
-This is why it is often said that criminal accused act as surrogate litigants to ensure that civil liberties and human rights are respected by the state.
-Indeed, as a result of the racialized litigants who were successful in R. v. Khan, R. v. Brown, R. v. Campbell21 and R. v. Nguyen, we are beginning to see, at least in the context of racial profiling, a greater number of human rights and civil cases where individuals not found with contraband are challenging the conduct of the police. Substantial damages and systemic remedies have been imposed in successful cases.
-Moreover, while systemic racism is present in all social systems, one can reasonably argue that some of the most harmful and lasting effects of racial injustice are caused by the criminal justice system. The collateral effects of over-incarceration and constant surveillance (e.g., racial profiling) on racialized communities are enormous and now well documented.24 They include physical and severe psychological harm (in some cases death), isolation, alienation and mistrust, behaviour changes, breakdown of or damage to family and social networks, and labour market exclusion.
-Indeed, in many ways, colonialism, slavery and segregation are now reproduced through both of these modern-day systems of control and incapacitation.
-There is no question that other legal and extra-legal strategies are necessary in order to ensure implementation of the changes and to fill in the gaps when litigation fails.
-Anti-racist training for all criminal justice actors, the creation of monitoring systems, the creation of more anti-racist actors such as Gladue workers (i.e., those who prepare sentencing reports for Aboriginal offenders), the appointment of more Aboriginal and racialized judges, greater funding for community programs, community mobilization and political lobbying are all examples of strategies that can work together with litigation.
THE PROBLEM IS NOT WITH THE CHARTER BUT WITH THOSE WHO ARGUE AND INTERPRET IT
1. Adjudication and the Failure to Act
-Narrow approaches to judicial review and lack of judicial imagination have played a role in limiting the impact of Charter litigation on racial injustice.
-In a number of key cases addressing issues such as bail, jury selection and racial profiling, courts have refused to adopt critical race standards or arguments when they were advanced:
- R. v. Laws [1998] - The Court did not address the concerns expressed by the Ontario
participation of black and other racialized people on trial juries appear to be the citizenship qualification and the database used to list the names from which jurors are selected” and that “citizenship restriction for jurors seems particularly anomalous since no such restriction applies to justices of the peace, lawyers, or judges, all of whom are familiar with community standards.”
-Nor did the Court consider the Commission’s recommendation that “... the Juries Act be amended to permit landed immigrants to serve as jurors if they have lived in Canada for three years and are otherwise eligible.”
-The Court also did not consider the broader section 15(1) argument that there is a miscarriage of justice any time a key element of the trial process is implicated in racial discrimination.
- R. v. Hall [2002] - The Criminal Lawyers’ Association of Ontario (“CLA”), relying on the empirical work of the Ontario Systemic Racism Commission, made substantial submissions on the impact of race on bail decisions in a Charter section 11(f) constitutional challenge to section 515(10)(c) of the Criminal Code. The CLA submissions were not considered in either the majority or dissenting opinions.
- Charkaoui v. Canada (Citizenship and Immigration) [2007] — The Canadian Council on American-Islamic Relations (“CAIR-CAN”) and Canadian Muslim Civil Liberties Association (“CMCLA”) argued that the Court should factor in the racial profiling problem when interpreting the constitutionality of provisions enacted in the national security context. They further argued that the security certificate regime under the Immigration and Refugee Protection Act violates section 15(1) of the Charter because it is being applied in a discriminatory manner by targeting Arab and Muslim men and it is creating “a chilling effect among members of a disadvantaged group.” Although the Supreme Court did strike down the security certificate regime, it did not address the racial profiling or equality arguments.
-Relying on its earlier decision in R. v. Church of Scientology of Toronto, the Court of Appeal held that the accused had no standing to vindicate the rights of the jurors. The Court also declined to decide whether his rights had been breached because the issue was raised on appeal for the first time and, in the Court’s view, an insufficient evidentiary record existed.
-What is more troubling perhaps is that the language used by the Court suggests that it only recognized a jurisdiction to review the exercise of race-based peremptory challenges because it was Crown conduct that was involved.
-Justice Sharpe, for the Court, held:
An important part of the jury selection process is the right of both
the Crown and the defence to exercise peremptory challenges. The
very essence of a peremptory challenge is that its exercise requires no
justification or explanation. ...
. . . . .
There is little authority on the extent to which a court can review
the exercise of a peremptory challenge by the Crown. While I do not
think the circumstances of the present call for this court’s intervention,
I would not want these reasons to be read as eliminating the possibility,
as there may well be instances in which it would be appropriate for a
court to do so. There are two important legal principles that lead me to
that view. First is the well-established principle of our law that the Crown
bears a particular responsibility in conducting a criminal prosecution
... It is not appropriate for Crown counsel to seek a conviction at all
costs. ...
. . . . .
The second principle that constrains the discretionary powers of
the Crown is that the Crown must exercise the discretion accorded to it
in conformity to Charter principles and values. ...
2. Hostile Adjudication
-In a number of cases, trial judges have been or appeared hostile when asked to adjudicate a race issue.
-Sometimes the hostility can be implied from the reasoning employed by the Court to dismiss the argument. Other times, the disdain of the trial judge can be implied from the manner in which he or she controls the proceedings. And, in some cases, it is more direct.
-These instances of judicial reluctance and hostility certainly tend to confirm the theory that the composition of the judiciary and inherent conservatism of judicial review are some of the biggest hurdles in using litigation as a political tool of change.
-There is no question that increasing the diversity of the bench is one of the most pressing issues facing the justice system and that it will have a big impact on increasing the cultural competence of the judiciary.
-As for judicial conservatism, while the cases discussed earlier are very troubling, it may still be premature to reach any conclusions given that our courts are not, generally speaking, being asked to develop critical race standards or adjudicate race cases with any regularity.
3. The Sounds of Trial Silence
-With respect to litigation, there has been a large-scale failure of trial lawyers to raise race once critical race standards have been established by the courts. The most cogent evidence of this is the small number of racial profiling cases that have been litigated.
-R v Parks [1993] established a number of propositions about the nature of racial bias that are now capable of being judicially noted.
-They include:
Racism, and in particular anti-black racism, is a part of our community’s
psyche. A significant segment of our community holds overtly racist
views. A much larger segment subconsciously operates on the basis of
negative racial stereotypes. Furthermore, our institutions, including
the criminal justice system, reflect and perpetuate those negative
stereotypes. ...
The criminal trial milieu may also accentuate the role of racial
bias in the decision-making process. Anti-black attitudes may connect
blacks with crime and acts of violence. A juror with such attitudes who
hears evidence describing a black accused as a drug dealer involved in
an act of violence may regard his attitudes as having been validated by
the evidence. That juror may then readily give effect to his or her
preconceived negative attitudes towards blacks without regard to the
evidence and legal principles ..
-As Binnie J. observed in R v Spence [2005],
“Parks show[s] that a black accused has reason to fear that some members of the ... community may be wrongly influenced by the colour of his or her skin.”
-A similar observation was made in R. v. Williams [1998] in relation to Aboriginals.
-Justice McLachlin, as she then was, for the Court held
“[r]acism against aboriginals includes stereotypes that relate to credibility, worthiness and criminal propensity.”
-In other words, it is open for counsel to develop an argument that systemic racism and stereotyping is a relevant factor to take into account when assessing the admissibility of
character evidence and criminal record in a case involving a racialized accused.
-In other words, it is possible to argue for the creation of a “race shield” provision much like the rape shield provision that operates in sexual assault cases to prevent unwarranted and damaging stereotypes from infecting the criminal trial
-Why are trial lawyers not raising race when it is appropriate to do so?
-While the perception of judicial hostility is an easy scapegoat for
many lawyers.
-With respect to “not seeing the issue”, this occurs because, for the most part, Whites do not see themselves as a race or everyday conduct as the product of White privilege.
-As Professor Coker so aptly puts it:
The third problem for confronting white complacency (or encouragement)
of race disparities in the criminal justice is the invisibility (to whites)
of white privilege. Whites seldom think of themselves through the lens of
race; whiteness is invisible to most whites. Rather, whites see themselves
and other whites as individuals. Because they cannot see the privilege
that protects them from police maltreatment and suspicion, they have
difficulty believing that such treatment is not in some way invited or
provoked when it happens to others
4. The Sounds of Appellate Silence
-On a number of occasions, appellate lawyers have also failed to raise the issue of race on appeal.
-For example, no argument was made in R. v. Law [2002], despite uncontradicted evidence from one of the officers that amounted to racial profiling.
-The recent case of R. v. Harris [2007] provides a good example of where racial profiling could have been raised on appeal for the first time.
-In Harris, the officer stopped a vehicle for a purported improper turn with Harris, an African Canadian, in the front passenger seat.96. The officer asked Harris for identification. While Harris was not wearing a seatbelt, the trial judge concluded, based on the officer’s testimony, that the purpose behind the request for identification was to conduct a Canadian Police Information Centre (“CPIC”) check. The check was to determine, in his words, “whether persons were on probation or bail, or whether they were under some ‘level of surveillance’”. The officer testified that this was a routine practice.
-When looked at with the proper social context lens of racial profiling, these facts cried out for a finding of racially biased policing. It is rare that the circumstantial evidence of heightened scrutiny will be stronger.
-The officer’s testimony that he always asked passengers for identification in order to conduct a CPIC check during a routine traffic stop could reasonably have been rejected.
-It is simply not credible and not consistent with the conduct of a reasonable police officer.
-Alternatively, and even more troubling, is that it may in fact be true because the officer stops a disproportionately high number of racialized drivers. Either way, it was testimony that was not strong enough to rebut the circumstantial evidence, especially bearing in mind that the standard of proof is on a balance of probabilities.
-While appellate lawyers may be constrained in alleging racial profiling for the first time on appeal in the absence of a fresh evidence application, they face no such impediment in raising race in other contexts for the first time on appeal.
-Similarly, when assessing the seriousness of a Charter breach under section 24(2), an appellate court can consider, especially when it is deciding whether to exclude afresh, the extent to which the impugned conduct will have a disproportionate impact on racialized communities and the measures taken by the police to address systemic problems including racial profiling. This could be done even in the absence of a specific finding of racial profiling
-BUT, it should be noted that simply pointing out the disproportionate impact without also raising the sufficiency of the measures taken by the police to address the problem
may not be enough.
CONCLUSION
-This refusal of judges to act and lack of race consciousness by lawyers are having a direct impact on the ability of the Charter to remedy racial injustice.
-We can see this by examining two of the bright spots: race-based challenges for cause and the recognition of the existence of racial profiling by our courts.
-With respect to challenges for cause, there is no question that R. v. Parks stands out as one of the most significant Charter race cases.
-The cases that followed such as R. v. Williams and R. v. Koh have established that Aboriginal and all racialized accused are entitled to challenge prospective jurors for racial bias as of right under section 638(1)(b) of the Criminal Code.
-But the utility of Parks and Williams has been limited by the failure of the courts to permit a more sophisticated manner of questioning.
-Judging the impartiality of a prospective juror on his or her yes or no answer to a question which simply asks whether the juror believes that he or she can be impartial in a case with a Black or Aboriginal accused is not sufficient.
- It is time to relitigate this issue.
-Similarly, to permit lawyers to use race-based peremptory challenges and not to give accused standing to argue the section 15(1) rights of prospective jurors is simply to close one’s eyes and further enable racism in the justice system.
-With respect to racial profiling, while it is true that the recent decisions from our courts and human rights tribunals are significant, the standards they have imposed are having little effect, in part, because of other sections 8, 9 and 24(2) cases which limit their application.
-For example, section 9 is only triggered upon a detention and the courts have applied a narrow approach to street-level detentions with little consideration of the relevance of race on the issue of psychological detention.
-As the Supreme Court held in R. v. Mann [2004],
“... the police cannot be said to ‘detain’, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview.”
-Hopefully, the Court will reconsider its approach when it decides R. v. Grant[2006].
-It would do well to consider the reasoned judgments in R. v. Griffiths [2003]; R. v. Pinto [2003]; and, R. v. Savory [2002], all of which employed a critical race perspective on this issue.
-These cases recognize that it is unreasonable to conclude that an African Canadian or Aboriginal would feel free to walk away from the police given the history of police violence and racial profiling in their communities.
-Moreover, section 8 can only be advanced where the individual has standing (i.e., reasonable expectation of privacy) and again courts have adopted a narrow approach to this issue as we saw in R. v. Belnavis [1997]
-This issue is again before the Supreme Court in R. v. Brown [2006] in the context of the use of dogs to sniff for drugs. This is a critical issue because the use of dogs and other tactics such as securing consent to search by Operation Pipeline/Jetway/Convoy, a RCMP drug interdiction program, are having a disproportionate impact on racialized individuals.
-And finally, as noted earlier, under section 24(2), the failure to raise race has too easily allowed courts to rely on good faith and the seriousness of gun and drug offences in not excluding evidence obtained in violation of the Charter.
-This is what is happening in the Ontario Court of Appeal in cases like R. v. Grant [2006] R. v. Harris [2007] and now R. v. B. (L.) [2007]
-As Moldaver J. put it in R. v. B. (L.):
This case involves a loaded handgun in the possession of a student
on school property. Conduct of that nature is unacceptable without
exception. It is something that Canadians will not tolerate. It conjures
up images of horror and anguish the likes of which few could have
imagined twenty-five years ago when the Charter first came to being.
Sadly, in recent times, such images have become all too common --
children left dead and dying; families overcome by grief and sorrow;
communities left reeling in shock and disbelief.
That is the backdrop of this case and in my view, it provides the
context within which the conduct of the police should be measured ...
-While the effects of gun violence are indeed tragic, so too are the consequences of racial profiling. That too was a backdrop of the case, one that was not raised and so not considered by the Court.
-It is interesting that the Court was prepared to take account of the effects of gun violence, even though there was no evidence before it, but not of racial profiling in Toronto because “no such allegations have been made”.
-And so, as these examples illustrate, engaging in race talk and developing critical race standards are critical because colour-blind due process standards are working disproportionately to the disadvantage of racialized groups.
-That is the future of Charter litigation in this country.
-There is no question that what lies ahead will be difficult. There is every reason, however, to be optimistic. Lawyers and judges are committed to the pursuit of justice and with a greater understanding of what needs to be done and commitment to getting it done, we may begin to see significant change.
_________________________________________________________________________________________
2. SOURCES OF LAW:
ARTICLES:
Bijuralism and Harmonization: Genesis. Department of Justice Canada.
-SEE PRINT OUT!
A Hesitant Embrace: Baker and the Application of International Law in Canadian Courts in David Dyzenhaus (ed.), The Unity of Public Law, Hart Publishing 2004
-GOOGLE BOOKS!
5. RELATIONSHIP OF ABORIGINAL PEOPLES TO THE CANADIAN STATE: SELECTED TOPICS:
ARTICLES:
The Crown's Fiduciary Relationship with Aboriginal Peoples. By Mary C. Hurley. (2002)
Background Canada’s Aboriginal peoples have always held a unique legal and constitutional position. In the Royal Proclamation of 1763, often referred to as the “Magna Carta of Indian Rights,” the colonial British Crown found it just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds.
Emphasizing the Crown’s concern with the “great Frauds and Abuses” committed by purchasers of Aboriginal lands, the Royal Proclamation reserved to the Crown the exclusive right to negotiate cessions (giving up) of Aboriginal title. A century later, subsection 91(24) of the Constitution Act, 1867 granted the federal Parliament legislative authority over “Indians, and Lands Reserved for the Indians.” Surrenders and designations of reserve land under the Indian Act, the principal vehicle for the exercise of federal jurisdiction over “status Indians” since 1876, reflect the “protective” provisions of the Royal Proclamation. In practice, pre- and post-Confederation federal governments negotiated surrenders of vast Aboriginal territories in major treaties concluded throughout the 19th and early 20th centuries, largely in Ontario and the western provinces excluding British Columbia. Finally, section 35 of the Constitution Act, 1982 recognizes and affirms “existing aboriginal and treaty rights” of Canada’s Aboriginal peoples, defined as including the “Indian, Inuit and Métis peoples.”
In R. v. Van der Peet (1996), the Supreme Court of Canada commented that
the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact … above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status. (emphasis in original)
Judicial Interpretation Hence, a “fiduciary relationship” is one in which someone in a position of trust has “rights and powers which he is bound to exercise for the benefit” of another. Such relationships include those between trustees and their beneficiaries, solicitors and their clients, and so forth.
The Supreme Court of Canada has adapted these largely private law concepts to the context of Crown-Aboriginal relations. The Court’s landmark 1984 decision Guerin v. R. (1984) established that the relationship could or did entail legal consequences.
Guerin found that:
- the fiduciary relationship is rooted in the concept of Aboriginal title, coupled with the requirement, outlined above, that the Aboriginal interest in land may be alienated only via surrender to the Crown;
- this requirement, which places the Crown between the Aboriginal group and third parties to prevent exploitation, gives the Crown discretion to decide the Aboriginal interest, and transforms its obligation into a fiduciary one so as to regulate Crown conduct when dealing with the land for the Aboriginal group;
- in the unique Crown-Aboriginal relationship, the fiduciary obligation owed by the Crown is sui generis, or one of a kind.
Sparrow determined that:
- the “general guiding principle” for section 35 is that “the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and aboriginals is trust-like, rather than adversarial, and contemporary recognition and affirmation of aboriginal rights must be defined in light of this historic relationship”;
- "the honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the [infringing] legislation or action in question can be justified”;
- “[t]he justificatory standard to be met may place a heavy burden on the Crown,” while inquiries such as whether the infringement has been minimal, whether fair compensation has been available, and whether the affected Aboriginal group has been consulted may also be included in the justification test.
“[i]n light of the Crown’s unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights … in the absence of some explicit guidance.”
In Delgamuukw v. B.C.(1997), the Court ruled that the degree to which the fiduciary duty requires scrutiny of infringing measures varies according to the nature of the Aboriginal right at issue.
In the context of Aboriginal title, the Court expanded in particular upon the Crown’s obligation to consult affected Aboriginal group(s), finding that the consultation
“must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue.”
Delgamuukwalso stated that under section 35,
“the Crown is under a moral, if not a legal, duty to enter into and conduct … negotiations [with Aboriginal peoples] in good faith.”
In Wewaykum Indian Band v. Canada (2002), a non-section 35 decision, the Court sought to further clarify certain aspects of the Crown-Aboriginal fiduciary relationship and the scope of obligations arising under it, noting the post-Guerin “flood of ‘fiduciary duty’ claims … across a whole spectrum of possible complaints.”
The Wewaykum ruling confirmed that:
- fiduciary obligations are not restricted to section 35 rights or to existing reserves: they come into play “to facilitate supervision of the high degree of discretionary control gradually assumed by the Crown over the lives of aboriginal peoples”;
- the fiduciary duty “does not exist at large.” Because not all obligations between the parties to a fiduciary relationship are necessarily of a fiduciary nature, the focus should be on “the particular obligation or interest [in] dispute and whether or not the Crown had assumed discretionary control … sufficient to ground a fiduciary obligation”;
- rather than providing a “general indemnity,” the content of the Crown’s fiduciary duty “varies with the nature and importance of the interest sought to be protected”;
- the Crown is not an ordinary fiduciary and is obliged, depending on the context, to have regard to the interests of many parties, not just the Aboriginal interest.
Extra-Judicial Considerations The 1996 Report of the Royal Commission on Aboriginal Peoples (RCAP) saw the fiduciary relationship as originating in treaties and other historical links, describing it in conceptual terms that differ from those expressed by the courts:
Because of this relationship, the Crown acts as the protector of the sovereignty of Aboriginal peoples within Canada and as guarantor of their Aboriginal and treaty rights. This fiduciary relationship is a fundamental feature of the constitution of Canada.
The Report emphasized that, although the provinces and territories are also bound by fiduciary obligation(s), a position that appears consistent with the emerging jurisprudence in the area, Parliament has primary jurisdiction in relation to Aboriginal peoples under subsection 91(24) of the Constitution Act, 1867:
The federal government cannot, consistent with its fiduciary obligation, sit on its hands in its own jurisdiction while treaties are broken, Aboriginal autonomy is undermined, and Aboriginal lands are destroyed.
The RCAP was critical of past and current governments’ performance of their fiduciary role; many recommendations reflect its view that government needs to fulfil this role more positively through a variety of measures, including broader recognition of the Aboriginal peoples to whom the duty is owed.
The federal government has not issued a comprehensive official policy in this area. Its approach identifies two principal categories of fiduciary obligations for government managers to take into account, based on the Guerin and Sparrow decisions.
àGuerin-type obligations arise in situations where the Crown has a duty to act in the interests of an Aboriginal group and has discretionary power in the matter (for example, in connection with the surrender of reserve land).
àSparrow-type obligations arise when the Crown must respect constitutionally protected Aboriginal or treaty rights and justify interferences with those rights.
Federal guidelines also underscore the honour of the Crown as an additional key element to be maintained in relations with Aboriginal peoples. The government document differentiates between the fiduciary relationship and fiduciary obligations, such that some Crown activities affecting Aboriginal peoples that fall within the fiduciary relationship would not necessarily give rise to legally enforceable fiduciary obligations.
The Wewaykum decision appears to endorse a similar position.
Explicit or implicit governmental acknowledgement of the Crown-Aboriginal fiduciary relationship may be found in, for example:
- Gathering Strength: Canada’s Aboriginal Action Plan [1997], the federal government’s January 1998 response to the RCAP Report. While not appearing to state the fiduciary relationship directly, the document emphasizes objectives relating to renewed relationships, partnerships, and shared responsibilities;
- section 5.8 of the 1994 Manitoba Framework Agreement Initiative, under which “[t]he Crown’s fiduciary relationship will continue in accordance with judicial decisions, aboriginal rights, constitutional provisions including Section 35 of the Constitution Act, 1982, the Treaties and other laws and sources of law, or any of them”;
- the federal government’s 1995 policy guide on Aboriginal Self-Government, which states that self-government may “change the nature” of the Crown’s “unique, historic, fiduciary relationship” with Canada’s Aboriginal peoples, in that, as Aboriginal institutions assume greater governance responsibilities, Crown responsibilities will lessen accordingly;
- the statement of the Minister of Indian Affairs in the context of 2001 discussions on First Nations Governance, asserting that the initiative would not “eliminate the fiduciary relationship that exists between the Crown and First Nations”;
- the 2002 Provincial Policy for Consultation with First Nations issued by the Government of British Columbia in light of Supreme Court of Canada decisions which recognize the relevance of the fiduciary relationship in the context of potential infringement of Aboriginal rights or title.(23)
Important questions related to implementation of the Crown-Aboriginal fiduciary relationship remain. The application of Supreme Court of Canada decisions confirming the fiduciary relationship has yet to be fully defined in a number of contexts, for example, land claim and self-government negotiations. Similarly, the standard(s) for government conduct that will uphold “the honour of the Crown” in various situations require clarification.
Aboriginal groups and government are frequently at odds in litigation, negotiation, and policy fora, as to the scope of governmental responsibility that flows from the fiduciary relationship. Aboriginal parties generally support a broader view of Crown obligations than the government appears prepared to endorse. Assembly of First Nations’ resolutions attest to unresolved issues regarding many aspects of the current relationship. In April 2000, then National Chief of the Assembly of First Nations Phil Fontaine observed that “DIAND, like the Government of Canada itself, suffers from a schizophrenic personality. It holds and administers fiduciary obligations to our peoples at the same time as it must observe its political obligations to the rest of Canada. … It advocates one moment on our behalf and in the next moment, through the Justice Department, against us.” As the Supreme Court of Canada’s Wewaykum ruling commented, the Crown is not an ordinary fiduciary and may be required to consider multiple interests in some contexts.
