CHAPTER THREE

Aboriginal Rights and Self-Government

c
c
c
AS YOU READ
c Principles of Land Use
c
c Excerpt from a statement by
In the last chapter, you learned how Aboriginal peoples c James Carpenter from In the
began to regain control over their lives after World War II. c
These changes accelerated in the 1970s until a signi- c Words of Elders: Aboriginal
c C u l t u r e s i n Tr a n s i t i o n
ficant step forward was made in 1982. That year, all c
Aboriginal peoples — First Nations, Métis, and Inuit — c

I
c have never heard Native people
and their rights were recognized in Canada’s constitution.
c
Since that time, Aboriginal peoples and their political c say they own the land. The land
organizations have become adept at working within c
c is for us to use and to live, this is
Canadian institutions to further their people’s rights to c
the land and its resources, as well as their inherent right c where the food is, fish, rabbits,
to self-determination. c
c otter or any other animals for food.
Canadian institutions are slowly adapting to make c
c We know when freeze-up will
Aboriginal goals more possible. For example, the c happen. The Native person will know
Supreme Court has ruled that oral history regarding c
land use and governance should be given as much c what he will need in order to hunt and
consideration as written evidence when making
c fish. Wherever he meets another
c
decisions about Aboriginal rights. Testimony such as c Native person on the land and if he
that on pages 76–77, by Mushkegowuk Cree Elder c has an abundance of fish, he will invite
c the person to fish there with him or he
James Carpenter, is now of much value in pursuing c
Aboriginal political and economic goals. c will tell another person you can trap
c with me where there are weasel,
Carpenter was born in 1924 in northern Ontario. In this c
statement, he describes his people’s traditional relation- c muskrat, and otter. That’s what the
ship to the land and to other people on the land. In your c Native person says to his fellow
c
own words, write a set of principles governing land use c Natives. The Native person treats
as described by Carpenter. How are these principles a c others with love. The Native person
form of governance? How might this system of gover- c
c will not say to another Native person,
nance contrast with non-Aboriginal ideas about land use c “Don’t trap there.” He will never say
and government? Discuss your ideas with a partner. c to another person, “That is my land.”
c
c Before the mapping of this area
c and the boundaries were set, the
FOCUS QUESTIONS c
c Native people respected one another
As you read this chapter, consider these questions: c and their hunting grounds. It still
n What Aboriginal rights does the Canadian constitution c
c goes on despite these limitations and
recognize? c boundaries. People took care of each
n What have First Nations, Métis, and Inuit peoples done c
c other. If I see your trap with a fox, I
to assert their Aboriginal rights since 1982?
c would hang it on the tree for you so
n What role does the Supreme Court play in Aboriginal rights? c
c
animals won’t get at it. Before the
n How do First Nations, Métis, and Inuit perspectives on
self-government compare to one another? c metal traps were used, Native people
c used deadfall traps made of wood.
n What are federal and provincial governments’ perspectives c
on Aboriginal self-government? c The Native person had intelligence as
n How are Aboriginal leaders establishing self-government c he has survived for a long time. The
c
in their communities today? c Elders have taught how to make these
c
76
c
c
c
A mace is a symbol of the power of the Speaker in a legislative or parliamentary assembly. Nunavut’s mace
is made of polished narwhal tusk and is embedded with northern jewels and tiny figurines of three types of
seal — harp, bearded, and ringed. The crown consists of four interconnecting silver loons. The mace rests
on four carved stone figures. The first represents an Elder, the second a woman carrying a baby, the third a
child, and the last a man. Based on the symbolism of its mace, what principles would you expect Nunavut’s
government to uphold? How would a mace look that is based on principles described by James Carpenter?