Supreme Court of Canada decisions confirm that the fiduciary relationship does have legal and constitutional scope. The concept itself and obligations arising from it are still being developed.
Highlights from the Report of the Royal Commission on Aboriginal Peoples: People to People, Nation to Nation (1996) Note to Readers Each of its five volumes presents the Commission's thoughts and recommendations on a range of interconnected issues. Chapters are devoted to major topics such as treaties, economic development, health, housing, Métis perspec-tives, and the North. Volume 5 draws all the recommendations together in an integrated agenda for change. The five volumes are entitled
1. Looking Forward, Looking Back (pg.13)
2. Restructuring the Relationship (pg.)
3. Gathering Strength (pg.)
4. Perspectives and Realities (pg. )
5. Renewal: A Twenty-Year Commitment (pg. )
A Word From Commissioners Canada is a test case for a grand notion - the notion that dissimilar peoples can share lands, resources, power and dreams while respecting and sustaining their differences. The story of Canada is the story of many such peoples, trying and failing and trying again, to live together in peace and harmony.
But there cannot be peace or harmony unless there is justice. It was to help restore justice to the relationship between Aboriginal and non-Aboriginal people in Canada, and to propose practical solutions to stubborn problems, that the Royal Commission on Aboriginal Peoples was established.
In 1991, four Aboriginal and three non-Aboriginal commissioners were appointed to investigate the issues and advise the government on their findings.
We directed our consultations to one over-riding question: What are the foundations of a fair and honourable relationship between the Aboriginal and non-Aboriginal people of Canada?
There can be no peace or harmony unless there is justice.
We held 178 days of public hearings, visited 96 communities, consulted dozens of experts, commissioned scores of research studies, reviewed numerous past inquiries and reports. Our central conclusion can be summarized simply: The main policy direction, pursued for more than 150 years, first by colonial then by Canadian governments, has been wrong.
Successive governments have tried - sometimes intentionally, sometimes in ignorance - to absorb Aboriginal people into Canadian society, thus eliminating them as distinct peoples. Policies pursued over the decades have undermined - and almost erased - Aboriginal cultures and identities.
This is assimilation. It is a denial of the principles of peace, harmony and justice for which this country stands - and it has failed. Aboriginal peoples remain proudly different.
Assimilation policies failed because Aboriginal people have the secret of cultural survival. They have an enduring sense of themselves as peoples with a unique heritage and the right to cultural continuity.
This is what drives them when they blockade roads, protest at military bases and occupy sacred grounds. This is why they resist pressure to merge into Euro-Canadian society - a form of cultural suicide urged upon them in the name of 'equality' and 'modernization'.
Assimilation policies have done great damage, leaving a legacy of brokenness affecting Aboriginal individuals, families and communities. The damage has been equally serious to the spirit of Canada - the spirit of generosity and mutual accommodation in which Canadians take pride.
Yet the damage is not beyond repair. The key is to reverse the assumptions of assimilation that still shape and constrain Aboriginal life chances - despite some worthy reforms in the administration of Aboriginal affairs.
To bring about this fundamental change, Canadians need to understand that Aboriginal peoples are nations. That is, they are political and cultural groups with values and lifeways distinct from those of other Canadians. They lived as nations - highly centralized, loosely federated, or small and clan-based - for thousands of years before the arrival of Europeans. As nations, they forged trade and military alliances among themselves and with the new arrivals. To this day, Aboriginal people's sense of confidence and well-being as individuals remains tied to the strength of their nations. Only as members of restored nations can they reach their potential in the twenty-first century.
Let us be clear, however. To say that Aboriginal peoples are nations is not to say that they are nation-states seeking independence from Canada. They are collectivities with a long shared history, a right to govern themselves and, in general, a strong desire to do so in partnership with Canada.
The Commission's report is an account...
...of the relationship between Aboriginal and non-Aboriginal people that is a central facet of Canada's heritage.
...of the distortion of that relationship over time.
...of the terrible consequences of distortion for Aboriginal people - loss of lands, power and self-respect.
1) Looking Forward Looking Back After some 500 years of a relationship that has swung from partnership to domination, from mutual respect and co-operation to paternalism and attempted assimilation, Canada must now work out fair and lasting terms of coexistence with Aboriginal people.
The Starting Point
The Commission has identified four compelling reasons to do so:
1) Canada's claim to be a fair and enlightened society depends on it.
2) The life chances of Aboriginal people, which are still shamefully low, must be improved.
3) Negotiation, as conducted under the current rules, has proved unequal to the task of settling grievances.
4) Continued failure may well lead to violence.
Canada as a Fair and Enlightened Society A careful reading of history shows that Canada was founded on a series of bargains with Aboriginal peoples - bargains this country has never fully honoured. Treaties between Aboriginal and non-Aboriginal governments were agreements to share the land.
They were replaced by policies intended to
...remove Aboriginal people from their homelands.
...suppress Aboriginal nations and their governments.
...undermine Aboriginal cultures.
...stifle Aboriginal identity.
It is now time to acknowledge the truth and begin to rebuild the relationship among peoples on the basis of honesty, mutual respect and fair sharing. The image of Canada in the world and at home demands no less.
The foundations of a fair and equitable relationship were laid in our early interaction.
The Life Chances of Aboriginal People The third volume of our report, Gathering Strength, probes social conditions among Aboriginal people.
Aboriginal people's living standards have improved in the past 50 years - but they do not come close to those of non-Aboriginal people:
- Life expectancy is lower.
- Illness is more common.
- Human problems, from family violence to alcohol abuse, are more common too.
- Fewer children graduate from high school.
- Far fewer go on to colleges and universities.
- The homes of Aboriginal people are more often flimsy, leaky and overcrowded.
- Water and sanitation systems in Aboriginal communities are more often inadequate.
- Fewer Aboriginal people have jobs.
- More spend time in jails and prisons.
They seek a range of remedies for these injustices, but most of all, they seek control of their lives.
Failed Negotiations A relationship as complex as the one between Aboriginal and non-Aboriginal people is necessarily a matter of negotiation. But the current climate of negotiation is too often rife with conflict and confrontation, accusation and anger.
Aboriginal negotiators fight for authority and resources sufficient to rebuild their societies and exercise self-government - as a matter of right, not privilege. Non-Aboriginal negotiators strive to protect the authority and resources of Canadian governments and look on transfers to Aboriginal communities as privileges they have bestowed.
Frequent failure to come to a meeting of minds has led to bitterness and mistrust among Aboriginal people, resentment and apathy among non-Aboriginal people.
In our report, we recommend four principles for a renewed relationship - to restore a positive climate at the negotiating table - and a new political framework for negotiations (We discuss the principles at the end of this chapter and the new framework in Chapter 2)
Canada can be a diverse, exciting, productive,
caring country...a country where every child has
an equal opportunity to grow up full of hope
and enthusiasm for the future.
Martha Flaherty
President, Pauktuutit Inuit Women's Organization
Risk of Violence Aboriginal people have made it clear, in words and deeds, that they will no longer sit quietly by, waiting for their grievances to be heard and their rights restored. Despite their long history of peacefulness, some leaders fear that violence is in the wind.
What Aboriginal people need is straightforward, if not simple:
- control over their lives in place of the well-meaning but ruinous paternalism of past Canadian governments
- lands, resources and self-chosen governments with which to reconstruct social, economic and political order
- time, space and respect from Canada to heal their spirits and revitalize their cultures
federal government. We are getting sick and tired of
Commissions. We are getting sick and tired of being
analyzed... We want to see action.
Norman Evans
Pacific Metis Federation
The Ghosts of History Every Canadian will gain if we escape the impasse that breeds confrontation between Aboriginal and non-Aboriginal people across barricades, real or symbolic. But the barricades will not fall until we understand how they were built.
Studying the past tells us who we are and where we came from. It often reveals a cache of secrets that some people are striving to keep hidden and others are striving to tell. In this case, it helps explain how the tensions between Aboriginal and non-Aboriginal people came to be, and why they are so hard to resolve.
Canadians know little about the peaceful and co-operative relationship that grew up between First Peoples and the first European visitors in the early years of contact. They know even less about how it changed, over the centuries, into something less honourable. In our report, we examine that history in some detail, for its ghosts haunt us still.
The ghosts take the form of dishonoured treaties, theft of Aboriginal lands, suppression of Aboriginal cultures, abduction of Aboriginal children, impoverishment and disempowerment of Aboriginal peoples. Yet at the beginning, no one could have predicted these results, for the theme of early relations was, for the most part, co-operation.
The relationship between Aboriginal and non-Aboriginal people evolved through four stages:
- There was a time when Aboriginal and non-Aboriginal people lived on separate continents and knew nothing of one another.
- Following the years of first contact, fragile relations of peace, friendship and rough equality were given the force of law in treaties.
- Then power tilted toward non-Aboriginal people and governments. They moved Aboriginal people off much of their land and took steps to 'civilize' and teach them European ways.
- Finally, we reached the present stage - a time of recovery for Aboriginal people and cultures, a time for critical review of our relationship, and a time for its renegotiation and renewal.
Stage 1:
Separate Worlds Before 1500, Aboriginal societies in the Americas and non-Aboriginal societies in Europe developed along separate paths, in ignorance of one another. The variety in their languages, cultures and social traditions was enormous. Yet on both sides of the Atlantic, independent peoples with evolving systems of government - though smaller and simpler than the nations and governments we know today - flourished and grew.
America, separated from Europe by a wide ocean, was inhabited
by a distinct people, divided into separate nations, independent
of each other and the rest of the world, having institutions of
their own, and governing themselves by their own laws. It is
difficult to comprehend... that the discovery of either by the
other should give the discoverer rights in the country discovered
which annulled the previous rights of its ancient possessors.
Chief Justice John Marshall
United States Supreme Court
Worcester v. Georgia (1832)
In the southeastern region of North America, the Cherokee were organized into a confederacy of some 30 cities - the greatest of which was nearly as large as imperial London when English explorers first set eyes on it. Further south, in Central and South America, Indigenous peoples had carved grand empires out of the mountains and jungles long before Cortez arrived.
The forging and maintaining of these confederacies are evidence of
great political skill...
Bruce Trigger referring to the Huron [Wendat] Confederacy in
The Children of Aataentsic
In northern North America, Aboriginal cultures were shaped by environment and the evolution of technology:
- The plentiful resources of sea and forest enabled west coast peoples to build societies of wealth and sophistication.
- On the prairies and northern tundra, Aboriginal peoples lived in close harmony with vast, migrating herds of buffalo and caribou.
- In the forests of central Canada, Aboriginal peoples harvested wild rice from the marshes and grew corn, squash and beans beside the river banks, supplementing their crops by fishing, hunting and gathering.
- On the east coast and in the far north, the bounty of the sea and land - and their own ingenuity - enabled Aboriginal peoples to survive in harsh conditions.
Whereas it is just and reasonable, and essential to Our Interests and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom we are connected and who live under Our Protection, should not be molested or disturbed in the Possession of such parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved for them, or any of them, as their Hunting Grounds... Royal Proclamation of 1763
Stage 2: Nation-to-Nation Relations Encounters between Aboriginal and non-Aboriginal people began to increase in number and complexity in the 1500s. Early contact unfolded roughly as follows:
- Mutual curiosity and apprehension.
- An exchange of goods, tentative at first, then expanding steadily.
- Barter and trade deals, friendships and intermarriage, creating bonds between individuals and families.
- Military and trade alliances, creating bonds between and among nations.
Cautious co-operation, not conflict, was the theme of this period, which lasted into the eighteenth or nineteenth century, depending on the region. For the most part, Aboriginal and non-Aboriginal people saw each other as separate, distinct and independent. Each was in charge of its own affairs. Each could negotiate its own military alliances, its own trade agreements, its own best deals with the others.
Co-operation was formalized in two important ways:
- In treaties, which were set down in writing by British, French and other European negotiators and solemnized by Aboriginal nations in oral and visual records, including wampum belts.
- In the extraordinary document known as the Royal Proclamation of 1763
European traditions of treaty making date to Roman times, but in the seventeenth century, they took on new importance. They became the means for the newborn states of Europe to control their bickering and warfare - indeed, to end it for long periods. Treaties were a way of recognizing each other's independence and sovereignty and a mark of mutual respect.
In the colonies that became Canada, the need for treaties was soon apparent. The land was vast, and the colonists were few in number. They feared the might of the Aboriginal nations surrounding them. Colonial powers were fighting wars for trade and dominance all over the continent. They needed alliances with Indian nations.
The British colonial government's approach to the treaties was schizophrenic. By signing, British authorities appeared to recognize the nationhood of Aboriginal peoples and their equality as nations. But they also expected First Nations to acknowledge the authority of the monarch and, increasingly, to cede large tracts of land to British control - for settlement and to protect it from seizure by other European powers or by the United States.
Over several hundred years, treaty making has been used to keep the peace and share the wealth of Canada.
The Aboriginal view of the treaties was very different. They believed what the king's men told them, that the marks scratched on parchment captured the essence of their talks. They were angered and dismayed to discover later that what had been pledged in words, leader to leader, was not recorded accurately. They accepted the monarch, but only as a kind of kin figure, a distant 'protector' who could be called on to safeguard their interests and enforce treaty agreements. They had no notion of giving up their land, a concept foreign to Aboriginal cultures.
In my language, there is no word for 'surrender'. There is
no word. I cannot describe 'surrender' to you in my language,
so how do you expect my people to [have] put their X on
'surrender'?
Chief Francois Paulette
Treaty 8 Tribal Council
Yellowknife, Northwest Territories
The Two Row Wampum, a belt commemorating a 1613 treaty between the Mohawk and the Dutch, captures the understanding of Aboriginal peoples - treaties were statements of peace, friendship, sharing or alliance, not submission or surrender:
A bed of white wampum symbolizes the purity of the agreement. There are two rows of purple, and those two rows represent the spirit of our ancestors. Three beads of wampum separating the two purple rows symbolize peace, friendship and respect. The two rows of purple are two vessels travelling down the same river together. One, a birch bark canoe, is for the Indian people, their laws, their customs and their ways. The other, a ship, is for the white people and their laws, their customs and their ways. We shall each travel the river together, side by side, but in our own boat. Neither of us will try to steer the other's vessel.
The Royal Proclamation The Royal Proclamation of 1763 was a defining document in the relationship between Aboriginal and non-Aboriginal people in North America. Issued in the name of the king, the proclamation summarized the rules that were to govern British dealings with Aboriginal people - especially in relation to the key question of land.
It is a complex legal document, but the central messages of the proclamation are clear in its preamble. Aboriginal people were not to be "molested or disturbed" on their lands. Transactions involving Aboriginal land were to be negotiated properly between the Crown and "assemblies of Indians". Aboriginal lands were to be acquired only by fair dealing: treaty, or purchase by the Crown.
The proclamation portrays Indian nations as autonomous political entities, living under the protection of the Crown but retaining their own internal political authority. It walks a fine line between safeguarding the rights of Aboriginal peoples and establishing a process to permit British settlement. It finds a balance in an arrangement allowing Aboriginal and non-Aboriginal people to divide and share sovereign rights to the lands that are now Canada.
More than a hundred years later, in 1867, the arrangement we know as Confederation would also allow for power sharing among diverse peoples and governments. But the first confederal bargain was with First Peoples.
Stage 3: Respect Gives Way to Domination In the 1800s, the relationship between Aboriginal and non-Aboriginal people began to tilt on its foundation of rough equality. The number of settlers was swelling, and so was their power. As they dominated the land, so they came to dominate its original inhabitants. They gained power as a result of four changes that were transforming the country:
1. The population mix was shifting to favour the settlers. Immigration continued to add to their numbers, while disease and poverty continued to diminish Aboriginal nations. By 1812, immigrants outnumbered Indigenous people in Upper Canada by a factor of ten to one.
2. The fur trade was dying, and with it the old economic partnership between traders and trappers. The new economy was based on timber, minerals, agriculture. It needed land - not labour - from Aboriginal people, who began to be seen as 'impediments to progress' instead of valued partners.
3. Colonial governments in Upper and Lower Canada no longer needed Aboriginal nations as military allies. The British had defeated all competitors north of the 49th parallel. South of it, the United States had fought for self-government and won. The continent was at peace.
4. An ideology proclaiming European superiority over all other peoples of the earth was taking hold. It provided a rationale for policies of domination and assimilation, which slowly replaced partnership in the North American colonies. These policies increased in number and bitter effect on Aboriginal people over many years and several generations.
History has not been written yet from the Indian point of view.
Violet Soosay
Montana First Nation community
Hobbema, Alberta
Ironically, the transformation from respectful coexistence to domination by non-Aboriginal laws and institutions began with the main instruments of the partnership: the treaties and the Royal Proclamation of 1763. These documents offered Aboriginal people not only peace and friendship, respect and rough equality, but also 'protection'.
Protection was the leading edge of domination. At first, it meant preservation of Aboriginal lands and cultural integrity from encroachment by settlers. Later, it meant 'assistance', a code word implying encouragement to stop being Aboriginal and merge into the settler society.
Protection took the form of compulsory education, economic adjustment programs, social and political control by federal agents, and much more. These policies, combined with missionary efforts to civilize and convert Indigenous people, tore wide holes in Aboriginal cultures, autonomy and feelings of self-worth.
[The Indian Act] has...deprived us of our independence, our dignity,
our self-respect and our responsibility.
Kaherine June Delisle
Kanien'kehaka First Nation
Kahnawake, Quebec
Policies of Domination and Assimilation No Canadian acquainted with the policies of domination and assimilation wonders why Aboriginal people distrust the good intentions of non-Aboriginal people and their governments today.
- Colonial and Canadian governments established 'reserves' of land for Aboriginal people - usually of inadequate size and resources - with or without treaty agreements. The system began in 1637, with a Jesuit settlement at Sillery in New France. Reserves were designed to protect Aboriginal people and preserve their ways, but operated instead to isolate and impoverish them.
- In 1857, the Province of Canada passed an act to "Encourage the Gradual Civilization of the Indian Tribes". It provided the means for Indians "of good character" (as determined by a board of non-Aboriginal examiners) to be declared, for all practical purposes, non-Indian. As non-Indians, they were invited to join Canadian society, bringing a portion of tribal land with them. Only one man, Elias Hill, a Mohawk from the Six Nations, is known to have accepted the invitation.
- By the beginning of the nineteenth century, significant numbers of Métis people were living in almost all parts of Canada. Their heritage of Aboriginal, French and British cultures, combined with their experience as intermediaries between the factions competing for trade and territory, resulted in their emergence as distinct peoples with their own culture, institutions and lifeways.
but for tomorrow, and not only for you but for your children
born and unborn. And the promises we make will be carried out
as long as the sun shines above and the water flows in the ocean.
Alexander Morris, Lieutenant Governor of Manitoba and the
North-West Territories
Address to the Cree and Salteaux, Fort Qu'Appelle (1874)
But British and Canadian policy toward Métis people was dismissive. They were not 'Indians', and they were not legitimate settlers. The usual practice was to declare them 'squatters' and edge them off the land they were farming when preferred settlers moved in.
Under Louis Riel, the Métis of the Red River Valley struggled for their own land and government. They were promised both in the Manitoba Act of 1870, but those promises were later denied. Many moved further west and north, where they again fought for land and political recognition. In the spring of 1885 their forces were crushed at Batoche by a military expedition sent by Ottawa. The people were dispersed again, and to this day, their claims for a secure land base and their own forms of government have not been settled.
Our Indian legislation generally rests on the principle
that the Aborigines are to be kept in a condition of tutelage
and treated as wards or children of the state... It is
clearly our wisdom and our duty, through education and other
means, to prepare him for a higher civilization by encouraging
him to assume the privileges and responsibilities of full
citizenship.
Annual Report of the Department of the Interior (1876)
- Confederation, declared in 1867, was a new partnership between English and French colonists to manage lands and resources north of the 49th parallel. It was negotiated without reference to Aboriginal nations, the first partners of both the French and the English. Indeed, newly elected Prime Minister John A. Macdonald announced that it would be his government's goal to "do away with the tribal system, and assimilate the Indian people in all respects with the inhabitants of the Dominion."
- The British North America Act, young Canada's new constitution, made "Indians, and Lands reserved for the Indians" a subject for government regulation, like mines or roads. Parliament took on the job with vigour - passing laws to replace traditional Aboriginal governments with band councils with insignificant powers, taking control of valuable resources located on reserves, taking charge of reserve finances, imposing an unfamiliar system of land tenure, and applying non-Aboriginal concepts of marriage and parenting.
- In 1884, the potlatch ceremony, central to the cultures of west coast Aboriginal nations, was outlawed. In 1885, the sun dance, central to the cultures of prairie Aboriginal nations, was outlawed. Participation was a criminal offence.
- In 1885, the Department of Indian Affairs instituted a pass system. No outsider could come onto a reserve to do business with an Aboriginal resident without permission from the Indian agent. In many places, the directives were interpreted to mean that no Aboriginal person could leave the reserve without permission from the Indian agent. Reserves were beginning to resemble prisons.
- In 1849, the first of what would become a network of residential schools for Aboriginal children was opened in Alderville, Ontario. Church and government leaders had come to the conclusion that the problem (as they saw it) of Aboriginal independence and 'savagery' could be solved by taking children from their families at an early age and instilling the ways of the dominant society during eight or nine years of residential schooling far from home.
- During this stage in the changing relationship, Canadian governments moved Aboriginal communities from one place to another at will. If Aboriginal people were thought to have too little food, they could be relocated where game was more plentiful or jobs might be found. If they were suffering from illness, they could be relocated to new communities where health services, sanitary facilities and permanent housing might be provided. If they were in the way of expanding agricultural frontiers, or in possession of land needed for settlement, they could be relocated 'for their own protection'. If their lands contained minerals to be mined, forests to be cut, or rivers to be dammed, they could be relocated 'in the national interest'.
- In each world war, more than 3,000 registered Indians and unrecorded numbers of Inuit, Métis and non-status Indian people volunteered for the Canadian Armed Forces. Their contributions of life, limb and money were appreciated at home, and most of the volunteers found acceptance on the battlefield. Hundreds lost their lives there or were wounded.
- Treaties were still the chosen means of managing the relationship. But the treaty process was increasingly strained by conflicting interpretations of their purpose.
To induce First Nations to sign, colonial negotiators continued to assure them that treaty provisions were not simply agreed, but guaranteed to them - for as long as the sun shone and the rivers flowed.
Stage 4: Renewal and Renegotiation Policies of domination and assimilation battered Aboriginal institutions, sometimes to the point of collapse. Poverty, ill health and social disorganization grew worse. Aboriginal people struggled for survival as individuals, their nationhood erased from the public mind and almost forgotten by themselves.
Resistance to assimilation grew weak, but it never died away. In the fourth stage of the relationship, it caught fire and began to grow into a political movement. One stimulus was the federal government's White Paper on Indian policy, issued in 1969.
The fact is that when the settlers came, the Indians
were there, organized in societies and occupying the land
as their forefathers had done for centuries.
This is what Indian title means...
Supreme Court of Canada
Calder v. Attorney General
of British Columbia (1973)
The White Paper proposed to abolish the Indian Act and all that remained of the special relationship between Aboriginal people and Canada - offering instead what it termed equality. First Nations were nearly unanimous in their rejection. They saw this imposed form of 'equality' as a coffin for their collective identities - the end of their existence as distinct peoples. Together with with Inuit and Métis, they began realize the full significance of their survival in the face of sustained efforts to assimilate them. They began to see their struggle as part of a worldwide human rights movement of Indigenous peoples. They began to piece together the legal case for their continuity as peoples - nations within Canada - and to speak out about it.
They studied their history and found evidence confirming that they have rights arising from the spirit and intent of their treaties and the Royal Proclamation of 1763. They took heart from decisions of Canadian courts, most since 1971, affirming their special relationship with the Crown and their unique interest in their traditional lands. They set about beginning to rebuild their communities and their nations with new-found purpose.
The relationship between the government and Aboriginals
is trust-like rather than adversarial, and... contemporary
recognition and affirmation of Aboriginal rights must be
defined in light of this historic relationship.
Supreme Court of Canada
R. v. Sparrow (1990)
The strong opposition of Aboriginal people to the White Paper's invitation to join mainstream society took non-Aboriginal people by surprise. The question of who Aboriginal people are and what their place is in Canada became central to national debate.
A dozen years of intense political struggle by Aboriginal people, including appeals to the Queen and the British Parliament, produced an historic breakthrough. "Existing Aboriginal and treaty rights" were recognized in the Constitution Act, 1982.
This set the stage for profound change in the relationship among the peoples of Canada, a change that most governments have nevertheless found difficult to embrace.
The Way Forward The policies of the past have failed to bring peace and harmony to the relationship between Aboriginal peoples and other Canadians. Equally, they have failed to bring contentment or prosperity to Aboriginal people.
In poll after poll, Canadians have said that they want to see justice done for Aboriginal people, but they have not known how. In the following chapters, we outline a powerful set of interlinked ideas for moving forward.
In the years since the White Paper, Canadian governments have been prodded into giving Aboriginal communities more local control. They have included more Aboriginal people in decision making and handed over bits and pieces of the administrative apparatus that continues to shape Aboriginal lives.
But governments have so far refused to recognize the continuity of Aboriginal nations and the need to permit their decolonization at last. By their actions, if not their words, governments continue to block Aboriginal nations from assuming the broad powers of governance that would permit them to fashion their own institutions and work out their own solutions to social, economic and political problems. It is this refusal that effectively blocks the way forward.
The new partnership we envision is much more than a political or institutional one. It must be a heartfelt commitment among peoples to live together in peace, harmony and mutual support.
For this kind of commitment to emerge from the current climate of tension and distrust, it must be founded in visionary principles. It must also have practical mechanisms to resolve accumulated disputes and regulate the daily workings of the relationship.
We propose four principles as the basis for a renewed relationship: recognition, respect, sharing and responsibility
We propose four principles as the basis of a renewed relationship.
1. Recognition
The principle of mutual recognition calls on non-Aboriginal Canadians to recognize that Aboriginal people are the original inhabitants and caretakers of this land and have distinctive rights and responsibilities flowing from that status. It calls on Aboriginal people to accept that non-Aboriginal people are also of this land now, by birth and by adoption, with strong ties of love and loyalty. It requires both sides to acknowledge and relate to one another as partners, respecting each other's laws and institutions and co-operating for mutual benefit.
2. Respect
The principle of respect calls on all Canadians to create a climate of positive mutual regard between and among peoples. Respect provides a bulwark against attempts by one partner to dominate or rule over another. Respect for the unique rights and status of First Peoples, and for each Aboriginal person as an individual with a valuable culture and heritage, needs to become part of Canada's national character.
3. Sharing
The principle of sharing calls for the giving and receiving of benefits in fair measure. It is the basis on which Canada was founded, for if Aboriginal peoples had been unwilling to share what they had and what they knew about the land, many of the newcomers would not have lived to prosper. The principle of sharing is central to the treaties and central to the possibility of real equality among the peoples of Canada in the future.
4. Responsibility
Responsibility is the hallmark of a mature relationship. Partners in such a relationship must be accountable for the promises they have made, accountable for behaving honourably, and accountable for the impact of their actions on the well-being of the other. Because we do and always will share the land, the best interests of Aboriginal and non-Aboriginal people will be served if we act with the highest standards of responsibility, honesty and good faith toward one another.
The Six Nations of the Iroquois Confederacy have described
the spirit of the relationship as they see it in the image
of a silver covenant chain. "Silver is sturdy and does not
easily break," they say. "It does not rust and deteriorate
with time. However, it does become tarnished. So when we come
together, we must polish the chain, time and again, to
restore our friendship to its original brightness."
Chief Jacob E. Thomas
Cayuga First Nation
Haudenosaunee (Iroquois) Confederacy
We propose that treaties be the mechanism for turning principles into practice. Over several hundred years, treaty making has been used to keep the peace and share the wealth of Canada. Existing treaties between Aboriginal and non-Aboriginal people, however dusty from disuse, contain specific terms that even now help define the rights and responsibilities of the signatories toward one another.
We maintain that new and renewed treaties can be used to give substance to the four principles of a just relationship. How they can be used is explained in Chapter 2.
2) Restructuring the Relationship To restore the essence of the early relationship between Aboriginal and settler societies described in Chapter 1, the elements of partnership must be recreated in modern form. The starting point for this transformation is recognition of Aboriginal nationhood.
Aboriginal Peoples as Nations The arguments for recognizing that Aboriginal peoples are nations spring from the past and the present. They were nations when they forged military and trade alliances with European nations. They were nations when they signed treaties to share their lands and resources. And they are nations today - in their coherence, their distinctiveness and their understanding of themselves.
Recognition of Aboriginal nationhood poses no threat to Canada or its political and territorial integrity. Aboriginal nations have generally sought coexistence, co-operation and harmony in their relations with other peoples. What they seek from Canada now is their rightful place as partners in the Canadian federation.
This chapter shows how the foundations of Aboriginal nationhood were undone and how they can be rebuilt.
The Case for Self-Government Aboriginal people trace their existence and their systems of government back as far as memory and oral history extend. They say that the ultimate source of their right to be self-governing is the Creator. The Creator placed each nation on its own land and gave the people the responsibility of caring for the land - and one another - until the end of time.
Three other sources of the right of self-government apply to Aboriginal peoples:
- In international law, which Canada respects, all peoples have a right of self-determination. Self-determination includes governance, so Indigenous peoples are entitled to choose their own forms of government, within existing states.
- In Canadian history, the colonial powers won no 'rights of conquest', for there was no conquest. Nor was North America terra nullius, free for the taking, as was claimed later. In most of their early dealings with Indigenous peoples in what is now Canada, the colonial powers recognized them as self-governing nations - codifying their recognition in treaties and in the Royal Proclamation of 1763.
- Aboriginal peoples' right of self-government within Canada is acknowledged and protected by the constitution. It recognizes that Aboriginal rights are older than Canada itself and that their continuity was part of the bargain between Aboriginal and non-Aboriginal people that made Canada possible.
We believe Aboriginal people must be recognized as partners in the complex arrangements that make up Canada. Indeed, we hold that Aboriginal governments are one of three orders of government in Canada - federal, provincial/territorial, and Aboriginal. The three orders are autonomous within their own spheres of jurisdiction, thus sharing the sovereignty of Canada as a whole. Aboriginal governments are not like municipal governments, which exercise powers delegated from provincial and territorial governments.
Shared sovereignty is an important feature of Canadian federalism. It permitted the early partnership between Aboriginal and non-Aboriginal people, and later it permitted the union of provinces that became Canada.
Canadian governments are coming gradually to accept the idea of shared sovereignty and Aboriginal self-government. But they have been loath to hand over the full range of powers needed by genuinely self-governing nations or the resources needed to make self-government a success.
Rebuilding Aboriginal Nations We have concluded that the right of self-government cannot reasonably be exercised by small, separate communities, whether First Nations, Inuit or Métis. It should be exercised by groups of a certain size - groups with a claim to the term 'nation'.
The problem is that the historical Aboriginal nations were undermined by disease, relocations and the full array of assimilationist government policies. They were fragmented into bands, reserves and small settlements. Only some operate as collectivities now. They will have to reconstruct themselves as nations.
Self-government is a right they never surrendered and that they want to exercise once more
We believe strongly that membership in Aboriginal nations should not be defined by race. Aboriginal nations are political communities, often comprising people of mixed background and heritage. Their bonds are those of culture and identity, not blood. Their unity comes from their shared history and their strong sense of themselves as peoples.
The work of reconstructing their nations poses great challenges for Aboriginal people. They will need to
- reconnect communities split apart by years of band or settlement administration
- develop constitutions, design structures, and train personnel to make laws and administer decisions
- negotiate new relations with the other two orders of government in Canada
To support the rebuilding of Aboriginal nations and shift from paternalistic policies to partnership relations, we propose a bold starting place: a new Royal Proclamation, issued by the Monarch as Canada's head of state and guardian of the rights of Aboriginal peoples.
A new proclamation would signal, in dramatic terms, a new day for Aboriginal people. Its all-important preamble should contain these elements:
- Reaffirmation of Canada's respect for Aboriginal peoples as distinct nations.
- Acknowledgement of harmful actions by past governments, which deprived Aboriginal peoples of their lands and resources and interfered with family life, spiritual practices and governance structures.
- A statement placing the relationship on a footing of respect, recognition, sharing and mutual responsibility - thus ending the cycle of blame and guilt and freeing Aboriginal and non-Aboriginal people to embrace a shared future.
- Affirmation of the right of Aboriginal peoples to fashion their own lives and control their own governments and lands - not as a grant from other Canadian governments, but as a right inherent in them as peoples who have occupied these lands from time immemorial.
- Acknowledgement that justice and fair play are essential for reconciliation between Aboriginal and non-Aboriginal people and a commitment by Canada to create institutions and processes to strive for justice.
Traditionally, there were checks and balances that were functional and appropriate for the Anishnabek. The leaders were servants to the people and upheld the values that were inherent in the community. Accountability was not a goal or aim of the system; rather it was embedded in the very make-up of the system.
Union of Ontario Indians
Brief to the Commission (1993)
Of particular importance among these laws is an Aboriginal Nations Recognition and Government Act to give the government of Canada a mechanism for acknowledging established Aboriginal nations once their processes of internal reconstruction and institution building are complete.
To prepare for the new start, the federal government will need to undergo some reorganization of its own:
- The Department of Indian Affairs and Northern Development and the ministerial position that goes with it should be eliminated.
- A new senior cabinet position, the Minister for Aboriginal Relations, and a new Department of Aboriginal Relations should be assigned to negotiate and manage new agreements and arrangements from the federal government's side.
- Another minister, the Minister of Indian and Inuit Services, and a new Indian and Inuit Services department should be assigned to deliver the gradually diminishing services coming from the federal level.
Models and Powers of Self-Government Aboriginal visions of self-government are as varied as their traditions, circumstances and aspirations. Scores of detailed proposals for self-government have been drawn up by Aboriginal peoples across Canada. The Commission identified three basic models, each with many possible variations. These models are all realistic and workable in the framework of the Canadian federation.
Nation Government Aboriginal people with a strong sense of shared identity and an exclusive territorial base will probably opt for the 'nation' model of self-government. Inside their boundaries, nation governments would exercise a wide range of powers and authority. They might choose to incorporate elements of traditional governance. They could choose a loose federation among regions or communities, or a more centralized form of government. They will need to find ways of representing the interests of non-Aboriginal residents in decision making.
Public Government In some regions, Aboriginal people are the majority in territory they share with non-Aboriginal people - for example, in the more northerly parts of the country. Existing agreements (such as the Nunavut Agreement) signal that Aboriginal nations in that situation will probably opt for the 'public' model of self-government. In this model, all residents participate equally in the functions of government, regardless of their heritage. Structures and processes of government would likely be similar to those of other Canadian governments - but with adaptations to reflect Aboriginal traditions and protect Aboriginal cultures.
The Teslin Tlingit Nation in the Yukon are building from the clan to the nation through the establishment of several branches of government: a general council, an executive council, an elders council and a justice council. While these councils are not duplicates of traditional Tlingit institutions, they do reflect the importance of the clans in their composition and in their consensual decision-making style.
Community of Interest Government In urban centres, Aboriginal people from many nations form a minority of the population. They are not 'nations' in the way we define it, but they want a measure of self-government nevertheless - especially in relation to education, health care, economic development, and protection of their cultures. Urban Aboriginal governments could operate effectively within municipal boundaries, with voluntary membership and powers delegated from Aboriginal nation governments and/or provincial governments.
In our judgement, the right of Aboriginal governments to exercise authority over all matters relating to the good government and welfare of Aboriginal peoples and their territories is an existing Aboriginal right and is therefore recognized and affirmed by the constitution.
This governing authority has two parts: a 'core' and a 'periphery'. The core of Aboriginal jurisdiction consists of matters that are of vital concern to the life and welfare of a particular Aboriginal people, its culture and identity - but do not have a major impact on neighbouring communities and are not otherwise the object of transcendant federal or provincial interest.
Legally, nothing prevents Aboriginal governments from taking charge of core issues in their communities and nations tomorrow. Practically, of course, they are tied into existing program arrangements with other governments. Before they can reasonably be expected to take charge, agreements about new funding formulas and many other issues are needed.
Matters on the periphery of Aboriginal jurisdiction - matters that affect the lands, resources and other interests of neighbouring people - must be subject to agreements with other governments. We have in mind such occasionally controversial issues as pollution control, road and rail access, wildlife protection, certain aspects of the justice system and so on - issues that will require shared or co-operative management arrangements.
Financing for Self-Government The financing of Aboriginal governments will require new approaches - approaches that acknowledge that much of the wealth of this country comes from lands and resources to which, in many cases, Aboriginal people have a legitimate claim.
If self-government is accompanied by fair redistribution of lands and resources - as we argue it must be - Aboriginal governments can become largely self-financing in the long term through greater access to what are called 'own-source revenues'. Own-source revenues flow to governments through familiar channels - taxation, investment, borrowing, business fees and royalties, public corporation revenues, proceeds from lotteries and gaming, and so on. These sources of revenue can and should be made available to Aboriginal governments.
It is especially important for Aboriginal governments to develop their own taxation systems. Most Aboriginal people pay taxes now, but to provincial and federal governments. We are recommending that those who live on Aboriginal nation territories pay taxes primarily to their own governments. Those who live off Aboriginal territory would continue to pay taxes to federal and provincial governments.
It will take time for Aboriginal nations to develop own-source revenues. Even then, transfer payments from other governments will be needed - but to a lesser extent. We expect that treaties and other agreements among governments will free transfer payments from some of the restrictions on their use that now frustrate Aboriginal people.
In the old days, we had a tradition of caring and sharing. If a man was sick or injured, the chief would delegate others to hunt for him and provide fire wood [for his family]. We redistributed our wealth for the good of all. And that is just what any good system of taxation is supposed to do.
Elder Ernie Crowe
quoted by Chief Clarence Jules
Kamloops First Nation community
Aboriginal nations, like the provinces, will have unequal access to resources and economic opportunities, so their level of prosperity will vary. We expect that nations that are well-off will help those that are not. Transfer payments from other governments will help to equalize the levels of service they can provide.
We also expect that, as they develop, Aboriginal nations will use their resources to take fiscal responsibility for their own governments and services. Transfer payments can be structured to encourage this, as now happens between the federal and provincial governments.
Redistributing Lands and Resources All over the world and throughout history, collective control of lands and resources has been the key to prosperity and the basis of the powerful idea of 'home' that gives a people their common identity. Most Aboriginal people retain an intensely spiritual connection to the land of their ancestors - one that involves both continuity and stewardship. It is hardly surprising, then, that the most intense conflicts between Aboriginal and non-Aboriginal people centre on the use and control of land.
Across Canada, Aboriginal people are pressing for an expanded share - a fair share - of lands and resources that were once theirs alone. They were promised as much by the Crown of England and its successor, the government of Canada. Some Aboriginal nations signed treaties only because of that promise.
In fact, though, except in northern Quebec and the territories, the amount of land allocated for use by Aboriginal people is extremely small. Aboriginal lands south of the 60th parallel (mainly Indian reserves) make up less than one-half of one per cent of the Canadian land mass. By contrast, in the United States (excluding Alaska), where Aboriginal people make up a far smaller portion of the population, they hold three per cent of the land (see map).
Land reserved for Aboriginal people was steadily whittled away after its original allocation. Almost two-thirds of it has 'disappeared' by various means since Confederation. In some cases, the government failed to deliver as much land as specified in a treaty. In other cases, it expropriated or sold reserved land, rarely with First Nations as willing vendors. Once in a while, outright fraud took place. Even when First Nations were able to keep hold of reserved land, the government sometimes sold its resources to outsiders.
These disappearances took place despite the solemn duty of the Crown to manage lands and resources for the benefit of Aboriginal people.
Similarly, Métis people, who believed they had won the right to their own lands and resources in the bargain with Ottawa that led to the Manitoba Act, were driven further and further west - and ultimately dispersed as a people - by the largely fraudulent manner in which that bargain was administered.
Several other land policy issues have festered over the years:
- Governments have failed to allocate any lands at all to some Aboriginal nations.
- Governments have refused (with a few exceptions) to extend the land and resource base of First Nations as their populations, and their need for economic opportunity, grew.
- Large-scale resource development projects have had a destructive impact on Aboriginal lands and communities.
- Aboriginal peoples' treaty-protected harvesting rights on traditional lands have been opposed and blocked by non-Aboriginal people and governments.
We find ourselves without any real home in this, our own country... Our
people are fined and imprisoned for...using the same game and fish which
we were told would always be ours for food. Gradually we are becoming
regarded as trespassers over a large portion of this, our country.
Chiefs of the Shuswap
Okanagan and Couteau (Thompson) Tribes of British Columbia
Letter to Prime Minister Sir Wilfrid Laurier (1910)
Treaty agreements did not end the conflict. Indeed, it became sharper as settlers took up residence next door to Aboriginal people, who had not foreseen how deeply settlers' ways would clash with their own. They thought that the Crown's treaty promises would be enough to ensure their survival and independence. They were wrong.
The conflict became more deeply entrenched when the Constitution Act, 1867 - drafted without discussion with Aboriginal people - assigned legal ownership of all Crown lands to the provinces.
If what Aboriginal peoples thought they had won had been delivered - a reasonable share of lands and resources for their exclusive use, protection for their traditional economic activities, resource revenues from shared lands, and support for their participation in the new economy being shaped by the settlers - the position of Aboriginal peoples in Canada today would be very different. They would be major land owners. Most Aboriginal nations would likely be economically self-reliant. Some would be prosperous.
Some Aboriginal nations have gone to court to force governments to recognize their rights to land and resources, and some have been successful. A series of court decisions has confirmed that Aboriginal peoples have more than a strong moral case for redress on land and resource issues - they have legal rights.
The law of Aboriginal title establishes three things:
- Aboriginal people have rights of occupancy or use of portions of Canada that far exceed their current land base. These rights are based on their history of having lived in and used those lands since time immemorial.
- Agreements between the Crown and an Aboriginal nation (such as treaties) must be worked out before non-Aboriginal people can occupy or use that nation's traditional lands.
- The Crown of Canada is the guardian of Aboriginal title to their traditional lands and is obliged to support and protect their interests in those lands.
Lands and resources are owing to Aboriginal peoples for both contemporary and historical reasons. Lands and resources are the essential substructure of political, economic and social development. To rebuild their nations, Aboriginal people need
- enough land to give them something to call 'home' - not just a physical space but a place of cultural and spiritual meaning as well
- enough land to allow for traditional pursuits, such as hunting and trapping
- enough lands and resources for economic self-reliance
- enough lands and resources to contribute significantly to the financing of self-government
of the accommodation between the Crown and the First [Peoples]. We have gone to the Courts in our own defence.
Chief Edward John
First Nations Summit of British Columbia
Fair Sharing: A Plan For many years, Canada has had a land claims process. Its purpose is to allow First Nations to pursue either a specific claim - for example, the return of reserve land improperly sold off by the government - or a comprehensive claim to an allotment of the nation's traditional land in a case where it has no treaty or other settlement with Canada.
The existing land claims settlement process is deeply flawed:
- It assumes that no Aboriginal rights apply on Crown land - unless Aboriginal nations can prove otherwise. This position is at odds with the doctrine of continuing Aboriginal title and with the duty of the Crown to protect Aboriginal interests.
- The government of Canada controls the process. It acts as defender of the Crown's interests and also as judge and jury on claims. This is a clear conflict of interest, since it considers itself the 'loser' when a claim is settled in favour of Aboriginal people.
- The process is not generally open to Métis claims, leaving Métis people without a land and resource base and with no way of settling their grievances.
- The government has always (except in one instance) required Aboriginal claimants to give up - or 'extinguish' - their general Aboriginal land rights, in favour of specific terms laid down in the settlement. Aboriginal people cannot accept the rupture of their special relationship with their lands that extinguishment implies.
1. Lands selected from traditional territories that would belong exclusively to Aboriginal nations and be under their sole control.
2. Other lands in their traditional territories that would belong jointly to Aboriginal and non-Aboriginal governments and be the object of shared management arrangements.
3. Land that would belong to and remain under the control of the Crown but to which Aboriginal people would have special rights, such as a right of access to sacred and historical sites.
We believe the principle of sharing of our homeland [and] its natural
resources is the basis of the treaty arrangements... Accordingly, the
concepts of resource co-management and revenue sharing from the Crown
lands are the proper forms of treaty implementation.
Chief George Fern
Prince Albert Tribal Council
La Ronge, Saskatchewan
The third one would be the largest category of lands.
As a support to the new process, we are recommending establishment of regional treaty commissions and an Aboriginal Lands and Treaties Tribunal.
Regional treaty commissions would facilitate and support treaty negotiations but would not conduct negotiations - this would remain the responsibility of political leaders.
The tribunal would be responsible, first and foremost, for ensuring that treaty negotiations were carried out in good faith and financed fairly. Second, it would ensure that the interests of all parties were protected while treaties were being negotiated. Third, it would rule on discrete, specific claims that are capable of settlement in the short term.
In 1988, the Meadow Lake Tribal Council (mltc) of northwestern Saskatchewan got help from the federal government to buy a 40 per cent share in a struggling pulp mill, NorSask Forest Products, and update the mill's equipment. Help from the provincial government produced a tree-farm licence. The mltc then launched new businesses to do reforestation, logging and road construction. Mltc businesses have since paid $11 million in taxes and saved $10 million in social assistance costs by employing 240 people who would otherwise have been jobless.
The new treaty processes we propose will take time to show results. Steps must be taken in the meantime to provide enough lands and resources to meet Aboriginal nations' immediate needs.
- The federal government can help First Nations add to their existing land base by (1) allocating all land promised to them in existing treaties; (2) returning to First Nations all land it has expropriated or bought, then left unused; and (3) establishing a fund to help Aboriginal people purchase land on the open market.
- Aboriginal people have been largely excluded from the resource industries of Canada - even forestry and fisheries, where they once played a significant part in the labour force. Governments can revise their policies and set up programs to increase access to natural resources for Aboriginal people.
- Governments can continue along the route toward co-management arrangements with Aboriginal people. The goal of co-management is shared responsibility for and benefits from particular resources where overlapping interests are great, such as fisheries on the west coast, forestry in many regions, and all resources in certain national and provincial parks.
Economic Development Aboriginal people want to make a decent living, to be free of dependence on others, free of the social stigma and sense of personal failure that go with dependence, and free of the debilitating effects of poverty. Economic self-reliance will let them thrive as individuals and as nations and make their new governments a success.
The historical self-sufficiency of Aboriginal people and nations was destroyed in several ways:
- Their control over their lands and resources was diminished or usurped.
- New forms of economic activity (agriculture, manufacturing) were monopolized by non-Aboriginal people and businesses.
- Governments failed to live up to the spirit and intent of treaty promises to preserve traditional means of self-sufficiency - hunting, fishing, trapping, trading - and to help Aboriginal people take up the trades and occupations of the settlers if they wished.
- Legislation, especially the Indian Act, interfered with economic activity on reserves by restricting the flow of capital and limiting the decision-making capacity of First Nations governments and entrepreneurs.
- Businesses, industries and other workplaces have begun only recently and occasionally to welcome and accommodate Aboriginal people as employees.
- Education and training facilities have begun only recently and occasionally to support Aboriginal people as students, with the result that few adults are equipped to compete for good jobs.
- Dependence: Most Aboriginal nations and communities are highly dependent on funds from other governments. Most offer only a limited range of job opportunities. Few can hold out the promise of jobs for the majority of their children.
- Inequality: In 1991, 54 per cent of Aboriginal people had annual incomes of less than $10,000, as compared to 34 per cent of Canadians generally. Unemployment is high, and it has risen noticeably in the last decade as the size of the youth population has swelled.
- Rapid labour force growth: Higher birth rates and life expectancy have produced a sharp increase in the Aboriginal population (see graph). The number of children under 16 is especially high, with sobering implications for future job needs.
- Variability: Aboriginal nations are located all over the country, from east to west and north to south, from isolated villages to urban enclaves. Most have limited natural resources at their command, although many have riches under their feet. Economic activity in communities ranges from traditional harvesting to modern wage work. Economies may be restricted by the Indian Act, assisted by federal programs - or outside the reach of both.
Ownership of lands and resources is essential to create income and wealth for Aboriginal individuals and nations. But ownership is not enough. Communities and nations that want to control the wealth available from their resources don't want to leave operation of their economies to outside specialists. The challenge of skills development to meet the demands of both modern and traditional economic activity is just beginning to be met in Aboriginal communities.
Federal, provincial and territorial governments should co-operate to stimulate economic vitality in both the traditional and the modern sector - so that all Aboriginal people have the chance to make a reasonable living, whether as a carver in Cape Dorset, a teacher in Saskatoon, or a part-time trapper and radio technician in Moose Factory.
Recent progress in economic development gives rise to hope for a brighter future. But the challenge of turning pockets of progress into a broad transformation of economic life for Aboriginal people remains immense.
There are only five registered professional foresters and fewer than ten registered professional geologists of Aboriginal ancestry in all of Canada. In a recent discussion paper on social security reform, Human Resources Development Canada estimated that 45 per cent of all new jobs created between 1990 and 2000 will require more than 16 years of education and training
Levers of Economic Change Transforming Aboriginal economies from dependence to self-reliance will not be easy. The greatest boost for most nations will come from access to a fair share of lands and resources.
The results of recent land claims settlements suggest that nations will use their timber, minerals, fish, wildlife and other resources to create jobs, bring in revenue, and lay the foundation of a diversified economy. Access to resources is the key, but increasing the land and resource base is not enough. Other strategies are needed too.
Regaining Control
As things stand, Aboriginal communities are subject to a changing array of economic development programs, most of them managed from distant government offices. They must tailor their ideas for stimulating the economy to program criteria set by external authorities.
We call on federal and provincial governments to enter into long-term development agreements with Aboriginal nations to provide support, advice and stable funding for economic development. Aboriginal nations would design programs, make investment decisions, and be accountable to their people for managing these resources.
Regaining control of economic matters without the human resources and capacity to manage them would spell trouble for Aboriginal nations. They must be helped to develop the personnel and the regional and national institutions they need to invest in and manage businesses in specific sectors - resource extraction industries, agriculture, communications, tourism, and so on.
Business Development Governments have worked with Aboriginal entrepreneurs to help make business development one of the sparks of economic growth in Aboriginal communities. Many have demonstrated their capacity to master a wide range of commercial skills as individual entrepreneurs and as managers of community-owned businesses.
- Levels of business formation have been high in recent years. About 10 per cent of Aboriginal people report business ownership or income from self-employment.
- Self-employment has increased markedly in the last decade, particularly among Aboriginal women.
Aboriginal nations have had perhaps their greatest successes through collectively owned enterprises - where shares in the company are held by the community or the nation government on behalf of its members. Through their companies, communities run regional airlines. They are involved in forestry management, silviculture, wood harvesting and processing. They run grocery stores and wholesale food distributing networks, motels, hotels, bowling alleys, golf courses and much more.
Some have had a rough ride - making mistakes, losing investments, sometimes experiencing bankruptcy. But valuable lessons have been learned, and there are now scores of Aboriginal people with the skills and confidence to manage the operations of modern commercial enterprises.
They, and those who would follow in their footsteps, still need support. We recommend that Aboriginal and non-Aboriginal governments work together to develop
- improved business services
- improved access to loan and equity capital, including the creation of a national Aboriginal development bank
- improved access to markets
in the North, shuddered at this solution, [saying that] it will not create
a long-term economic solution that is acceptable to Inuit, but it will
create a great dependency, where no one will ever get out.
Charlie Evalik
Cambridge Bay, Northwest Territories
Employment The employment problem is immense. More than 80,000 jobs are needed now, just to raise Aboriginal people's employment rate to the overall Canadian rate. Without action, the situation will deteriorate. The Aboriginal population is young: 56 per cent are under 24 years of age, compared with 34 per cent of all Canadians. An additional 225,000 jobs will have to be found in the next 20 years to put them to work.
We propose a sustained effort to increase employment for Aboriginal people, including
- a special 10-year program to train Aboriginal people for the work that has to be done in newly self-governing nations
- a new approach to employment equity, in which employers work with Aboriginal organizations to forecast vacancies and train Aboriginal people to fill them
- measures to increase the number of Aboriginal employment service agencies and their capacity to place Aboriginal people in the labour force
- provision of culturally appropriate and affordable child care, so that more Aboriginal parents can join the labour force
Education and Training Public investment in education and training is vital to improve employment prospects for Aboriginal people in the existing job market. There are shortages of trained Aboriginal people in such fields as economics, medecine, engineering, community planning, forestry, wildlife management, geology and agriculture - to name only a few.
Aboriginal nations cannot rebuild their political institutions, manage their economies or staff their social services without trained people. Yet high school and university completion rates are low among Aboriginal youth.
Motivating youth to complete their education is of great importance to the economic future of Aboriginal communities. Youth need a strong foundation in their traditions and proficiency in the skills valued by contemporary society. Those who master these skills and contribute to their communities and nations deserve to be celebrated as the modern equivalents of the great hunters and leaders of the past.
Education and training are discussed in more detail in Chapter 3.
Alternatives to Welfare The need for welfare in Aboriginal communities came with the confiscation of ever expanding tracts of their land. Indigenous people grew poor, malnourished and sick. Many died young. The government chose to provide short-term 'relief' instead of sustained help to rebuild ravaged Aboriginal economies - a choice governments have made over and over again in the last two centuries.
Some years ago, in the Dene community of Fort Franklin in the Northwest Territories, the council decided to use a portion of welfare funds to pay welfare recipients to do much needed work around town: remodelling and repainting public buildings, cleaning public spaces, gathering wood for elders and single mothers. Although these projects had some success in meeting their goals, they were stopped by the funding government when authorities found out that recipients were working for welfare.
By the 1960s, welfare had become available to Aboriginal people as it was to other Canadians. Since then, more and more have become dependent. The rate of welfare dependence is now two to four times higher among Aboriginal people than among Canadians generally. Many speakers at the Commission's public hearings lamented the erosion of self-reliance among peoples once renowned for it, an erosion brought about by the combination of economic ruin and welfare availability.
There may never be enough jobs to go around in Aboriginal communities. Yet social assistance, as now delivered, is not a good way of providing cash income, for it traps recipients in a marginal existence. It may protect against abject poverty, but it can also stifle individual initiative, and it does little to deal with the community conditions that lead to dependence.
We think Aboriginal communities should be able to use the money now earmarked for individual welfare payments as an instrument of broader economic development:
- Aboriginal communities or nations could take charge of the funds their residents now receive for social assistance. These funds, along with a top-up amount for capital and other costs, could be used for local projects such as new roads, a community centre or a business venture. The able-bodied unemployed could work on these projects, receiving wages rather than welfare. They would gain experience and skills, and the community as a whole would benefit from their work.
- The maze of assistance programs available in urban centres could be simplified through single-window service delivery. Funds now available for life skills, job training, job finding, child care and income maintenance could be pooled to support holistic planning to help individuals make changes in their lives.
- In remote areas, income support funds could be used to support hard-to-finance activities such as traditional harvesting. The James Bay Cree Income Security Program provides a model.
When Aboriginal youth seek employment, we not only have to overcome all
the employment barriers that youth in general face, we also have to deal
with racism in the workplace, both systemic and individual. Very few
employers will even give us the chance we need to prove that we are
capable of performing the job.... When are we going to be treated equally
and fairly by those with whom our ancestors so generously shared our land
and resources?
Gail Daniels
Anishnaabe Oway-Ishi
Toronto, Ontario
Treaties: The Mechanism of Change The Commission proposes a wide-ranging agenda for change to achieve two goals:
- Rebuilding Aboriginal nations as the best and proper way for Aboriginal people to protect their heritage and identity, restore health and prosperity to their communities, and reorganize their relations with Canada.
- Restoration of relations of mutual respect and fair dealing between Aboriginal and non-Aboriginal people.
Treaties have a long and honourable history as a way of solving disputes between peoples, nations and governments. Although Canada's historical treaties with Aboriginal nations have been ignored and violated over the years, the treaty format is still a powerful way of stating the terms of a relationship.
Treaties have a long and honourable history as a way of solving disputes between peoples, nations and governments.
To see how treaties can be used in the modern context, Canadians need to understand them better. In brief, the historical treaties are:
- Promises exchanged between the governments of France, Britain and Canada, and Aboriginal peoples.
To secure peace or alliance with Aboriginal nations, or gain occupancy and development rights on Aboriginal land, the Crowns of France, Britain and, later, Canada promised Aboriginal peoples protection, benefits and shares of wealth - in perpetuity. Those promises now rest with the governments of Canada. - Nation-to-nation agreements.
Treaties are not admissions of defeat or submission. Parties to a treaty do not give up nationhood or their own ways of living, working and governing themselves. Rather, they acknowledge their shared wish to live in peace and harmony, agree on rules of coexistence, then work to fulfil their commitments to one another. - Commitments that are sacred and enduring.
The historical treaties were taken very seriously by both sides. Their purpose was to create a relationship of peace and friendship that would last. The alternative was lost trade and possibly warfare and bloodshed. Treaties were sworn by sacred oaths, announced with great ceremony, and regarded as binding documents of state. The fact that they have been violated time and again does not change their underlying legitimacy. - Part of Canada's constitution.
The treaties set out broad social contracts between independent peoples, very like the terms of union by which former British colonies joined Confederation as provinces. They are constitutional documents, recognized and affirmed in section 35 of the Constitution Act, 1982. As such, they are part of the law of the land. - Fundamental to Canada's honour.
Treaty making is one of the great achievements of human societies. It enables the deepest conflicts to be set aside in favour of respectful coexistence. It expresses the choice to live in harmony with others, rather than spill blood or exercise power using more subtle forms of violence. The act of entering into a treaty, then as now, represents a profound commitment between peoples. Once made, a treaty is broken or ignored only at the cost of a stain on the good name of the nation or government that breaks it.
This will require the fulfilment and renewal of existing treaties and the making of new treaties with Aboriginal peoples who do not have them now.
In our minds, if we are looking towards a future where we can have peace in this land, the mechanism is there, and that is...those relationships of friendship [in our treaties]... That is the foundation we have to begin with.
Charlie Patton
Mohawk Trail Longhouse
Kahnawake, Quebec
Treaty Fulfilment and Renewal Accounts of negotiations leading to the historical treaties are full of stories of miscommunication and cross purposes. This is hardly surprising. Negotiators had no common language, no common frame of reference. Despite profoundly different cultures and world views, they were trying to figure out how to share a world.
Implementation of treaty terms and promises was problematic from the start. As time passed and the balance of power between Aboriginal and non-Aboriginal people shifted, governments were able to ignore terms and promises that no longer suited them. For example,
- The Anishnabe (Ojibwa) of Lake Huron and Lake Superior were promised that the annuity money they received for use of their traditional lands would increase if the revenues derived from their resources increased.
- The people of the Okanagan Valley in British Columbia were promised that if they opened their valley to settlers, they could choose reserve lands of any size and location.
- The chiefs of northwestern Ontario were promised the right to hunt and fish on Crown land forever, if they signed Treaty 9.
Treaty renewal is a way of addressing fundamental disagreements between Aboriginal and non-Aboriginal authorities about the accuracy of the treaties and about their real purpose.
Many Aboriginal people say that the written version of treaties fails to reflect crucial verbal agreements reached by negotiators. Further, they say that the treaties are not just records of a deal, but attempts to give shape to the infinitely complex business of sharing a country. They are agreements for living together and thus are living agreements that must be reviewed and reinterpreted periodically in light of their purpose - their 'spirit and intent'.
Non-Aboriginal governments take a much more restrictive view. They argue that the written treaty is the complete treaty and that it should be interpreted literally.
In approaching the terms of a treaty...the honour of the Crown is
always involved, and no appearance of 'sharp dealing' should be sanctioned.
Ontario Court of Appeal
R. v. Taylor and Williams (1981)
The historical evidence is clear on the first point of disagreement: the written treaties often are not a full and fair statement of agreements reached.
On the second point, the Commission has concluded that the treaties should be implemented to reflect their spirit and intent - not just their words, whether spoken or written. The language of yesterday's treaties reflects yesterday's values.
For example, the $5 annual treaty money - a gift commemorating the agreement in Aboriginal eyes, a form of rent for use of the land in European eyes - was a significant sum in its time. Or, to take another example, the promise of a medicine chest for those who signed Treaty 6 was a commitment to provide the best health care available at that time.
What characterizes a treaty is the intention to create obligations...
Once a valid treaty is found to exist, the treaty must be given a just,
broad and liberal construction.
Supreme Court of Canada
R. v. Sioui (1990)
It is deeply self-serving of Canadian authorities to insist on a literal interpretation of such clauses. If the relationship between Aboriginal and non-Aboriginal people is ever to be set right, the underlying intentions of treaty promises - not the letter of outdated terms - must guide their present-day implementation.
To bring about fulfilment and renewal of the historical treaties, we recommend that Canadian governments
- honour the provisions of existing treaties as recorded in treaty text and supplemented by oral evidence
- interpret the terms of each treaty in a broad and liberal way, in keeping with the spirit and intent of the agreements reached
- act as protectors of Aboriginal interests, not adversaries, and reconcile the interests of society as a whole with the terms of the treaties
- recognize that First Nations did not consent to loss of title to their lands or to extinguish all rights to their lands when they signed treaties - a more reasonable interpretation is that they consented to share and co-manage lands and resources
- recognize that by entering into treaties with Aboriginal peoples, the Crown of Canada acknowledged their inherent right of self-government, their right to control their own affairs, and their right to enter into intergovernmental arrangements with other nations
- establish a process for fulfilling and renewing existing treaties, on the basis of these principles
- Inuit and Crees (and later the Naskapi) of James Bay and Northern Quebec (1975 and 1978)
- Inuvialuit (and later Inuit) of the Northwest Territories (1984 and 1993)
- Yukon First Nations (1993)
- the Nisga'a in British Columbia (1996)
We propose a new treaty process to lead the way to reconciliation between Aboriginal and non-Aboriginal people over the next 20 years. An agreed treaty process can be the mechanism for implementing virtually all the recommendations in our report - indeed, it may be the only legitimate way to do so.
The main objectives of a new treaty-making process would be to
- establish the full jurisdiction of those nations as part of an Aboriginal order of government
- expand the land and resource base under their control
It is self-defeating [for the government] to pursue a policy that
supposes the terms of a claims agreement can be fixed for all time. There
can be no acceptable final definition of the compromises that must be made
between societies over succeeding generations. The conclusion of a modern
claims agreement must be seen as a beginning, not an end.
Bernadette Makpah
Nunavut Tunngavik Inc.
To set the stage, we recommend that Parliament declare its support for the treaty relationship in the form of a new Royal Proclamation. By itself, a new proclamation will change nothing; it needs to be backed up by companion legislation setting out guiding principles for the treaty processes and establishing new decision-making bodies, independent of government, to conduct them.
One major piece of companion legislation would be an Aboriginal Treaties Implementation Act with the following provisions:
- It would establish a process for recognized Aboriginal nations to renew existing treaties or negotiate new ones.
- It would set out processes and principles to guide negotiation.
- Its guiding principles would include a commitment to implement existing treaties according to their spirit and intent and to renegotiate treaty terms on which there was no meeting of minds when they were originally set down.
- It would establish regional treaty commissions to convene and manage the negotiation process, with advice from the Aboriginal Lands and Treaties Tribunal on certain issues. To achieve legitimacy, treaty commissions would act at arm's length from government. Their job would not be to determine the outcome of negotiations but to facilitate the process. Each treaty will be the result of a political agreement, freely entered into by all parties and agreed to by their constituencies.
The treaties require some kind of implementing process, some kind of institutional arrangement that will see that the finer spirit of the treaties is realized, that the relationship is renewed, and that the treaties are respected by all who live in the country.
Tony Hall
University of Lethbridge
Lethbridge, Alberta
Canada can afford to do this. Indeed, Canada cannot afford not to do it, for the cost of maintaining Aboriginal people in a state of dependence and social disorganization - measured in human distress, lost productivity and proliferating government programs - is enormous, as we show in Chapter 5.
The Relationship Restructured In this chapter, we have outlined major steps needed to transform the relationship between Aboriginal people and other Canadians from its present state of tension and failed initiatives to one of co-operation and growing successes. The steps are numerous and may seem daunting. But they are logical, they are progressive, they reinforce each other, and they constitute a workable plan. Let us review them briefly:
- 1.The federal government should begin the cycle of renewal with an act of national intention - a new Royal Proclamation.
The Commission is calling for a sharp break with past practices, mired as they are in fallacies about Aboriginal people and their rights, tarnished as they are with failed negotiations and broken promises. We propose a new Royal Proclamation, stating Canada's commitment to principles of mutual recognition, respect, responsibility and sharing in the relationship between original peoples and those who came later. - 2. Parliament should enact companion legislation to give these intentions form and meaning and provide the legal instruments needed to implement them.
Three major pieces of legislation would be needed: - an Aboriginal Treaties Implementation Act, setting out a process for clarifying and modernizing existing treaties and making new ones, and establishing regional treaty commissions to facilitate and support the negotiation process
- an Aboriginal Lands and Treaties Tribunal Act, establishing a body to clear the backlog of specific claims and act as ombudsman for the new comprehensive treaty-making processes
- an Aboriginal Nations Recognition and Government Act, setting out the process and criteria for recognizing Aboriginal nations, acknowledging, on an interim basis (until treaty negotiations are complete), their jurisdiction over core issues within their existing territories, and providing financing
- These steps should be undertaken in close consultation with national Aboriginal organizations and provincial and territorial governments. While consultations are under way, a public education campaign should be launched to promote understanding on the part of all Canadians.
- 3. The federal government should provide a forum for negotiating a Canada-wide framework agreement to lay the ground rules for processes to establish the new relationship.
The forum should be convened under the authority of the first ministers of federal, provincial and territorial governments and leaders of national Aboriginal organizations and should address at least these issues: - treaty renewal and new treaty making
- redistribution of lands and resources
- clarification of areas of independent and shared jurisdiction
- redesign of short-term and long-term fiscal arrangements
- 4. Aboriginal nations should begin their rebuilding processes.
Aboriginal nations will need time and resources to undertake the nation building that must be completed before they seek formal recognition from Canada. In particular, they must clarify membership issues and develop institutions and human resources for self-government and all it entails. - 5. All governments should prepare to enter into the new treaty process.
After recognition, each Aboriginal nation will need to seek a mandate from its citizens to enter into a treaty renewal or negotiation process. These negotiations will result in the settlement of land, resource, governance and financing issues.
The federal government will need legislation in place and reorganization of its internal structures, as we have recommended. The provinces will need parallel legislation permitting them to be partners in treaty processes within their boundaries. - 6. Governments should take interim steps, as proposed by this Commission, to redistribute lands and resources.Canada's wealth must be shared fairly with the original inhabitants of the land. Commitment to Aboriginal self-government will be hollow unless Aboriginal nations have access to an adequate land base, with resources to match. The greatest part of the decision making about redistribution will be done during treaty negotiations. However, we have proposed interim measures to bring short-term relief, and we urge governments to pursue them.
- 7. Aboriginal and non-Aboriginal governments should co-operate to stimulate economic development.
Creating meaningful work for the citizens of Aboriginal nations will require long-term strategies to promote a mix of economic activity. The strategies we propose will require co-operation among governments, both before and after the broader processes of change are under way.
Chief Albert Levi
Big Cove First Nation community
Big Cove, New Brunswick
These steps, taken together, have the potential to bring about fundamental change - in the hearts, minds and life experience of Aboriginal people, who have waited so long for justice, and in Canada as a country of fair-minded people. Each step, and the rationale from which it springs, must be accepted and adopted with determination and good will, by Aboriginal and non-Aboriginal people and their leaders.
It can be done.
But it will not work unless Aboriginal people, in their nations and communities and personal lives, see that it does. To do so, they will need to develop and use their full potential as human beings and as citizens of their nations. This significant challenge is the subject of the next chapter.
3) Gathering Strength Aboriginal people endure ill health, run-down and overcrowded housing, polluted water, inadequate schools, poverty and family breakdown at rates found more often in developing countries than in Canada. These conditions are inherently unjust. They also imperil the future of Aboriginal communities and nations.
Many people who spoke to us urged us to consider the human problems facing Aboriginal people holistically - as part of a pattern of negative effects arising from their experience of life under policies of domination and assimilation. This approach helped us identify the key elements in solutions that will work.
- Poverty, ill health, educational failure, family violence and other problems reinforce one another. To break the circle of disadvantage - where family violence leads to educational failure, which leads to poverty, which leads to ill health and back to violence - all these conditions must be tackled together, not piecemeal.
- Repeated assaults on the culture and collective identity of Aboriginal people (described in Chapter 1) have weakened the foundations of Aboriginal society and contributed to the alienation that drives some to self-destruction and anti-social behaviour. Social problems among Aboriginal people are, in large measure, a legacy of history.
- Just as social problems spring in part from collective experience, so solutions require change at the collective level. Aboriginal people acting alone cannot shift the weight of disadvantage and discrimination. But solutions that lift the weight for Aboriginal people collectively shift it for everyone.
Chief Jean-Charles Piétacho
and Sylvie Basile,
Mingan First Nation community
The Circle of Well-Being The elements in the Commission's agenda for fundamental change - self-government, economic self-reliance, a partnership of mutual respect with Canada, and healing in the broadest sense - form a circle of well-being that revolves something like this:
- Self-government will not succeed unless it has a solid foundation in economic activity and highly developed human skills.
- Aboriginal people will not regain the human capacities they need to rebuild their economies and communities unless they are self-governing.
- Once they are self-governing, self-reliant and healthy in body, mind and spirit, Aboriginal people will be able to take responsibility for themselves and their place in the partnership with Canada. The circle of well-being will be complete.
Canada's constitution makes room for Aboriginal people to take charge of these matters right now, if they want to - without waiting for other governments to transfer authority.
But agreements (treaties, accords, settlements) with other governments will ease the way forward, resolving tough political, administrative and financial issues in advance. Aboriginal communities will make more headway with health and social problems if they have the support and co-operation of other governments.
Treaty making takes time. The transition to full control of community affairs by Aboriginal people will take some years. Some will chafe at delay, but the passage of time has some advantages for Aboriginal people, for they are still gathering strength for the tasks ahead. They need more trained people to meet the challenges of self-government and new institutions to put the stamp of aboriginality on social services and their delivery.
As well, they need to work with non-Aboriginal health and social services agencies to transform relations with them. Mainstream services and agencies need to become more welcoming and more sensitive to cultural difference. They need to ensure that all traces of racism are eliminated from policy and practice. And they need to start seeing Aboriginal people as partners in the design, development and delivery of services.
Our recommendations on social and health policy focus on three interlinked objectives:
- solving urgent health and social problems
- promoting human capacity building in Aboriginal nations
- alerting mainstream institutions to their responsibilities to Aboriginal people
Well-being flows from balance and harmony among all elements of personal and collective life.
Family is still the central institution in Aboriginal societies. It is only a generation or two since extended kin networks of parents, grandparents and clan members made up virtually the entire social world for Aboriginal people, providing the framework for most of the business of life. Inside the web of family, norms of sharing and mutual aid provided a social safety net for every individual.
Aboriginal families, and the cultures and identities they passed on to their children, were severely disrupted by actions of colonial and Canadian governments. Children in particular were targeted time and again in official strategies to control and assimilate Aboriginal people.
- Residential schools did the greatest damage. Children as young as 6 years old were removed from their families for 10 months of the year or longer. They were forbidden to speak the only languages they knew and taught to reject their homes, their heritage and, by extension, themselves. Most were subjected to physical deprivation, and some experienced abuse. We heard from a few people who are grateful for what they learned at these schools, but we heard from more who described deep scars - not least in their inability to give and receive love.
- The removal of Aboriginal children from their communities through cross-cultural foster placement and adoption is a second major cause of family disruption. Children removed from their families are severed from their roots and grow up not knowing what it is to be Inuit, Métis or a First Nation member. Yet they are set apart from their new families and communities by visible difference and often made to feel ashamed of their origins. At the same time, their home communities and extended families are robbed of part of the next generation.
- Migration to cities and towns also disrupts families. Aboriginal people leave home to improve their education, look for work or escape family violence. Once in the cities, they lose the family support they depended on at home. If they have troubles, they may find urban services difficult to penetrate, alien in spirit and perhaps racist. Many make a successful transition. But others fall into the cracks between cultures, where they are isolated, unemployed and under-served.
"With the healing in place, we can have self-government. But without the healing, we will have dysfunctional self-government." Jeanette Costello
Counsellor, Kitselas Drug and Alcohol Program
Terrace, British Columbia
Many Aboriginal people told the Commission that the future they wish for - as self-governing, self-reliant nations within Canada - is impossible unless the strong bonds of family that gave individuals and communities their stability are rebuilt.
Services designed and controlled by Aboriginal people can do much to heal the wounds visible in statistics on social dysfunction - family breakdown, suicide and attempted suicide among youth, substance abuse, trouble with the law. To prevent them from recurring, the Aboriginal family must be restored to its traditional role as nurturer of the young and protector of the old, guardian of the culture and safety net for the vulnerable.
"Our Children Are Our Future" Children have a special place in Aboriginal cultures. According to tradition, they are gifts from the spirit world and must be treated well or they will return to that realm.
Failure to protect a child from harm is perhaps the greatest shame that can befall an Aboriginal family. Yet it has happened repeatedly in the last several generations, and it continues to happen today.
Most of our clients...are young, sole support mothers who were very often removed [from their families] as children themselves... And whilethe mother may have been in foster care, the grandmother - I think we all know where she was [as a child]. She was in residential school. So we are into a third generation [of disrupted families] now.
Kenn Richard Executive Director, Native Child and Family Services
Toronto, Ontario
Abuse and family violence are the most dramatic problems, but they are the tip of an iceberg that began to form when Aboriginal communities lost their independent self-determining powers and Aboriginal families were deprived of authority and influence over their children.
The source of social dysfunction we heard most about in public testimony was residential schooling, but inappropriate child welfare policies have also been a persistent and destructive force. The effect of these policies, as applied to Aboriginal children, was to tear more holes in the family web and detach more Aboriginal people from their roots.
Authorities had only one remedy for children thought to be in need of protection - removal from their families. Authorities were not able to alleviate family poverty, fix crumbling houses, or support young parents who had themselves been raised in institutions, without parents as models. They made little or no attempt to place children at risk with members of their kin network or with other Aboriginal families who could help them hold on to their culture and identity.
Child welfare is one of the services that Aboriginal people want most to control for themselves. In 1981, the federal government signed the first agreement authorizing a First Nations agency to deliver child welfare services. Since then, some three dozen Aboriginal agencies have been authorized. They have revised the rules of placement, to recognize the capacity of kin networks to protect Aboriginal children, and emphasized the importance of cultural continuity in placements.
Even so, the well-being of the children is not assured. Aboriginal agencies have inherited many of the problems of the agencies they replaced. They struggle with ill-fitting rules made outside their communities; with levels of family distress and need beyond their limited resources; and with the challenge of finding ways to protect children at risk while respecting extended family networks that resist interference. Not all Aboriginal child welfare agencies have achieved the high standards to which they aspire.
Immediate action of three kinds is needed:
- rehabilitation services to promote healing and recovery for Aboriginal parents with serious problems
- preventive services to support Aboriginal families who are beginning to get into trouble
- continued reform of existing services - more local case evaluation and follow-up, more appropriate training for personnel, more accessible and culturally appropriate urban services
- all governments take action to increase and support Aboriginal control of child welfare services
- block funding replace per capita care allowances so that continuing preventive services can be developed
- more resources be made available for urban services
Ending the Cycle of Family Violence Aboriginal people speaking at our public hearings, especially women, were frank about the extent and severe effects of family violence in Aboriginal life. They pointed to the need for improved services, but they said that the best hope lies in restoration of traditional Aboriginal values of respect for women and children and reintegration of women into family, community and nation decision making.
Twenty-four per cent of the respondents to our questionnaire indicated that they know of deaths as a result of Aboriginal family violence, and 54 per cent...know of cases where a woman sustained injury which required medical treatment as a result of family violence but did not seek medical attention out of fear and shame.
Catherine Brooks
Director, Anduhyaun Residence for Women
Toronto, Ontario
The Canadian Panel on Violence Against Women (1993) stated that family violence arises from a fundamental imbalance of power between men and women. This is true for Aboriginal people, too, but this inequality exists within a greater imbalance of power - that between Aboriginal and non-Aboriginal society. In these circumstances, the loss, humiliation, frustration and anger shared by all Aboriginal people can provoke violence in some, as one speaker explained to us:
- The oppressed begin to develop what they call 'cultural self-shame' and 'cultural self-hate', which results in a lot of frustration and anger. At the same time...we begin to adopt our oppressors' values, and in a way, we become oppressors ourselves....We begin hurting our own people. When you talk about things like addiction and family abuse, elder abuse, sexual abuse, jealousy, gossip, suicide and all the different forms of abuse we seem to be experiencing, it's all based on [oppression].
- Roy Fabian, Executive Director
Hay River Treatment Centre
Hay River, Northwest Territories
- Violence and abuse are often part of a pattern of disrupted relationships, deadened feelings and weakened cultural rules for responsible behaviour, a pattern that can be traced back to government interventions.
- In some cases, a culture of violence has invaded communities. Incidents cannot be treated as the isolated problems of particular couples or households.
- Violence in Aboriginal communities is promoted and sustained by racist attitudes that perpetuate demeaning stereotypes, especially of Aboriginal women.
Aboriginal people who asked the Commission to help end the violence had clear ideas about how it should be done:
- Don't stereotype all Aboriginal people as violent - make sure that interventions are targeted to those at risk.
- Don't let anyone use cultural difference as an excuse for violence - hold perpetrators accountable and make sure that the vulnerable are protected.
- Don't imagine that violence can be treated as a stand-alone problem - root out the social and political injustices, the poverty and the racism, that breed violence in all its forms.
- Aboriginal leaders should take a firm public stand against violence and work with their communities to develop zero tolerance standards and policies.
- Aboriginal governments and organizations should assure the full and fair representation of women in decision making.
- Aboriginal governments should support the work Aboriginal women are doing to solve health and social problems and recognize their expertise in relation to family violence.
Our children are vastly affected by family violence, even when they are not the direct victims. The cost to our children is hidden in their inability to be attentive in schools, in feelings of insecurity and low self-esteem, and in acting out behaviour [including] vandalism, self-abuse, bullying.
Sharon Caudron
Program Director
Women's Resource Centre
Hay River, Northwest Territories
The Urgent Need for Whole Health The health status of Aboriginal people in Canada today is both a tragedy and a crisis. Illness of almost every kind occurs more often among Aboriginal people than among other Canadians.
- Registered Indians (for whom we have the best data) can expect to die 7 to 8 years younger than other Canadians. This difference in life expectancy has two major causes: a higher rate of death among Aboriginal babies (twice the national average), and a higher rate of injury and accidental death among Aboriginal children, youth and young adults.
- Infectious diseases of all kinds, from gastrointestinal infections to tuberculosis, through less common than they once were, still occur at higher rates among Aboriginal people than among other Canadians.
- Chronic and degenerative diseases such as cancer and heart disease are affecting more Aboriginal people than they once did. Diabetes, with its many complications, is a particularly serious problem in some places.
- Rates of violence and self-destructive behaviour, including substance abuse and suicide, are high.
- Elevated rates of educational failure, unemployment, welfare dependency, conflict with the law and incarceration signal major imbalances in the life experience and well-being of Aboriginal people.
Aboriginal people urgently need resources to help them reduce infant mortality, tuberculosis, diabetes, heart disease and other illnesses. But they know that curing diseases of the body alone cannot restore well-being. What they are looking for is more fundamental and more transformative.
They are trying to bring balance and vitality to body, mind, emotions and spirit - as ends in themselves and as preconditions for balance and vitality in their societies. In short, they are looking for whole health.
Historical records and archaeological evidence tell us that many of the illnesses prevalent in Europe at the time of first contact were unknown or very rare in the Americas. Infectious diseases, from influenza to tuberculosis, were passed from the newcomers to Indigenous people, with devastating results. Hundreds of thousands sickened and died. In Canada, a population estimated at 500,000 at the time of first contact had plunged to 102,000 by the time of the 1871 census.
More illness care services will not turn the tide.
In the new climate of social responsibility that sparked the growth of public services after the Second World War, health authorities began to take seriously the need for medical care in Aboriginal communities. Today, almost every settlement has at least nursing services available. But despite large sums spent on illness care, Aboriginal people still experience ill health at unacceptable levels. The Commission looked at
- infant, child and maternal health
- infectious disease
- chronic disease
- disability
- injury and accident
- alcohol abuse
- community health (poverty, physical living conditions, environmental hazards)
Obviously, then, more of the same - more illness care services - will not turn the tide. What is needed is a new strategy for Aboriginal health and healing.
Wellness is a community issue, a national issue, a women's issue... No other [issue] so fundamentally relates to the survival of our people as that of health.
Vice-Chief Tom Iron
Federation of Saskatchewan Indian Nations
Wahpeton, Saskatchewan
Two Traditions of Healing Converge In recent years, Aboriginal people have shown great energy and imagination in tackling health and social problems. They have petitioned for more control of local services, and some have met with at least partial success. Those with partial control are beginning to modify and adapt services to reflect their own values, traditions and priorities - with good results.
Diabetes, hypertension, overweight, poor nutritional status are epidemic among Native people in Canada today.
Elizabeth Palfrey
Keewatin Regional Health Board
Rankin Inlet, Northwest Territories
But Aboriginal people want to make more radical changes in the way health and healing are promoted in their communities. Their main concerns revolve around four themes:
- Inequality of health status
The rate of many illnesses, and the risk of future illness and premature death, are significantly higher among Aboriginal people than among other Canadians. A further source of inequality favours some Aboriginal people over others: federal services and programs are available to registered Indians and Inuit, but not to others. But the fundamental inequality that puts Aboriginal people at risk for illness is income. Poverty and ill health go hand in hand, and Aboriginal people are among the poorest in Canada. - Interconnectedness
Aboriginal concepts of health and healing start from the position that all the elements of life and living are interdependent. By extension, well-being flows from balance and harmony among all elements of personal and collective life. - Control
Dependence on the Canadian state has left Aboriginal communities and nations without the authority to develop and control health and social services. Lack of control over important dimensions of living in itself contributes to ill health. Aboriginal people want to exercise their own judgement and understanding about what makes people healthy, their own skills in solving health and social problems. - Culture and traditional healing
Although Aboriginal people have moved far away from the lifestyles of their ancestors, they still see value in the traditions and practices that made them unique - including medical traditions ranging from herbal therapies to forms of psychotherapy. Often, they find that mainstream health services do not understand or fully meet their needs. They want to re-examine practices that were once suppressed or ridiculed for their possible usefulness today.
Henry Zoe
Dogrib Treaty 11 Council
Brief to the Commission
The most advanced thinkers in health policy circles today have reached some major conclusions about what makes people well. These 'determinants of health' converge with Aboriginal perspectives on health and healing through several key ideas:
- Health comes from the connectedness of human systems - body, mind, emotions, spirit - not their separate dynamics.
- Economic factors (employment status, personal and community poverty) play a central role in determining health.
- Personal responsibility for health and wellness is as important as professional or external expertise.
- The health of the environment affects the health of people.
- Health and well-being in childhood affect lifelong health status.
Health policy must assist in dispelling the legacy of poverty, powerlessness and despair in Aboriginal communities. This is the key to whole health for Aboriginal people.
In the past, we were like we were asleep. White people were doing
everything for us. We thought white people knew everything, but we were
wrong. The advice they gave us never worked.
Chief Katie Rich
Davis Inlet
Sheshatshiu, Labrador
A Strategy for Health and Healing Whole health comes from shared prosperity, a clean and safe environment, a sense of control over life circumstances - as well as high quality illness care and healthy lifestyle choices. Better health for Aboriginal people will grow out of the long-term structural changes proposed in Chapter 2.
What outside forces cannot bring about, Aboriginal people can do for themselves.
In the short term, however, prevention, treatment and rehabilitation services have an important contribution. Clearly, they can be improved. The starting place for reform is a commitment from federal, provincial, territorial and Aboriginal governments to build health and healing systems that do four things:
- pass the levers of control to Aboriginal people
- take a holistic approach to personal and social health
- provide diverse services that respond to the cultures and priorities of Aboriginal people and to the special dynamics of Aboriginal ill health
- bring equality in health status to Aboriginal people
1. Reorganization of existing health and social services into a system of health and healing centres and healing lodges, under Aboriginal control.
2. A crash program over the next 10 years to educate and train Aboriginal people to staff and manage health and social services at all levels, in Aboriginal communities and in mainstream institutions.
3. Adaptation of mainstream services to accommodate Aboriginal people as clients and as full participants in decision making.
4. A community infrastructure program to deal with urgent problems of housing, clean water and waste management.
There are 40 to 50 Aboriginal physicians in Canada. That amounts to 0.1 per cent of all physicians. There are about 300 Aboriginal registered nurses - again, 0.1 per cent of the total.
Health and Healing Centres The idea of community-based centres to develop and deliver integrated health and social services was put forward at our public hearings all over the country.
Health and healing centres can assemble, under one roof, the resources needed to tackle interrelated problems now dealt with typically by separate agencies - from child protection to mental health care. They can deliver medical care, make referrals to specialists, devise and deliver health promotion programs. In short, they can be the hub of health and social services in Aboriginal communities.
The kernel of such a system already exists - nursing stations and other facilities that co-ordinate at least some health and healing services in First Nations and Inuit communities. But not all communities have even the beginnings of a healing centre. In rural Métis settlements and in small towns with a substantial Aboriginal population, there is a virtual vacuum of services designed for, and run by, Aboriginal people. This vacuum needs to be filled.
To complement the work of community-based healing centres, the Commission proposes a network of healing lodges. Healing lodges can fill the acute need for residential treatment for people overwhelmed by social, emotional and spiritual distress. They can take up the issues of psycho-social distress that impair the lives of some Aboriginal people. For example, they could serve
- victims of family violence who need a safe place and time to re-orient their lives
- abusive adults who need to learn new ways of dealing with frustration and anger
- alienated youth who need to reconnect with their communities and their identity
Getting a start on healing centres and healing lodges does not depend on the structural changes in governance and land we talked about in the previous chapter. It does depend on the will to abandon fruitless debates about which level of government is responsible for which services.
The key to better integration of health and social services in Aboriginal communities is an increase in the number of professionals originating from those communities...
Huguette Blouin
Quebec hospitals association
Montreal, Quebec
Human Resources Development No amount of intervention from outsiders, however well meant, will help Aboriginal people achieve well-being. What outside forces cannot bring about, Aboriginal people can do for themselves. They can make the best decisions about the kind of health and healing services that will restore them to whole health - and they can do the work of making healing centres and lodges a success.
Very few Aboriginal people are now practising as doctors, nurses, social workers, nutritionists or psychologists. This is a problem in itself, but the problem goes deeper. Services aimed at whole health need to be culture-based and holistic - integrated across the full range of life problems. Centres and lodges need service providers with special skills and abilities.
- One pressing need is people who can apply Aboriginal knowledge to current health problems and combine traditional health and healing practices with mainstream approaches to build distinctive Aboriginal healing systems.
- Another is Aboriginal people trained to work in mainstream services - as professional caregivers, managers, board members and informed consumers - to help serve Aboriginal clients and to affirm the Aboriginal presence in Canadian life.
Enlisting Support from Mainstream Institutions Aboriginal health and healing centres are only part of the picture. Most Aboriginal people will, at least occasionally, continue to consult practitioners and use facilities in mainstream agencies and institutions - from doctors and hospitals to sheltered workshops for people with disabilities and transition houses for victims of family violence.
The institutions that deliver human services need to become more sensitive to the distinctive health and healing needs of Aboriginal people. Even when Aboriginal people are a major part of the client base, hospitals and other institutions are slow to adapt their practices to Aboriginal needs. Cultural sensitivity and responsiveness that go beyond the superficial should become a priority.
Mainstream institutions also have a role in supporting the development of new Aboriginal institutions. Even in tough economic times, the resources of mainstream institutions are vast compared to those under Aboriginal control. It is reasonable to expect them to offer some help to fledgling Aboriginal services.
Aboriginal institutions will welcome assistance in developing efficient and effective systems - as long as they can get it without relinquishing their autonomy. They will be looking for
- training opportunities
- mentoring and upport for new staff
- back-up and specialist services
- access to specialized equipment and similar resources
We suggest that all organizations involved in delivering health and social services to Aboriginal people undertake a systematic assessment of their practices to see how they can improve their connections with Aboriginal people.
Infrastructure Development The fourth strand of the strategy for attaining whole health is an infrastructure program - to bring housing, water supplies and waste management in Aboriginal communities up to generally accepted Canadian standards of health and safety. Immediate threats to health and well-being from flimsy and overcrowded houses, polluted water and untreated sewage are so serious that solutions cannot wait. More details on this problem and how to solve it are presented in the next section.
We have families...doubled and tripled up. We have up to 18 and 20 people sometimes, living in a single unit built for one family.
Valerie Monague
Social services administrator, Christian Island, Ontario
Housing and Living Conditions: Meeting Urgent Needs Despite significant public spending over the past decade, housing, water supplies and sanitation services for Aboriginal people fall far below Canadian standards in many communities. Overcrowded and dilapidated houses, unclean and limited supplies of water, inadequate disposal of human wastes - these conditions pose an unacceptable threat to the health of Aboriginal people and reinforce feelings of marginalization and hopelessness.
[Because] low-income Native families have no other place to go...the
slum landlords in town are doing a great business.
Martin Heavy Head
Chair, Treaty 7 Urban Housing Authority
Lethbridge, Alberta
- Houses occupied by Aboriginal people are twice as likely to be in need of major repairs as those of other Canadians. On reserves, 13,400 homes need such repairs, and 6,000 need outright replacement.
- Aboriginal homes are generally smaller than those of other Canadians, but more people live in them.
- Aboriginal homes are 90 times more likely than those of other Canadians to be without piped water. On reserves, more than 10,000 homes have no indoor plumbing.
- About one reserve community in four has a substandard water or sewage system.
- In the North, solid waste dumps and untreated sewage are contaminating earth, land, fish and animals.
- The cost of meeting the full needs of Aboriginal people for shelter, water and sanitation services is high, and governments are reluctant to accept it.
- First Nations argue that the provision of housing and services is a treaty right. The federal government disagrees.
- Construction in rural and northern communities, where many Aboriginal people live, is technically difficult and therefore costly. The housing market is too small and too dependent on the fortunes of resource industries to work well.
- Financing for new construction through banks and other lending institutions is difficult to arrange on reserves because of restrictions in the Indian Act and confusion about individual home ownership.
Until Aboriginal nations can take over the field, Canadian governments have an obligation to ensure adequate shelter for all Aboriginal people.
Most A boriginal people can make a contribution - some by taking on mortgage responsibilities, others by supplying labour or materials for construction and repairs or paying rent for existing units. This they should do, to the fullest extent possible, to free up scarce funds to help those in greatest need.
We are forced to dump our sewage in open pits and use outdoor privies at 30 to 40 below, winter temperatures. This practice causes people of all ages to get sick.
Chief Ignace Gull
Attawapiskat First Nation community
Moose Factory, Ontario
We propose that Canadian and Aboriginal governments, and Aboriginal people as individuals, contribute resources enough to ensure that housing needs are fully met within 10 years. The long-standing bones of contention standing in the way of action can be solved as follows:
- We believe that Aboriginal people and communities should help to meet their housing costs. We propose that federal and provincial/territorial governments take on about two-thirds of housing costs and Aboriginal people, once they reach a certain income level, take on about one-third.
- Regional Aboriginal institutions can be established to manage the financing, construction and maintenance of homes and community infrastructure.
- The issue of the treaty right to housing can be dealt with in the new treaty processes we propose.
- The issue of home ownership on reserves should fall under the jurisdiction of new Aboriginal nation governments and should be resolved in a way that provides incentives for residents to maintain and improve their homes.
Current federal projections lay out a timetable of at least nine years before all substandard facilities can be repaired or replaced. This is simply not fast enough for so fundamental a determinant of health and community morale.
Most of the communities with acute water and sanitation needs are small. Bringing their services up to standard will not require complicated technology or a big bureaucracy. It will require appropriate technology, adequate funding and knowledgeable, well-trained people to operate and monitor essential services.
We propose doubling the speed of remediation, so that all communities will have adequate water and sanitation services within 5 years.
Just as poor housing and services have harmful effects on health and well-being, so a turnaround in this sector could have broadly regenerative effects. For example,
- Building and maintaining homes, water lines, pumping stations, sewage treatment plants and so on will create new demand for local labour, skills and enterprise. The 10 year home-building and repair effort we recommend is expected to generate 178,000 person years of employment in the construction sector alone. It will also give local contractors experience they can apply to expanding their businesses.
- Communities will be able to pool their building requirements, creating still more possibilities. For example, the needs of a group of communities could support a cement company and other specialized businesses.
- Other economic spin-off effects could be greater still. Federal, provincial and territorial governments should be ready with equity capital to help stimulate local businesses in concert with the housing boom.
It can be done.
The Gesgapegiag First Nation community in eastern Quebec has developed an active housing program using government subsidies and credit from the local Caisse Populaire Desjardins. The band negotiates loans for residents willing and able to take on a mortgage and also trains and provides local labour to keep construction costs down.
Aboriginal Control of Aboriginal Education: Still Waiting Aboriginal people often say, "Our children are our future." By extension, then, the future depends on the effectiveness of education. Education shapes the pathways of thinking, transmits values as well as facts, teaches language and social skills, helps release creative potential, and determines productive capacities.
Aboriginal people are well aware of the power of education. Greater control over their children's education has been a demand for at least three decades.
Parental involvement and local control of schools are standard practice in Canada - but not for Aboriginal people. Instead, they have long been the object of attempts by state and church authorities to use education to control and assimilate them, during the residential school era, certainly, but also, more subtly, today.
By seeking greater control over schooling, Aboriginal people are asking for no more than what other communities already have: the chance to say what kind of people their children will become. In the main, Aboriginal people want two things from education:
- They want schools to help children, youth and adults learn the skills they need to participate fully in the economy.
- They want schools to help children develop as citizens of Aboriginal nations - with the knowledge of their languages and traditions necessary for cultural continuity.
As we work towards establishing Anishnabe political systems, we need to give attention to education as a way of achieving functioning Anishnabe nations...
Vernon Roote
Deputy Grand Chief, Union of Ontario Indians
Many of our proposals for change in education have been advanced before, by commissions and task forces stretching back to the 1970s. It is clear what needs to be done, and it is long past time to do it.
- Transfer of administrative responsibility for reserve schools to First Nations is a step in the right direction. But schools are still staffed primarily by non-Aboriginal teachers, and curriculums and teaching methods were designed for students with different needs and cultural backgrounds.
- Almost 70 per cent of Aboriginal children are taught in provincial or territorial schools, but the mainstream education system has few mechanisms of accountability to Aboriginal people and has made few attempts to reach out and involve Aboriginal parents.
- In all jurisdictions, spending on Aboriginal education is inadequate to reverse accumulated educational deficits.
To this end, we recommend the development of Aboriginal-controlled education systems, recognized by all governments and able to plan and deliver lifelong learning. Further, we are recommending that provincial and territorial schools take steps to ensure that the education they provide is fully appropriate for their Aboriginal students.
Education policy needs to ensure that appropriate learning takes place at each stage in the life cycle.
Aboriginal education as assimilation has always, everywhere, failed and
failed miserably and failed destructively... Aboriginal education for
self- determination, controlled by Aboriginal people, succeeds.
Dr. Eber Hampton
President, Saskatchewan Indian Federated College
Early Childhood Education In education, as in health, childhood is the foundational stage. Traditional family life provided a firm foundation of security and encouragement for Aboriginal children. Aboriginal families of today are not always able to provide this. Parents may be hampered by the effects of poverty, alienation, residential school experience, and dysfunctional family or other relationships. Many Aboriginal children arrive at school with special needs for understanding and support to liberate their in-born capacity for learning.
Like all children, Aboriginal children need to master the intellectual, physical, emotional and spiritual tasks of early childhood. Equally, they need grounding in their identity as Aboriginal people. We propose that all Aboriginal children, regardless of status or location, have access to dynamic, culture-based early childhood education. For elementary schools, we propose that
- all schools, whether or not they serve mainly Aboriginal students, adopt curriculums that reflect Aboriginal cultures and realities
- governments allocate resources such that Aboriginal language instruction can be given high priority, where numbers warrant
- provincial and territorial schools make greater efforts to involve Aboriginal parents in decision making
development for our future generations. We can accomplish this through
spirituality and communicating in our language.
Isadore Talouse
Teacher, Wikwemikong First Nation community
Education for Youth Aboriginal adolescents straddle two worlds - one where Aboriginal values and beliefs prevail, and another where television, popular culture and peer pressure offer competing values and priorities.
Aboriginal teenagers need a secure sense of self-worth to keep their balance in the storm of conflicting messages and demands. Many have not found that balance. Their confusion and distress are evident in high drop-out rates, teen pregnancy, substance abuse, defiance of the law and suicidal behaviour.
Aboriginal youth who spoke to the Commission said that they felt marginalized - unable to make their voices heard at school or in their home communities. We discuss several ways of empowering them in the next chapter.
It is critically important for Aboriginal adolescents to be able to live at home while attending secondary school. At age 13, they are not prepared for life away from a family and cultural base. Eventually, high school should be available in all Aboriginal communities. Where communities are very small, distance education may help make local high school programs possible.
Aboriginal youth who drop out before graduating need support and encouragement to return to school later. This is especially important for young women who leave because of pregnancy. Aboriginal and provincial authorities should take steps to make school re-entry easier and more attractive to Aboriginal youth.
A common concern of parents is when...the values and world view that
prevail at school contradict or ignore the existence of a different
perspective the child lives with at home...
Elsie Wuttunee
Calgary Catholic Separate School District No.1"Arial, Helvetica, sans-serif"
Education for Adults Many Aboriginal people reach adulthood without the skills, knowledge or credentials they need to find jobs or take up positions of responsibility in their communities. Their needs range from basic literacy and numeracy to advanced professional training. Federal, provincial and territorial governments have sponsored a range of adult training programs, but Aboriginal candidates face special barriers:
- Too few programs are accessible in or near their often remote communities.
- Courses lack relevance to their lives and circumstances.
- Entry requirements are insensitive to their backgrounds and cultures.
- Programs offer few of the personal supports they need, especially child care for adult women students.
All governments should co-operate to increase the number of these institutions, to put them on a stable financial footing, and to secure their place in the post-secondary system.
Mainstream colleges and universities see high drop-out rates among their Aboriginal students. To improve retention, barriers to success must be dismantled. Students may require assistance to qualify for entry to colleges and universities, and they may require special supports to stay the course. Models of support can be found in a number of provinces and institutions.
Aboriginal nations will want to pursue funding for post-secondary education in their treaty negotiations. In the meantime, the federal government should continue to pay the full cost of post-secondary education for status Indians. It should also provide a special post-secondary scholarship and assistance fund for Métis and non-status Indian students.
The Splats'in Daycare Centre of the Spallumcheen First Nation in British Columbia was designed on a traditional, extended family model. Elders and children participated in everyday activities such as caring for animals, cultivating a garden and doing traditional crafts together. Through daily exposure to the Shuswap language, the children started to become Aboriginal language speakers.
Education for Self-Government Aboriginal people and nations need the right kind of education to make self-government a reality and a success. First, they need an array of trained people for the jobs that will be created. Second, they need educational institutions to safeguard and advance their cultures, languages and knowledge bases and to apply traditional knowledge to the problems of the modern world. These needs can best be met by institutions operating at the regional or national level.
The most pressing need is for trained people. The availability of these resources varies from one Aboriginal nation to another. But all nations face growing demands for skilled managers and staff to fill a range of public service jobs: jobs in economic development, health and social services, public works, education, sports and recreation, and so on.
Detailed forecasts of personnel needs will emerge from planning by Aboriginal nations, but it is safe to say that there are not enough trained Aboriginal people to fill the posts that will be available.
The Commission proposes that Aboriginal nations investigate and establish targets for human resources development in key fields and that Canadian governments enter into partnership with them to offer flexible training opportunities, internships and exchange programs to achieve targets in designated areas. Governments should co-operate to mount a campaign to make Aboriginal youth aware of the opportunities soon to be available. The time for these steps is not after treaties and other agreements are in place but before, so Aboriginal nations are as ready as they can be to implement self-government. Education is a key ingredient in readiness.
As Aboriginal nation governments are put in place, they will increasingly take charge of planning and delivering lifelong learning to their citizens, co-ordinating their efforts with provincial and territorial institutions. Aboriginal education authorities are already being run by some local communities. The Nisga'a in British Columbia and the Mi'kmaq in Nova Scotia have signed agreements establishing comprehensive education authorities for their nations. Our recommendations encourage this trend.
The objectives of Métis self-government and economic development cannot
be achieved in the absence of educated and technically trained
individuals within our Métis communities...
Claire Riddle
Vice-President, Winnipeg Region
Manitoba Metis Federation
We also recommend education measures to protect and develop Aboriginal cultures:
- The Aboriginal Peoples International University
An Aboriginal-controlled university is the institution of choice to protect and extend traditional knowledge and to pursue applied research on issues of concern to Aboriginal nations. It would build on regional initiatives and promote collaboration among existing colleges. It would offer a co-ordinated network of courses and programs in First Nations, Métis and Inuit communities and through distance education. - An electronic clearinghouse
Despite the distances that separate them, Aboriginal people need to be able to communicate their experience of success and failure - in education reform and in all areas of self-management. It could take the form of a Canadian version of NativeNet in the United States, using the Internet. - An Aboriginal documentation centre
A substantial portion of the history of Aboriginal people resides in government files, church storerooms, and archives across Canada - the rest is safeguarded in the memories of Aboriginal people, many of whom are elders now. Records and recollections of history, both the good and the bad, should be collected, preserved and made more accessible to all Canadians, before it is too late. We see an Aboriginal-controlled documentation centre as the best way to do so.
Aboriginal cultures have never been static. They have always responded to the flow of human experience. They are not frozen in irrelevance; neither are they 'lost' or 'dead'.
More and more Aboriginal people are opening their hearts and minds to the relevance of traditional beliefs and practices for life in the modern world and to their powerful role in restoring a sense of self, collective identity, and purpose to those who have lost their way.
Because of past policies that ignored and suppressed Aboriginal languages, ceremonies and living traditions, Aboriginal cultures are endangered. Positive action is needed to help those seeking ways to express, conserve, restore and document their cultures, in all their richness and diversity.
Still we survive, and we will continue to survive. Our language is still alive, as well as our culture, and we are very proud to be Indian.
Roly Williams
Noee Kwe Adult Education Centre
London, Ontario
Protective action should extend to the material forms of Aboriginal cultures (artifacts, works of art and craft, historical sites) and to their dynamic forms - songs, dances, stories and teachings that bring collective memory, insight and inspiration to Aboriginal people and to the world.
The living, changing cultures of Aboriginal peoples have an important role in helping to overturn the myths and stereotypes, twisted facts and misunderstandings that prevail in much of non-Aboriginal Canada. Doing so will require dialogue with knowledgeable Aboriginal communicators.
Knowledge of one another, and a sharing of wisdom, are essential to a true partnership of peoples.
All along the Foothills, ceremonial leaders are spiritually guided to
conduct ceremonies at specific sites, some of which are off-reserve,
located on provincial or federal Crown lands. Our Elders are being denied
full access...
Alvin Manitopyes
Assembly of First Nations Environmental Committee
Cultural Heritage The cultures of Aboriginal peoples are tied to the land - to specific places held by tradition to have been given to them to care for and to supply what they need. Their histories and mythologies are tied to features of the landscape. The bones of their ancestors are buried there. With resources from the land, they have fashioned sacred objects for ceremonial purposes. They have carved masks and crests to record family histories and lineages and told of memorable events in songs, stories and dances.
But Aboriginal people have lost control of many of their sacred sites. They have watched as objects of great power and significance were taken away by outsiders and displayed in distant museums, often out of context and in ways that offend their sacred value. Aboriginal people have made justifiable demands for
- protection of historical and sacred sites
- recovery of human remains for proper burial
- repatriation of artifacts of particular importance
- prevention of the appropriation (theft) of songs, stories and other intellectual property by non-Aboriginal people
Governments should co-operate in making an inventory of sacred sites, in part so that those threatened by development or natural erosion can be saved. Elders should be involved in identifying sites requiring urgent attention.
We also urge museums and cultural institutions to adopt ethical guidelines for the collection, display and interpretation of artifacts related to Aboriginal cultures. Aboriginal people need greater access to their own cultural heritage, more opportunities for cultural education, and increased resources to develop their own facilities for display and study.
Language is one of the main instruments for transmitting culture from one generation to another.
Living Languages Language is one of the main instruments for transmitting culture from one generation to another and for communicating meaning and making sense of collective experience.
In Canada, there are 11 Aboriginal language families and more than 50 different languages. The number of Aboriginal language speakers is only a fraction of the Aboriginal population: about one person in three over the age of five. Most are middle-aged or older. Even the languages in most frequent use - Mi'kmaq, Montagnais, Cree, Ojibwa, Inuktitut and some Dene languages - are in danger of extinction because of declining fluency in the young.
One Elder has said, 'Without the language, we are warm bodies without a
spirit'.
Elder Mary Lou Fox
Ojibwe Cultural Foundation
Sudbury, Ontario
Minority languages all over the world are declining in the face of culturally dominant languages - especially those used in the media and popular culture. Aboriginal languages suffered a severe blow during the era when every child was forced by school policy to speak English or French.
The threat of their languages disappearing means that Aboriginal people's distinctive world view, the wisdom of their ancestors and their ways of being human could vanish as well. Language protection requires
- maintaining or increasing the number of fluent speakers
- using the language as a medium of communication in everyday life - especially in the family
Each Aboriginal nation will have to decide how far it can go in preserving its languages and develop policies to match. In the meantime, the speakers of Aboriginal languages are aging and dying. We propose the establishment of an Aboriginal Languages Foundation to document, study and conserve Aboriginal languages and to help Aboriginal people arrest and reverse the loss of languages that has already occurred.
I Lost My Talk
by Rita Joe
I lost my talk
The talk you took away.
When I was a little girl
At Shubenacadie school.
You snatched it away:
I speak like you
I think like you
I create like you
The scrambled ballad about my world.
Two ways I talk
Both ways I say
Your way is more powerful.
So gently I offer my hand and ask,
Let me find my talk
So I can teach you about me.
Communications Canada has always been held together in part by its communication links - from the river systems of the fur traders to the transcontinental railroad to the satellite signals linking us today. The information passing along these channels shapes and defines our view of the world and of one another. The need for accurate information and realistic portrayals of Aboriginal people is evident.
But Aboriginal people are not well represented by or in the media. Many Canadians know Aboriginal people only as noble environmentalists, angry warriors or pitiful victims. A full picture of their humanity is simply not available in the media.
Mainstream media do not reflect Aboriginal realities very well. Nor do they offer much space to Aboriginal people to tell their own stories - as broadcasters, journalists, commentators, poets or story tellers. Aboriginal people have little opportunity to tell Canadians in their own ways and their own words who they are.
Because Canadians do not hear Aboriginal points of view, they are often left with mistaken impressions about Aboriginal people's lives and aspirations and the reasons for their actions.
I quote from Louis Riel: 'My people will sleep for 100 years, and when
they awake, it will be the artists who give them back their spirit.'
Marie Mumford
Association for Native Development
in the Performing and Visual Arts
Aboriginal people are also severely limited in their opportunities to communicate with one another. They have few media services of their own - and even those lost almost all their funding in recent cuts. Domination of the media by the imagery and preoccupations of non-Aboriginal people contributes to the weakening of Aboriginal cultures. In the North, for example, the arrival of television in the 1960s helped transform the society in just one generation.
We make proposals in four areas:
- The Canadian Radio-Television and Telecommunications Commission should require those who hold broadcast licences in areas with significant Aboriginal populations to provide air time for an Aboriginal presence.
- Mainstream media, both public and private, should provide for a greater Aboriginal presence in their offerings.
- The federal government should support training of Aboriginal people for media positions.
- The federal government should provide core funding for Aboriginal-controlled media and incentives for private support for these media.
After [poet] Pauline Johnson's untimely death in 1913, almost six decades were to pass before another Aboriginal author would be published in Canada.... In spite of all it has to offer, Aboriginal literature is still discriminated against in the Canadian publishing industry.
Greg Young-Ing
Theytus Books
Vancouver, British Columbia
Given their importance, it is perhaps surprising how little public or private support Aboriginal arts and artists actually receive.
- The great majority of the books about Aboriginal people marketed each year by major Canadian publishers are written by non-Aboriginal authors.
- Aboriginal publishers report difficulty securing support from government agencies that support publishing.
- Aboriginal arts that were once part of everyday life and ceremonial use are relegated to the status of crafts and artifacts and housed predominantly in museums, rather than displayed in art galleries.
- The Indian affairs department has been instrumental in creating a market for Inuit arts and crafts and provided general support for training in the visual and performing arts. But it offers minimal help in mounting productions, which are a crucial part of training.
- Arts funding agencies are only beginning to look for ways to judge Aboriginal forms and artistic creations, at least in part according to culture-specific criteria.
The Commission sees a need for active support for at least a generation, to encourage revitalization and development of visual, literary and performing arts. We propose establishment of an Aboriginal Arts Council, a review of granting criteria in mainstream institutions, and increased support for training and facilities for display and performance.
Better Lives for Aboriginal People Discussions of Aboriginal affairs sometimes seem weighted toward issues of governance, law, constitution making and institution building. But the real point of these mechanisms is to make Aboriginal lives better.
Among the Gitksan and Wet'suwet'en, there is no mother tongue word for health. However, they do have a word for strength, which is interchangeable [with] health. They also speak of well-being. This well-being is associated with high self-esteem, a feeling of being at peace and being happy... This includes education. It includes employment. It includes land claims. It includes resource management. All of these lead back to wellness and well-being.
Rhea Joseph
Native Brotherhood of B.C. on Health Issues
Over the years, much time and energy and many dollars have been spent trying to do this. Yet serious problems of ill health, miseducation and disturbed family life remain. Aboriginal people and communities are worn down by the persistence of these problems. Canadians feel them as a drag on national progress.
Are the social problems of Aboriginal people intransigent? Hopeless? Certainly not. But ways of organizing and delivering human services for Aboriginal people must change fundamentally.
Patterns of distress, violence and self-destructive behaviour will never shift fully toward well-being without a concomitant shift of power, control and resources. But Aboriginal control is not a panacea - self-government is not a magic wand, and it is no guarantee of good results. It is always possible that Aboriginal control will be exercised badly from time to time. In any case, it will take time for self-government to have an impact.
In the meantime, improving the lives and strengthening the capacities of Aboriginal people is a worthwhile end in itself. It is also part of making Aboriginal control work, as illustrated by the circle of well-being described at the beginning of this chapter.
How can it be done? In four ways:
- Canadian governments can make room for Aboriginal initiative and control.
- Leaders at all levels can give greater prominence to social policy.
- Human services can be shifted from piecemeal to holistic programming.
- Individuals in need of housing, healing, schooling and other kinds of help can be provided for along the lines proposed by the Commission.
Many Peoples, Many Voices In the first three chapters, we discussed many of the things that matter most to Aboriginal people. But it is misleading to imply that all Aboriginal people share identical concerns and priorities.
Some groups have concerns that cut across cultural and nation lines. Women, youth, elders, people living in cities and those living in the North have specific concerns and proposals for change, many of which they presented to the Commission. We recognize the multiple realities of Aboriginal peoples, and in this chapter we give them voice.
By grouping people and ideas in this way, we don't want to imply that all women or all Métis persons or all northerners agree on issues and solutions. They do not. But in our conversations with them, some dominant themes did emerge, and we present them here. We hope that everyone who spoke to us will find something of themselves in what follows.
Our people will not heal and rise toward becoming self-governing and
strong people, both in spirit and vision, until the women rise and give
direction and support to our leaders. That time is now...
Nongom Ikkwe of the South East Region, Manitoba
Brief to the Commission
Voices of Women Women played a prominent part in the political and cultural life of many traditional Aboriginal societies. First and foremost, they were honoured as the givers of life. Their ability to bear, raise and nurture the new generation was seen as a special gift from the Creator, a source of awesome power and equal responsibility.
Women's leadership roles varied from nation to nation. Mohawk women, for example, were active in the political life of clan, village, nation and confederacy. Inuit women deferred to male leaders in public decision making but had considerable influence in social relations and family affairs, especially as they grew older. In some Aboriginal societies, women had a more subordinate role; even then, their skills and knowledge gave them an essential role in the community.
We are under no illusion that women's lives before contact were free of social problems. But Aboriginal women told us that, with the coming of colonial powers, a disturbing mind-set crept into their own societies. Policies and laws imposed by foreign governments ruptured cultural traditions and introduced discrimination against women.
Today, Aboriginal women are organized in ways that allow them to press for action on issues that concern them. Largely silenced for many years, now they will be heard.
Clear divisions of labour along gender lines existed, [but] women's and
men's work was equally valued... Everyone in the camp worked hard and
everyone had a specific role...
Martha Flaherty
President, Pauktuutit Inuit Women's Association
Women and Indian Status Their first concerns are for their immediate families and communities. But they have seen first-hand how laws and policies can have devastating consequences when put into action.
We have already described how Aboriginal people were restricted and controlled by the Indian Act and other laws originating in the nineteenth century. Women were doubly disadvantaged by the sexist nature of this law, rooted as it was in Victorian ideas of race and patriarchy. For much of this century, women were not allowed to vote in band elections, could not own or inherit property, and were treated as the 'property' of their husbands in many contexts.
Perhaps most offensive of all, a woman's identity as a First Nations person came to depend on the status of her husband. Even if she spoke her Aboriginal language, practised the traditions of her nation, and raised her children in the ways of her people, she ceased to be 'Indian' - in the eyes of the government - the moment she married a non-Indian. By extension, her children also ceased to be 'Indian'.
Women and children who lost Indian status lost all the rights that went with it. Men who married non-Indians did not suffer the same penalties. After a decade of challenges by Aboriginal women, the government made an effort to correct the injustice by introducing Bill C-31 in 1985.
Bill C-31 allows for the reinstatement of those who lost Indian status under the old rules and gives Indian status to their children. However, the process and criteria for first-time registration are confusing - and still offensive, because authority to determine who can be recognized as a status Indian still lies with the federal government, not with Aboriginal people.
As well, the children of women reinstated under Bill C-31 are still treated less favourably than those of men who married non-Indians before 1985. And children born of such unions after 1985 generally cannot pass their status on to their children.
Given enough time and enough marriages outside status boundaries, 'status Indians' could disappear completely as a category.
A further problem is that Bill C-31 delegated authority to bands to determine who can become a band member and consequently who can live on reserve lands. Those who acquired or regained status under Bill C-31 are not automatically given band membership or the rights that go with it. Access to subsidized housing on reserves is hotly contested in some places. Bill C-31 women and their children may suffer materially as well as psychologically from exclusion enforced by band decisions.
Instead of solving the status question once and for all, Bill C-31 created new divisions and new fears. As we see it, the solutions should be found by Aboriginal people themselves, as part of the nation-building process outlined in Chapter 2. Definitions of membership - or citizenship - in Aboriginal nations are not the business of Canadian governments. However, Aboriginal women and their organizations must be assured the resources to participate fully in this process, and in all aspects of nation building, before the federal government vacates the terrain.
As it stands now, I am a status person under section 6.2 of Bill C-31.
My two girls are not Native in the government's eyes. They have one-quarter Native blood. Do I tell my daughters that they are not Native because the government says it's so? No, I don't think so.
Connie Chappell
Charlottetown, Prince Edward Island
A Priority on Healing The need for Aboriginal people to heal from the consequences of domination, displacement and assimilation is perhaps the overarching concern of Aboriginal women. They have seen the social fabric of their communities severely damaged by mistaken policies. Many told us that healing must take place before self-government can succeed. As they put it, only healthy people and healthy communities can create healthy nations.
Breaking free of the pain, anger and resentment that are the legacy of the colonial past means allowing Aboriginal people and communities to initiate their healing strategies - initiatives that draw on traditional practices and an understanding of people's needs. They want more and better community health and social services, with adequate resources and a preponderance of Aboriginal staff.
Family violence is a particularly alarming manifestation of the erosion of traditional norms of interpersonal respect. Many women spoke to us of fear for the safety of their children and themselves and the need for places of refuge. In some communities, especially smaller ones, it can be hard for a woman and her children to find a safe haven.
Aboriginal women want to see their leaders and communities take a zero-tolerance stand against family violence. They see a great need for more culturally appropriate counselling services for both perpetrators and victims.
Voices of Elders Elders are known by many names in Aboriginal societies: the Old Ones, the Wise Ones, Grandmothers and Grandfathers and, in the Métis Nation, Senators. They are teachers, philosophers, linguists, historians, healers, judges, counsellors - all these roles and more.
They live the culture, they know the culture, and they have been trained in it. These are the true elders.
Elder Vern Harper
Toronto, Ontario
Elders are living embodiments of Aboriginal traditions and cultures. Through the Creator's gifts and their years of walking the earth, they have acquired knowledge and experience to live well and thrive in the physical world. They are in tune with the land, the cycles and rhythms of nature and life.
Elders are keepers of spiritual knowledge that has sustained people through thousands of years - knowledge of ceremonies and traditional activities, of laws and rules set down by the Creator to enable the people to live as a nation.
Both types of knowledge are equally important and valid. The spiritual and the physical intertwine; the natural and the supernatural wrap like a braid around the daily act of living. The realm of the sacred becomes a part of everyday life.
Not all elders are seniors, nor are all old people elders. Some are quite young. But elders have gifts of insight and understanding, as well as communication skills to pass on the collective wisdom of generations that have gone before.
Elders do not hoard their knowledge. Their most important task is to pass it on, so that the culture of their people can stay vital and responsive to changing times and conditions. The continuity of their nations depends on them.
The human voice leaves a lasting imprint on human memory and feelings, because so much heart and spirit can be communicated through the voice, like no other medium.
Esther Jacko
in Voices: Being Native in Canada (1992)
They transmit culture and mores through action, example and oral tradition - stories, jokes, games and other shared activities. The experience is personal; speaker and listener share the event. Hearing stories and teachings, listeners feel the pain, the joy, the victories and defeats of their people. They reach out to one another across time. Past, present and future become one.
With the help of their elders, Aboriginal nations have struggled to maintain their traditional values, languages and knowledge base - despite aggressive external forces vying to destroy them. Aboriginal people have fought fiercely to preserve their traditions, knowing that they are the principal source of their identity, self-respect and strength as individuals and as nations.
Elders are living embodiments of Aboriginal traditions and cultures.
Today we see a great resurgence of interest among Aboriginal people in their languages and traditions, many of which were fading until recently. Presenters at our public hearings told us that new institutions must build on the core teachings of Aboriginal tradition and the contemporary insights of the elders.
But reviving and reintroducing tradition does not mean turning back the clock. Most of the world's people live their lives according to religions and philosophies that are hundreds or thousands of years old. Similarly, Aboriginal traditions and teachings took their first form long ago, but they can be reshaped to be useful in the modern world.
The success of elders working with Aboriginal prisoners illustrates one part they can play. When we spoke to Aboriginal offenders, they told us how elders have helped them understand themselves, how they used counselling and traditional ceremonies to help them with the inner problems that contribute to criminal behaviour. Elders have been valuable in other judicial initiatives as well, especially in sentencing circles.
Our vision is to be happy. We want to relax and have dreams and laugh.
We want to love and talk... We want to know our Native culture. We want to
respect each other. We have to have a better future.
Robert Quill
Merritt, British Columbia
Elders told us that they have much more to offer than they are now being asked to give. They can be (and in some cases already are) significant contributors in education, health and social services, land and resource management boards, and efforts to build Aboriginal governments. They can contribute at almost every stage and every level. In education, for example, much is lost if elders are merely brought into classrooms once a year for a 'cultural awareness' day. They could be helping to reshape curriculum, teaching practices and administration styles.
Aboriginal people want to see the ways of their ancestors recognized, protected and used. Elders must have access to sacred sites for ceremonies and to gather traditional plants and herbs. Elders, in turn, will contribute their gifts of insight and knowledge to the nation. This is as it should be, for elders are essential to the perpetuation and renewal of the Aboriginal way of life.
We don't need money all the time. What we need is our nations, our
people, our communities to come together as one and to work together as
one, to sit down and say, 'Okay, this is what we've got to do.
Stan Wesley
Moose Factory, Ontario
Voices of Youth Aboriginal youth make up the largest segment of the Aboriginal population. An estimated 56.2 per cent of Aboriginal people are under 25. These young people will carry on the initiatives and live the dreams of Aboriginal nations in the next millennium.
Some of the most dynamic presentations we heard were from youth. They showed insight and heartening optimism in discussing the many serious issues affecting their life chances. They are looking for solutions that are practical and can be implemented right now in their communities. They are undaunted by political and administrative hurdles. They want to get the job done in the quickest, most effective way possible.
But youth do not feel their visions and ideas are being recognized by their leaders. They see themselves as a wasted resource. They urged Aboriginal organizations to follow the lead of the National Association of Friendship Centres and the Inuit Circumpolar Conference, to take steps to involve them more deeply in all community matters.
Aboriginal youth described three overarching goals for the future:
- Recognition and involvement. They want to participate more fully in community and nation life and to work together with their peers in other Aboriginal nations on issues of common concern.
- Empowerment. Youth want the tools and skills to solve their own problems. They talked to us about their wish for political empowerment, which means having a voice at the local, provincial and national levels of governance. They talked about economic empowerment as well, for they know they need jobs to break the cycle of dependence in which some of their kin have been trapped.
- Healing. In harmony with Aboriginal women, youth saw healing as a necessary first step to their personal empowerment. They spoke about healing the spirit, the mind, the emotions and the body.
Healing of the mind implies a school environment in which the contributions of Aboriginal peoples to Canada and the world are studied, respected and validated. Youth need a curriculum inclusive of Aboriginal history and present-day realities. They need learning institutions run by Aboriginal people for Aboriginal people. They need better financial support to undertake and complete their studies.
The youth today need productive activities... As soon as they do
something worthwhile, their self-confidence will build and they will feel
better about themselves.
Kathy Nelson
Roseau River, Manitoba
Healing of the emotions can perhaps best be done with the help of elders. Aboriginal youth see elders as being able to offer them counselling in times of trouble from a contemporary perspective, informed by a traditional worldview. At the same time, they need to create space for serious talk among themselves and to share the emotional load that comes with being Aboriginal in Canada today.
Healing of the body completes the circle. Young people need more opportunities for sport and recreation, to help them build social bonds in their communities, create bridges to other communities, and develop leadership and team-playing capacities. Some told us that the social problems they see around them could be alleviated through recreation programs designed with these goals in mind.
Aboriginal youth are now served - not very well - in a piecemeal way by programs and initiatives of various departments and governments. We see a need for a co-ordinated, Canada-wide policy framework to deal with the concerns of Aboriginal youth - to take an integrated approach to issues of education, justice, health and healing, employment, sport and recreation, and urban concerns.
Although those who spoke to the Commission were largely optimistic about what lies ahead for them, Aboriginal youth face many obstacles to a safe and satisfying future. With a little help, they are ready to roll up their sleeves and do their part to refashion the future.
Voices of Métis People Some 139,000 Canadians identify themselves as Métis. Their history dates back hundreds of years, but most Canadians know little about them. Métis are distinct Aboriginal peoples, with their own history, language and culture.
European fur traders and settlers began to associate with and marry indigenous women soon after they arrived in the Americas. In the early years, children of those unions were usually raised in one culture - either European or Aboriginal. But as time passed, the offspring of mixed marriages began to combine elements of both cultures, to produce something original - new Aboriginal peoples, the Métis.
Métis culture grew out of the circumstances of their lives. On the prairies, the language of the Métis - Michif (and its many dialects) - was a practical blend of French and several First Nations languages. Constant travel inspired portable art - exuberant song, dance and fiddle music and skilfully decorated clothing. Some Métis formed permanent settlements around trading centres. The buffalo hunt was an important organizing feature of other, more mobile Métis groups. For eastern Métis, a fishing economy shaped settlement patterns.
Using their family connections, their wilderness skills, and their knowledge of European and Aboriginal languages to extend European penetration into the North American interior, Métis people played a crucial role in building the country.
In Chapter 2, we defined the term nation and recommended a recognition policy for Aboriginal nations. The people of the western Métis Nation fit our criteria of nationhood. They have long been a culturally distinct people, they demonstrate social cohesiveness, and they have a record of political effectiveness. They might well be one of the first peoples to move toward nation status under the approach we propose. We expect that the Métis of Labrador and other Métis communities would follow suit, on a more extended timetable.
I'm Métis... It's a cultural, historical issue, and it's a way of life issue. It's not what you look like on the outside. It's how you carry yourself around on the inside that is important, in your mind and your soul and your heart.
Delbert Majer
Saskatchewan Metis Addictions Council
Regina, Saskatchewan
The government of Canada should deal with Métis people, like all other Aboriginal peoples, on a nation-to-nation basis. The Constitution Act, 1982 already recognizes them as Aboriginal peoples, but the government has declined to extend most of its Aboriginal programs and services to them.
The government maintains that its responsibility for "Indians, and Lands reserved for the Indians", set out in section 91(24) of the Constitution Act, 1867, does not include the Métis. We disagree. More than 50 years ago, the Supreme Court ruled that federal jurisdiction under section 91(24) includes Inuit. The government now offers most of its programs and services to them. It is unjust and unreasonable to withhold from Métis people the services and opportunities available to other Aboriginal peoples.
The general goals of Métis people are not very different from those of other Aboriginal people: reinforcing their culture, assuming political responsibility for themselves, obtaining a viable land base for economic and cultural development, and ensuring that their children are healthy, well educated and ready to lead the nation in their turn.
A land base is particularly important because, except in Alberta, Métis people have no territory of their own. Vast tracts of land in the prairies were to have been distributed to them under the Manitoba Act, 1870 and the Dominion Lands Act of 1879, by means of a system known as 'scrip'. But those who tried to collect the land they were owed encountered delays, inefficiency, stonewalling and outright scams.
Often the allocated land was so far distant from a claimant's home base that his only real option was to sell it for whatever he could get. Local land speculators were ready and willing to buy - at bargain basement prices.
Moreover, the scrip system was not intended to result in a true Métis land base. Scrip was given to individuals, entitling them to settle with their families on discrete parcels of land. It was nothing like the reserve system, where First Nations shared an exclusive territory. The government of the day feared the growing numbers, economic strength and fire power of Métis people and aimed to break up their collectivities.
This history of sharp dealing has led the Métis of the prairies to argue that their land rights have never been extinguished. Métis in other parts of the country escaped the scrip debacle and now claim a land base in the general context of Aboriginal rights.
Aboriginal nationhood has always been closely connected to the land. To fulfil their legitimate social, cultural, political and economic aspirations, Métis people need their own land.
We urge federal, provincial and territorial governments to proceed rapidly with nation recognition so that Métis nation(s) can negotiate treaties or accords in the same manner as other Aboriginal peoples. These would specify the powers of their governments, the extent of their land base, the compensation owing to them for past injustices, their Aboriginal rights (such as the right to hunt, fish and trap on Crown land in all seasons), and the nature of their fiscal arrangements with other governments. These negotiations will be neither quick nor easy - all the more reason why they should begin now.
Métis people entered the twentieth century uprooted, fragmented and dispirited. They are determined that, as the next century unfolds, they will regain their rightful place as self-governing, self-sufficient, culturally vibrant Aboriginal people living in a more egalitarian Canadian society.
There has got to be a land and resource base for Métis. It's
fundamental... There is a myth out there that when you talk land and
resources that Métis may have less rights than some other Aboriginal
people in this country... Our rights co-exist with the other Aboriginal
peoples in this country.
Gary Bohnet
President, Metis Nation-Northwest Territories
Voices from the North Canada's North is home to Inuit, First Nations and Métis people and to non-Aboriginal people drawn there by the astonishing beauty of the North, its promise of economic opportunity, and the unique way of life it offers. It is a proving ground for political ideas and systems, a place where bold new initiatives can be tested. The North thus remains a place of exploration and discovery, of charting new paths and exploring new frontiers.
The Political Dimension The Aboriginal peoples of the North live under a variety of political arrangements.
The 17 First Nation communities of the Yukon recently negotiated an Umbrella Final Agreement (ufa) that greatly increases their land and resource base and makes available a significant pool of capital for their use. The ufa also provides a framework for individual self-government agreements and, for the first time, does not require blanket extinguishment of Aboriginal title
The essence of the relationship between Inuit and Canada is an unequal power relationship in which Inuit rights have often been ignored and Inuit powers have been usurped by governments not of our making. The Inuit self-government and land claims agenda hopes to correct this by negotiating new government bodies in our territories, and asserting our rightful status as a people while respecting the human rights of other people.
Rosemarie Kuptana
President, Inuit Tapirisat
Dene signed two of the historical treaties, Treaty 8 and Treaty 11. As well, two contemporary land claims have been settled, one with the Gwich'in Dene and Métis, the other with the Sahtu Dene and Métis. The Dogrib are currently negotiating a third claim. Dene elsewhere in the North expect to achieve self-government through implementation of their treaties.
The Métis of northern Canada are not part of Treaties 8 and 11, but they are included in the two modern claims agreements that have been reached. They are seeking ways to restore and protect their rights in a combined process of constitutional development and land claims.
The 38,000 Inuit living in the North have exercised their right of self-determination through 'public government' (a form of governance discussed in Chapter 2). Eligibility to participate in governance is based on long-term residency, not Aboriginal nation or group membership. But because Inuit form a majority on their traditional territories, they can control government activity.
Most Inuit in the North share in one of three major land claims agreements: the James Bay and Northern Quebec Agreement, signed in 1975; the Inuvialuit Final Agreement (1984), covering the Inuvialuit in the western Arctic; and the Nunavut Land Claims Agreement Act and the Nunavut Act (1993), which will create a new territory in the eastern part of the Northwest Territories in 1999. Labrador is the only region settled mostly by Inuit that is without an agreement. The government has transferred administrative authority to Labrador Inuit in specific program areas, and they hope that a broader agreement can eventually be reached.
The pace of political change in the North over the last 20 years has been remarkable. People in all regions are settling in to build governing institutions that reflect the social and cultural variety of northern peoples.
The Aboriginal people are, by tradition, people of the land. Their very
nature is tied strongly to the land and any answer to the economic
problems must include their remaining on the land.
Rae Stephensen
Old Crow, Yukon
Environmental Stewardship Most Aboriginal northerners make their living in the 'mixed' economy. Households combine cash income from a variety of sources (employment, welfare, art and craft production) with hunting, fishing and other harvesting activities. As jobs come and go, as fish and fur prices rise and fall, as their circumstances change, people shift their mix of activities to match.
The health of the mixed economy depends on the health of the environment. Environmental stewardship is thus a matter of survival for northern Aboriginal peoples - survival of the mixed economy and their way of life.
Most northern Aboriginal people favour commercial development - but only if it happens in ways that respect the land and all its life forms. However, the legacy of many resource extraction projects and of military installations that still dot the North has been extensive environmental damage.
Northerners speaking to the Commission expressed strong views about the need to clean up these sites and prevent future pollution; to improve the operations of regulatory bodies; and to use Aboriginal knowledge of natural phenomena to ensure sustainable resource use.
Initiatives such as wildlife co-management boards, which bring the combined expertise of Aboriginal hunters and non-Aboriginal scientists to bear on protection and harvesting issues, are an example of a northern approach to environmental stewardship that should be promoted and extended.
Supporting the Northern Economy Even with a healthy environment, a question remains: how will all the people of the North make a living in the future? The adult population will grow significantly over the next decade, outstripping the most optimistic forecast of new jobs. The cost of living is high, and public spending will not be able to meet all needs.
Aboriginal people can and should play a larger role in designing measures to increase self-reliance among those who, because of their circumstances, may always need income supplements of some kind. Programs that draw on Aboriginal values, self-awareness and creativity will have far more positive effects on those who need help than current programs have.
For example, funds from social assistance programs could be used to support traditional harvesting or paid labour of all kinds. In either case, the community would benefit from promoting self-reliance.
Our report also contains proposals for supporting the wage sector. Aboriginal people in the North have never shared fully in the economic benefits of resource extraction in their traditional territories. We describe ways for non-resident businesses and industries to give back something of what they are taking out of the North - by recruiting more Aboriginal employees, helping to develop a more skilled labour force, supporting local businesses, and engaging in more joint ventures with Aboriginal people, communities and nations.
Taking Charge Aboriginal people's way of life has been transformed in the past two decades. Where once they moved freely on the land, most now live in settled communities. Where once they had the independence - and the insecurity - of small hunter-gatherer societies, most now depend on wage employment or social assistance.
Today we find that a lot of our people who come into the urban setting are unable to live in the modern world without their traditional values.
Nancy Van Heest
Urban Images for First Nations
Vancouver, British Columbia
For some, the result has been a breakdown of traditional norms and values and in the responsible social behaviour that grew from them. Many northerners trace the abuse of alcohol and other social problems to the pace and scale of the changes they have experienced.
We support their intention to take charge of the institutions, processes and programs that will direct and control change in the North. This will allow them to work toward new codes of responsible social behaviour and new ways of sharing the frontier that is also their homeland.
Voices of Urban Aboriginal People Almost half of all the Aboriginal people in Canada live in urban areas, and as many Aboriginal people live in Winnipeg as in the entire Northwest Territories. Many Canadians will find these facts surprising, and governments certainly appear to have given them little thought in policy and program decisions.
This information and policy vacuum can be traced, at least in part, to long-standing ideas about where Aboriginal people 'belong'. Canadians and their governments seem to believe that Aboriginal people were not meant for city life - or that, if they come to the city, they should live like 'ordinary Canadians'.
But culture is not something Aboriginal people discard at the city limits. The cultures in which people are raised and given their identity reside deep inside them and shape every aspect of being - wherever they happen to be living.
Who Are Urban Aboriginal People? Some 320,000 self-identified Aboriginal people live in cities - that's 45 per cent of the total Aboriginal population, and the proportion is expected to grow.
Aboriginal people come to the city for many reasons. Often they seek new opportunity - education, a job, a chance to improve their lives. Some women leave home to escape abuse. Others are denied residence in their home communities (Bill C-31 notwithstanding). Whatever the reasons, Aboriginal women outnumber men in the urban population.
The city does not always keep its promise of a better life for Aboriginal people. They are markedly disadvantaged in comparison to their non-Aboriginal neighbours. In general they have less education, are less likely to have jobs, and are more likely to be poor.
The Question of Identity Aboriginal people face an enormous struggle to maintain culture and identity in urban settings - let alone pass them on to their children. City life, with its myriad cultures and lifestyles, does not necessarily validate theirs. Episodes of racism lead many to question their identity and self-worth. Some told us they fear losing themselves, or they feel torn between worlds. Others repudiate their identity by denying their aboriginality or falling into self-destructive behaviour.
Culture is not something Aboriginal people discard at the city limits.
In our view, Aboriginal people should be able to feel at home and find affirmation of their identity wherever they choose to live. For Aboriginal culture to survive in cities, thriving communities are needed, with culture-based institutions to serve and support them.
In our public hearings, friendship centres were often described as places where any Aboriginal person can find support and acceptance in the city. The centres have long experience in delivering cultural education and rediscovery programs, and they should have secure funding from the federal government to carry on their work.
The most effective way to catch these problems before they start is through strengthening an individual's identity and awareness of the community that exists in the city.
David Chartrand
President, National Association of Friendship Centres
In some cities, Aboriginal people have opened their own schools, with cultural survival as a main goal. In addition to subjects set by the provincial curriculum, they teach Aboriginal languages, history and traditions. Elders are normally involved, an important connection for youth in the absence of the extended family.
As discussed in Chapter 3, Aboriginal child and family service agencies are also becoming more common. With their policies of in-culture child placement where possible, they are also a bulwark against the gradual assimilation of urban Aboriginal people.
Unfortunately, governments offer an uneven checkerboard of programs and services for Aboriginal people in cities. They usually have only short-term or pilot project funding and are limited to a few aspects of life, such as housing and daycare.
We propose that all levels of government co-operate to increase support for cultural survival initiatives. The ideas are many, but funding has been all too meagre.
A Question of Responsibility Many of the problems described by urban Aboriginal people stem from the lack of a coordinated approach to their concerns. They do not receive the same level of services and benefits from the federal government as First Nations people and Inuit living in their home communities (even if they have Indians status). Yet they face obstacles to using the provincial programs available to everyone.
Self-determination for individuals and families is the foundation of
Aboriginal people both on and off reserve.
Dan Smith
President, United Native Nations
Vancouver, British Columbia
The federal government usually takes the position that, once they have left their reserves or settlements, Aboriginal people are no longer a federal responsibility. Yet some provincial authorities argue that status Indians remain the responsibility of the federal government.
In our view, the federal government should be responsible for
- initiatives related to the emergence and operations of urban Aboriginal governments;
- services arising from treaty entitlements beyond those normally provided by provinces;
- any special services for urban Métis people, beyond those provided by the provinces, that may be agreed in future self-government negotiations.
We also see a need for enriched or remedial services, to help Aboriginal people achieve a quality of life similar to that of other urban Canadians. This cost should be shared by federal, provincial and territorial governments, according to a formula reflecting the fiscal capacity of each.
We would like to see urban services delivered on a 'status-blind' basis. That is, they should be available and accessible to all Aboriginal people, regardless of their nation of origin. In some provinces, however, urban services are being delivered to First Nations and Métis people separately. Where this system is working well, we see no reason to disrupt it.
Structures don't make change - people do.
Self-Government in the City One of the toughest issues in the urban context is self-government. It is fairly easy to imagine self-government in Aboriginal communities with a discrete land base. But what does it mean in cities? Will there be 'Aboriginal zones', with their own laws and governments?
We identified three possible approaches to self-government in urban areas:
- The first involves the reform of local government services, to ensure Aboriginal influence. It would require guaranteed Aboriginal representation on boards and agencies whose activities directly affect Aboriginal people. Cities with a large Aboriginal population would establish Aboriginal affairs committees to give advice and guidance and co-management arrangements for the programs and services of greatest significance to Aboriginal residents.
- Under the second approach, urban communities of interest would operate some government services (schools, daycare centres, housing services) for themselves. A community of interest is an Aboriginal collectivity that has emerged over time in an urban setting, through voluntary association of people from different Aboriginal backgrounds. Its members could design and control their own city-wide institutions, with an umbrella political structure to oversee and co-ordinate activities.
- The third approach is the nation-based approach. Many Aboriginal people have strong ties to their traditional lands and nations of origin and want a form of self-government with roots at home. For this approach to work, Aboriginal nations would have to take responsibility for their members who live in cities. Where Aboriginal nations accept this responsibility, they could establish urban branches of their home-based services and programs.
These and other approaches discussed in our report will take time to work out. The idea of urban self-government is only beginning to take shape, and most of the conceptual development should be done by Aboriginal people. We urge that governments, both non-Aboriginal and Aboriginal, co-operate to provide support in the planning stages and recognize viable urban governments as they emerge.
Our relationships need to evolve [back] into a partnership...people-to-people, culture-to- culture, nation-to-nation. That is the direction we need to take.
Al Ducharme
Métis history teacher
La Ronge, Saskatchewan
Because Aboriginal and non-Aboriginal people live as neighbours in urban areas, Canada's cities offer many chances for building bridges between cultures. We would like to see more Canadians initiate such activities.
Recognizing Diversity As we talked to Aboriginal people all over Canada, we recognized - in some cases, for the first time - the enormous diversity among them. They do not make up a single-minded, monolithic entity, speaking with one voice. Canadians do not expect non-Aboriginal leaders to agree among themselves. They should not expect Aboriginal leaders to do so either.
Aboriginal people spring from many nation traditions. Their languages, belief systems and outlooks differ from one another in important respects - although they share much as well. They differ also in their experience of life in Canada - by age, by region and by location.
The diversity of Aboriginal perspectives and outlooks is a reality that other Canadians must accept, for the sake of greater understanding across the cultural divide. Aboriginal people themselves are struggling to come to terms with it, as they strive to build bridges across their differences so that they can use their combined voices to their collective benefit.
The ability to construct an identity for the self, either as an individual or as a collective, lies at the heart of modernity. I now see group of [Aboriginal] people who are constructing a positive identity for themselves, who now see themselves as an integral part of, and contributors to, the society around them.
David Newhouse
Trent University
The importance of recognizing diversity for public policy is this: no one answer will do for all Aboriginal people. No one model - be it self-government, healing centre or housing design - will speak to all Aboriginal nations. Just as there are many voices, there must be many responses.
5) Renewal: A Twenty-Year Commitment Our report contains hundreds of recommendations. As our mandate directed, we looked at all the major problems facing Aboriginal people in their relationship with Canada. Each has proved difficult to resolve. Together they look even more unmanageable. Or so we thought when we began our work.
As we delved deeper, we came to appreciate the Commission's unique opportunity to approach the relationship between Canada and First Peoples in a new way - holistically. We realized that the usual strategy - tackling the problems one at a time, independently - is tantamount to putting a band-aid on a broken leg. Instead we propose a comprehensive agenda for change.
We talk at some length about new structures of governance, new strategies for economic development, new kinds of social programs. But at heart, what we want to do is something more radical. It is to bring about change in human lives. It is to ensure that Aboriginal children grow up knowing that they matter - that they are precious human beings deserving love and respect, and that they hold the keys to a future bright with possibilities in a society of equals.
This is the goal of the Commission's agenda for change. The challenge remains: how to begin?
Foundations of a New Relationship The starting point is recognition that Aboriginal people are not, as some Canadians seem to think, an inconsequential minority group with problems that need fixing and outmoded attitudes that need modernizing. They are unique political entities, whose place in Canada is unlike that of any other people.
Remaining passive and silent is not neutrality - it is support for the status quo.
Because of their original occupancy of the country, the treaties that recognized their rights, the constitution that affirms those rights, and their continued cohesion as peoples, they are nations within Canada - collectivities with their own character and traditions, a right to their own autonomous governments, and a special place in the flexible federalism that defines Canada.
Seeking a better balance of political and economic power between Aboriginal and other Canadian governments was the core and substance of our work. Progress on other fronts, unless accompanied by this transformation, will simply perpetuate a flawed status quo.
Throughout our report, we emphasize the importance of an understanding of history. We cannot expect to usher in a new beginning unless we reckon first with the past.
We have survived Canada's assault on our identity and our rights... Our survival is a testament to our determination and will to survive as a people. We are prepared to participate in Canada's future - but only on the terms that we believe to be our rightful heritage.
Wallace Labillois
Council of Elders
Kingsclear, New Brunswick
We do not propose dwelling on the past. Neither Aboriginal nor non-Aboriginal people want that. But there must be an acknowledgement that great wrongs have been done to Aboriginal people.
There is little evidence of such an acknowledgement today. Indeed, just as the restoration of Aboriginal nations and cultures appears to be offering real hope for renewed well-being, a backlash is developing - a reaction characterized by slogans like 'all Canadians are equal' and 'no special status' - but its premises are very wrong.
It is wrong to suggest that all people should be treated the same, regardless of inequalities in their situation.
It is wrong to turn a blind eye to the dispossession and racism that distort the circumstances of Aboriginal people and limit their life chances.
It is wrong to ignore the historical rights that Aboriginal people still enjoy as self-governing political entities - rights that Canada undertook to safeguard as we were struggling toward nationhood.
Proponents of the so-called 'equality' approach claim that renewal and restoration in the ways we propose will bring 'apartheid' to Canada. In the name of equality, they would deny Aboriginal people the chance to protect their distinctive cultures and fashion their societies in ways that reflect their values
Like our ancestors, we regard the right to be different not as an obstacle but as a foundation for our coexistence as distinct peoples.
Anthony Mercredi
Grand Chief, Treaty 8
This way of thinking is the modern equivalent of the mind-set that led to the Indian Act, the residential schools, the forced relocations - and the other nineteenth-century instruments of assimilation.
We ask those who think this way to reconsider their position. Its consequences are the very antithesis of equality, for it will freeze the existing imbalance of power and well-being between Aboriginal and non-Aboriginal people firmly in place.
How to Begin The first step is for the government of Canada to make a clear commitment to renewing the relationship between Aboriginal and non-Aboriginal people, guided by the principles of recognition, respect, sharing and responsibility.
Whatever the words of your final report and recommendations may be,
they will mean little if they are not met with the political will, the
knowledge and the ability to achieve their intent.
Chief Robert Pasco
Nlaka'pamux Tribal Council
Merritt, British Columbia
Change of this magnitude cannot be achieved by piecemeal reform of existing programs and services - however helpful any one of these reforms might be. It will take an act of national intention - a major, symbolic statement of intent, accompanied by the laws necessary to turn intentions into action.
This can best be done by a new Royal Proclamation, issued by the Queen as Canada's head of state and the historical guardian of the rights of Aboriginal peoples, and presented to the people of Canada in a special assembly called for the purpose.
The proclamation would set out the principles of the new relationship and outline the laws and institutions necessary to turn those principles into reality. It would not supplant but support and modernize the Royal Proclamation of 1763, which has been called Aboriginal peoples' Magna Carta.
The new proclamation would commit the government of Canada to making good on its proclaimed intentions by introducing new laws and institutions to implement them. The laws and institutions would come into being through companion legislation passed by Parliament:
- An Aboriginal Nations Recognition and Government Act, to permit the government of Canada, following processes and criteria set out in the act, to recognize Aboriginal nations and make interim arrangements to finance their activities.
- An Aboriginal Treaties Implementation Act, to establish processes and principles for recognized nations to renew their existing treaties or create new ones. This act would also establish several regional treaty commissions to facilitate and support treaty negotiations, which would be conducted by representatives of the governments concerned.
- An Aboriginal Lands and Treaties Tribunal Act, which would establish an independent body to decide on specific claims, ensure that treaty negotiations are conducted and financed fairly, and protect the interests of affected parties while treaties are being negotiated.
- An Aboriginal Parliament Act, to establish a body to represent Aboriginal peoples within federal governing institutions and advise Parliament on matters affecting Aboriginal people. (A constitutional amendment, to come later, would create a House of First Peoples, to become part of Parliament along with the House of Commons and the Senate.)
- An Aboriginal Relations Department Act and an Indian and Inuit Services Department Act, to set up two departments to replace the Department of Indian Affairs and Northern Development - one to implement the new relationship with Aboriginal nations, the second to administer continuing services for groups that have not yet opted for self-government.
We propose that close consultations with Aboriginal peoples and provincial governments on the content of the proclamation and companion legislation begin within six months of the publication of this report.
Provincial and territorial governments have benefited greatly from Aboriginal peoples' loss of lands and resources. They have a moral and a legal responsibility to participate fully in measures to restore self-reliance and autonomy, including land redistribution, the redesign of government responsibilities, and arrangements for co-management of shared resources.
If the wealth of our homelands is equitably shared with us, and if there is no forced interference in our way of life, we could fully regain and exercise our traditional capacity to govern...
Vice-Chief John McDonald
Prince Albert Tribal Council
La Ronge, Saskatchewan
To this end, we call for a meeting of first ministers and Aboriginal leaders to be convened as soon as possible, but no later than six months after publication of our report. Its purpose will be to review our central recommendations, consult on the proposed Royal Proclamation, and set up a forum of ministers and representatives of key Aboriginal organizations to work out a Canada-wide framework agreement for negotiating key elements of the agenda for change, especially
- principles to guide redistribution of land and resources
- the general scope of Aboriginal governments' core jurisdiction
- principles of intergovernmental fiscal arrangements
- principles of co-management on public lands
- the character of interim relief agreements
Gathering Strength and Building Capacity To this point we have discussed structural measures to rebalance power between Aboriginal peoples and Canadian governments. But structures don't make change; people do. Aboriginal people must regain hope that their rights will be recognized and their legacy of disadvantage overturned. When they do, their energies will be liberated to fashion the thousands of individual solutions that will make change a reality.
To equip Aboriginal people for the tasks of nation building that lie ahead, structural change - new laws, new bodies to implement them - must be accompanied by measures to give people hope, new capacities for self-management, and the confidence to take charge in their communities and nations.
We cannot become the independent people we want to be and that we have a right to be without access to the resources of this very affluent country.
Sophie Pierre
Ktunaxa/Kinbasket Tribal Council
Cranbrook, British Columbia
This requires early action in four areas: healing, economic development, human resources development, and Aboriginal institution building.
- Healing of individuals, families, communities and nations
Healing aims to restore physical, mental, emotional and spiritual health. It implies recovery for individuals and communities from the wounds of culture loss, paternalistic and sometimes racist treatment, and official policies of domination and assimilation.
Healing is already under way in many communities, but the momentum needs to grow. It needs to be supported by schools, hospitals, family services. It needs to reach the young, the old, and everyone in between.
Healing must build on Aboriginal traditions of mutual aid and community responsibility. It should include community and national leaders, whose approaches to decision making are sometimes distorted by their experiences of government under the Indian Act. Restoring communities and nations to unity and harmony is an extension of healing at the personal level. Such healing must accompany self-government. - Economic development
Aboriginal people must have the tools to escape from the poverty that cripples them as individuals and as nations. Redistributing lands and resources will greatly improve their chances for jobs and a reasonable income. After that, the tools most urgently needed are capital for investment in business and industry and enhanced technical, management and professional skills to realize new opportunities.
Hand in hand with improved economic conditions must come improved living conditions. We propose a major initiative to bring housing, water supplies and sanitation facilities up to standards that will reduce threats to health and help restore self-respect and initiative. - Accelerating development of human resources
Activities of self-government, healing, community infrastructure development, and commercial enterprise will need many more trained people than are now available. Changes in the education system can generate better high school completion rates among Aboriginal students.
We also propose a 10-year initiative to overcome education and training deficits by involving private companies, training institutions and governments in programs to encourage Aboriginal people to develop skills in a full range of technical, commercial and professional fields. - Institution building
Most of the institutions governing Aboriginal life today originate outside Aboriginal communities. For the most part, they operate according to rules that fail to reflect Aboriginal values and preferences. In every sector of public life, there is a need to make way for Aboriginal institutions. Development of many of these institutions should proceed before self-governing nations emerge, but they should be designed to complement, not compete with, nation structures.
Gerald Morin
President, Métis National Council
The High Cost of the Status Quo The case for a new deal for Aboriginal peoples rests on strong arguments for restorative justice and recognition of historical Aboriginal rights. It also rests on solid economic ground: Canada can no longer afford the status quo.
Eliminating the excess cost to Canadians of the policies of the past is a powerful argument for implementing the Commission's agenda for change.
- The cost of Aboriginal peoples' inability to obtain good jobs and earn reasonable incomes is very high. It takes the form of earnings Aboriginal people never receive, goods and services they do not add to the economy, and taxes they cannot pay.
- A smaller but still significant financial burden on taxpayers arises from the cost of remedial services to help Aboriginal people cope with the negative effects of their history of domination: higher than average use of welfare programs, housing subsidies, health and justice services.
As a group, Aboriginal people are on the margins of the Canadian economy. They produce less, and thus contribute less than the average Canadian, to the wealth of the nation. Because they earn less, they have a substantially lower standard of living than other Canadians.
- In 1990, only 43 per cent of Aboriginal people over age 15 had jobs, compared to 61 per cent of all Canadians.
- In 1991, Aboriginal people who were employed earned $21,270 on average, or 76 per cent of the Canadian average of $27,880.
Poverty, poor health, under-education and high mortality rates all indicate the long-term impacts of the colonization mind-set. It is the Aboriginal peoples' conception of their needs and interests which must be the starting point - the real [meaning] of the term 'self-determination'.
Marlene Buffalo
Hobbema, Alberta
The unemployment rate for Aboriginal people soared during that decade - far outpacing the increase for Canadians generally - and their average income declined. This happened despite a narrowing of the gap in educational attainment between Aboriginal and non-Aboriginal Canadians. This trend has likely continued through the '90s, as the influx of young people into the labour market and the lack of jobs have persisted.
This situation brings much suffering to Aboriginal people and communities and adds greatly to public indebtedness. More than 150,000 Aboriginal adults do not know the satisfaction of earning an adequate income and being economically independent.
Cost of Government Assistance In 1992-93, the latest year for which information on all governments is available, the federal government spent $6 billion dollars for Aboriginal people, mostly on programs for registered Indians and Inuit. Other governments (mainly the provinces) spent $5.6 billion - for a total of $11.6 billion.
One of the untapped human resources of Canada is the Aboriginal peoples, and once we are in a position to prove that we are and always were hard-working people, we will be an asset, and viewed as an asset.
Wilfred Collins
Chairman, Elizabeth Metis Settlement
Elizabeth, Alberta
Governments spend money on all citizens, mostly on programs to provide health care and education, stimulate the economy, facilitate transportation and so on. But the amount spent per person for Aboriginal people is 57 per cent higher than for Canadians generally.
Why? Some of the federal government's expenditures arise from special programs, such as non-insured health benefits and post-secondary education, that originate in treaty rights or Indian Act obligations. Geography and demography play a role as well:
- The cost of delivering services to remote regions, where many Aboriginal people live, is high. For instance, the cost of delivering services by the government of the Northwest Territories is twice the national level.
- Rapid growth in the Aboriginal population makes some higher spending inescapable. For example, the age structure of the Aboriginal population makes expenditures on education twice as high as for Canadians generally.
- Aboriginal people are over-represented among clients of remedial services such as health care, social services and the justice system (policing, courts and jails).
- High and rising rates of poverty and unemployment increase the need for welfare, housing subsidies and other payments to individuals.
The excess cost of assistance to Aboriginal people - that is, the amount over and above what is spent on an equivalent number of other Canadians - is estimated at $2.5 billion for 1996. (This figure consists of $0.8 billion for financial assistance and $1.7 billion for remedial programs.)
The tax dollars lost because of unemployment and low-wage employment is estimated at $2.1 billion for 1996. When this amount is added to the $2.5 billion, a figure of $4.6 billion emerges as the cost to Canadian governments of continuing policy failure with respect to Aboriginal people. This is about how much the government of New Brunswick spends to run the entire province for a year.
We can go further. Potential earnings lost to Aboriginal people because of their depressed employment status and wages are estimated at $2.9 billion for 1996. Adding this to the $4.6 billion already lost produces a figure of $7.5 billion - the total cost to Canada of leaving Aboriginal people's social and economic circumstances as they are.
Unless Canada makes fundamental changes, these figures will increase substantially. If current trends continue, the yearly economic loss to Canada will rise from $7.5 billion to $11 billion (in 1996 dollars) over the next 20 years, in response to population increase alone (see Table 1).
Table 1 Cost of the Status Quo - Today and Tomorrow
Notes:
1. The cost of the status quo is shown in italics. Other figures show how this cost is distributed.
2. Most of the cost of forgone earned income ($5.8 billion in 1996) is borne by Aboriginal people in the form of lost income. The rest is borne by governments in the form of taxes forgone and various forms of assistance paid out. These costs to governments are not included in the amount given for 'Cost to Aboriginal People'.
Renewal as a Good Investment The Commission's agenda for change can substantially reduce the costs of Aboriginal marginalization, ill health and social distress. But changes of such magnitude will not be easy. Profound problems require solutions that deal with the root causes. Solutions, once identified and implemented, take time to come to fruition.
By tackling the issue of dependency, by creating more independent people and communities, we will change the manner in which our communities function so that we will be contributing to the wealth not just of our communities, but of this country.
Francis Frank
Chief Councillor, Tla-O-Qui-Aht First Nation community
Port Alberni, British Columbia
Canada stands to gain by acting on our proposals. Aboriginal people will gain by achieving greater productivity and higher incomes. Other Canadians will gain through reduced government spending and increased government revenues. Political, economic and social renewal can help Canada balance its books.
Our proposals will cost money, but they will also save money. Eventually, savings and new tax revenues will equal and then exceed the cost of the strategy. We estimate that it will take between 15 and 20 years of investment to reach that point.
Accordingly, we recommend strongly that governments increase their annual spending, so that five years after the start of the strategy, spending is between $1.5 and $2 billion higher than it is today, and that this level be sustained for some 15 years.
In considering the increased outlay we recommend, Canadians should keep four things in mind:
- The agenda for change will cost Canada significantly less than a continuation of the status quo, amended piecemeal here and there. The price tag on lost productivity and remedial measures to make up for poverty and other forms of disadvantage is four to five times higher than the cost of the measures we propose.
- Our recommendations constitute an interactive strategy. To work, they must reinforce each other. Implementing self-government and acquiring an increased land base will generate a powerful momentum for economic self-reliance. Economic well-being tends to improve health status. At the same time, progress in healing and education will produce stronger, more confident individuals with the skills and abilities to manage businesses and run governments.
- Changes will have to be negotiated with and implemented by Aboriginal people - in the way they choose. This means that the pace of change will be determined by the capacity of Aboriginal nations and communities to implement their chosen priorities - a capacity that is still developing.
- Governments are reassessing their role in society and cutting back public spending. It would be a travesty of justice, however, if concerted and effective action to rectify the results of a history of dispossession were abandoned on grounds of fiscal restraint. A great debt is owing, and Canadians cannot, in good conscience, default on it.
resources.
Chief Nathan Matthew
Secwepemc Nation
Kamloops, British Columbia
We estimate that half the potential gain from better social and economic conditions could be realized within the 20-year investment period. Beyond that point, social and economic recovery will continue under their own momentum. Over the 20-year period, the flow of financing should evolve in three stages:
- In the first five years, an immediate and major infusion of resources will be needed for all aspects of healing, economic stimulation, upgrading community infrastructure, and developing new institutions and human resources. By contrast, although structural reform will begin in these early years - nation building, recognition of self-government, and land and treaty processes - these activities will need only limited funding.
- At the end of the first five years, as more Aboriginal nations complete land and self-government negotiations, large outlays will be needed to settle land claims and implement self-government. Although we expect to see most claims settled within the next 20 years, the cost of land settlements will be spread out over a longer period.
- After about 10 years, Aboriginal people and nations will begin to close the gap in economic self-reliance and contribute more to the financing of governments. The need for remedial programs will fall. The point where fiscal gains from our strategy begin to outstrip its costs will be reached within 20 years of the start of the strategy.
Federal, provincial, territorial and Aboriginal governments will need to assume a share of the additional cost of the agenda for change. But the costs we describe will be borne in part by Aboriginal governments and financed through their own taxation efforts.
Federal, provincial and territorial governments will benefit greatly in the long term from
- reduced expenditures once the agenda for change begins to alleviate debilitating and costly conditions of Aboriginal life
- increased tax revenues as more Aboriginal people living off Aboriginal nation territories have jobs and decent incomes and pay taxes
Perhaps it will take longer. But within the 20-year timeframe, enormous momentum for change can be generated. By 2016, Aboriginal people can be very much better off than they are today and moving steadily forward.
The result will be a large gain in human and financial terms for Aboriginal people - and, in the long term, much greater savings for all Canadians.
Table 2: Changes in Government Finances as a Result of the Strategy Notes:
1. Positive entries (figures without parentheses) show the increase in spending by all governments needed to implement the strategy.
2. Reductions are shown by numbers in parentheses in the second column. These relate to amounts saved as a result of the strategy (that is, amounts that would be spent if the status quo continues) and to additional revenues collected by governments. See Volume 5, Chapter 3, of the Commission's report for a complete explanation of these figures.
3. Figures are rounded to the nearest $25 million.
Awareness and Understanding The tasks we have laid out for renewing the relationship between Aboriginal and non-Aboriginal people are huge - but they pale in comparison to the task of changing Canadian hearts and minds so that the majority understand the aspirations of Aboriginal people and accept their historical rights.
Social and structural change will not take place unless Canadians want it to. Leadership from governments is necessary but not enough. People need to see the reasons for - and the justice in - the Commission's agenda for change. They must urge governments forward when they waver, and they must be ready to accommodate the set-backs and surprises that inevitably come with major change.
If...awareness is not increased dramatically, then the probability of [Métis] people assuming their rightful place in society in the future is very low.
Gerald Thom
Metis Nation of Alberta
We were told many times during our mandate that most Canadians know little of Aboriginal life and less of Aboriginal history. Information in school curriculums is limited. Media coverage is often unsatisfactory. Few governments, agencies and organizations promote awareness of Aboriginal issues among members, employees and colleagues.
Yet without mutual understanding, a renewed relationship is impossible.
Part of the answer is information. We recommend a number of steps to increase and improve the quality of information about Aboriginal people and their concerns. But information alone will not break down walls of indifference and occasional hostility. Aboriginal and non-Aboriginal people need many more chances to meet each other face to face and learn about one another.
We urge Canadians to become involved in a broad and creative campaign of public education. Our report can be a starting point - a basis for study groups, lectures, meetings and exchanges, organized by churches and unions, schools and hospitals, local businesses and national corporations, about what they can do to understand and accommodate Aboriginal people and their concerns.
Remaining passive and silent is not neutrality - it is support for the status quo.
Charting Progress Aboriginal people came before the Commission with a question: Can you promise us that your recommendations won't just gather dust on a shelf? Fine words are all too familiar to Aboriginal people. This time, they want them to be made real.
The Commission's agenda for change is, clearly, a long-term undertaking. It makes sense to monitor progress until those changes are accomplished.
We propose that the federal government set up an Aboriginal Peoples Review Commission to assess the actions of governments in accomplishing the tasks on the agenda for change.
The importance of an Aboriginal Peoples Review Commission will lie in its independence and its ability to focus the attention of legislators and governments on the continuing process of renewal. It should be independent of governments and report direct to Parliament.
Last Words The relationship between Aboriginal and non-Aboriginal people in Canada has long been troubled and recently has shown signs of slipping into more serious trouble. The relationship can most certainly be mended - indeed, turned from a problem into an asset and one of the country's greatest strengths.
The direction change must take is toward freeing Aboriginal people from domination by and dependence on the institutions and resources of governments. The end of dependence is something Aboriginal and non-Aboriginal people alike profoundly desire. It would be quite unacceptable for First Nations, Inuit and Métis peoples to continue to find their autonomy restricted and constrained in the twenty-first century.
Yet renewal of the relationship must be done with justice and generosity. History and human decency demand restoration of fair measures of land, resources and power to Aboriginal peoples. On those foundations, self-respect and self-reliance will grow steadily firmer in Aboriginal communities. In their absence, anger and despair will grow steadily deeper - with conflict the likely result.
What we propose is fundamental, sweeping and perhaps disturbing - but also exciting, liberating, ripe with possibilities.
Aboriginal people must be enabled to function once again as nations. This is a new way of thinking about old and persistent problems. For many years, the watch-word for the progress of Aboriginal people was 'self-government'. But this is only one piece of a larger undertaking - the restoration of nations, not as they were, but as they can be today. Land and economic vitality are essential for successful, hard-working governments. Whole, healthy, hopeful people are more vital still.
The Commission proposes a 20-year agenda for change, encompassing these things and more. In just 20 years, the revitalization of many self-reliant Aboriginal nations can be accomplished, and the staggering human and financial cost of supporting communities unable to manage for themselves will end. From that time forward, the return to the country will continue to grow.
That so much is possible in so short a time is good news for Canadians.
The changes we propose are not modest. We do not suggest tinkering with the Indian Act or launching shiny new programs. What we propose is fundamental, sweeping and perhaps disturbing - but also exciting, liberating, ripe with possibilities.
Nor do we propose a set of lock-step directives. We offer a vision of what is possible and lots of ideas about how to get started. The agenda for change can begin today, and there are many starting places for it. Indeed, it is already getting started, as good ideas take shape and gather momentum in Aboriginal communities from coast to coast to coast.
Yet change must take place at a pace that allows Aboriginal people and nations to work through the pains of rebirth and in a way that encourages non-Aboriginal people to participate in it. Transition is something we must do together.
All of us have a part in securing the new relationship - people and governments, Aboriginal and non-Aboriginal, organizations big and small. We have 20 years of building and experimentation to look forward to - using, for the first time in many decades, all the energies of Aboriginal people as they create and live the dream of a Canada that they can share with others and yet be fully at home.
During that time - and beyond it - we can look forward to a Canada that celebrates Aboriginal heritage and draws strength from Aboriginal peoples as full partners in a renewed federation.
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Why Treaties? BC Treaty Commission
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