deadfall traps, as I have seen. People does not flow swiftly. The informa-
would tell each other about where tion you tell is that you expect me to
there were rabbits, too, and they live too. I will live from the food you
would go there to hunt. Native told me about.…
people used to gather and sit and tell Native people did not use com-
each other where there is food and passes. They used their hands. They
where they were going to hunt. used the wind, [observing] which
The lifestyle that the Native direction it would blow in the morn-
people had is gone. The lifestyle of ing. You walked along the bay and
the bush is gone. If a person happens when [it was] a blizzard, you [were]
to find moose tracks and night is able to go anyway. First you look at
falling, he will wait until the next the way the snow lays, blown by the
morning. He will then ask someone wind…. For example, if I want to go
to help him track the moose and to Attawapiskat, I’ll go towards the
they will wait for the wind. The wind bay, the bush is too thick to walk in
blows the trees and makes noise so and the snow is too deep. If you walk
the moose will not hear them. That along the bay, you also look at the
is how it is done. If you wanted to creeks and how they lay from the
make a map, you would draw on the west. The blown snow also shows
snow or on the ashes of the fire. which way the wind blows, usually
Why do I ask you to join me in this from the north. The sun also gives
hunt? The reason is that I want you direction when you look to where it
to live too. The earth is not here just rises. If it is a grey day, you use the
for me. Just like the river that you snow to give the direction. If you use
see, it is not there for only me to all these things to help you find your
drink from, it is for all the Native destination, you will not be lost.
Nations. I won’t tell another Native
person, “Don’t get water from there.”
p REFLECTION
That is not the Native law.
If I were to come to Moosonee 1. Reflecting on James Carpenter’s statement, describe
Ministik from Attawapiskat and I his relationship to the land in your own words.
Describe his relationship with other people on the land.
didn’t know where they get nets
2. If possible, talk to an Elder about how they view the
around here, I would ask you where land and people’s relationships with one another on
I [could] get them. You would tell the land. Compare the Elder’s ideas with James
me where the nets are set and you Carpenter’s views to find similarities and differences.
would also tell me where the water
77
 c
c
c
c
The Era of Rights and Freedoms
c
c
created the Dominion of Canada in
AS YOU READ 1867, did not refer to the prime min-
Pages 78–85 describe Aboriginal people’s involvement in ister, even though it was understood
the process leading to the signing of the Constitution Act through common law that there
of 1982. As you read this section, make notes about why was one.
this event could be considered a turning point in Aboriginal When the federal government,
peoples’ history in Canada. under Pierre Trudeau, announced in
the late 1970s that it intended to

I
n 1982, the landscape of rights for Aboriginal patriate the constitution from
peoples in Canada changed significantly. This was Britain, Aboriginal peoples across the
country took notice. Many leaders
the year that Canada’s constitution was patriated. were concerned about how the
patriation would affect their rights.
This meant Canada gained complete independence from
Other leaders saw the patriation
c Britain, including the right to revise as an opportunity to push forward
c or amend its constitution without their goal of self-government. If
c
c Britain’s approval. the new constitution recognized
c The Canadian constitution is Aboriginal people’s inherent right to
c
c the ultimate legal authority in the self-government, the federal govern-
c country. It describes Canada’s most ment would have to move forward
c important laws and principles, as well
Prime Minister Trudeau c with self-government negotiations
and Queen Elizabeth II c as the responsibilities the government more quickly.
signed the Constitution c has to its people. This document has However, when Aboriginal
Act in 1982. Trudeau c
c evolved since before Confederation leaders tried to secure an active part
was known for his
highly individualistic
c in 1867 and will continue to evolve in discussions about the new consti-
c
view of human rights. c as the needs of citizens change. tution, they were denied an official
He rejected the idea of c The constitution is a written place alongside the federal and
collective rights and c
c document, but it recognizes many provincial governments. Aboriginal
any expression of unwritten traditions of the Canadian
c peoples’ efforts to protect their rights
nationalism, including c
Quebec nationalism. c
government that were inherited had to take place from the sidelines.
How might his views c from Britain, which has no written This situation only added to the
on Quebec nationalism c constitution at all. For example, the mistrust surrounding the patria-
c
affect Aboriginal rights? c British North America Act, which tion process.
In general, the federal govern-
ment supported giving Aboriginal
peoples some rights protection in
the constitution, but hesitated to
recognize an inherent right to self-
government. They were concerned
about the practical issues involved in
providing self-government to all
Aboriginal peoples, no matter where
they lived in the country. Provincial
governments, fearing a loss of their
own powers, were generally opposed
to guarantees of self-government.

78 CONTEMPORARY ISSUES
 owledge
ABORIGINAL Kn
CONCERNS GROW

enous
In 1981, a compromise was reached Traditional First Nations constitutions were based
between the federal and provincial on natural law, which was given by the Creator and

di g
governments to complete the patria- In preserved for generations through social custom
tion process. When the agreement and the oral tradition. Read the statement by the
was announced, neither women nor Wet’suwet’en chief below and discuss with a partner
how Aboriginal law and European law compare.
Aboriginal peoples were specifically
Consider the source of the laws, the ways the laws
mentioned in the constitution.
are taught, and the position of law in each society.
Women’s groups and Aboriginal
groups mobilized such convincing
Now this Court knows I am Gisdaywa, a
protests that their rights were added Wet’suwet’en Chief who has responsibility
to the document before patriation. for the House of Kaiyexwaniits of the
However, the Aboriginal rights Gitdumden. I have explained how my House
included in the constitution were a holds the Biiwenii Ben territory and had the
compromise between the federal privilege of showing it to you. Long ago my
and provincial levels of government. ancestors encountered the spirit of that
They did not fully address the land and accepted the responsibility to care
concerns of Aboriginal leaders and for it. In return, the land has fed the House
did not recognize their people’s members and those whom the Chiefs
inherent right to self-government. permitted to harvest its resources. Those
who have obeyed the laws of respect and
Aboriginal leaders also had
balance have prospered there.
concerns about the Charter of Rights
and Freedoms. The Charter protects The means by which instructions were
the individual rights of all Can- conveyed are described consistently as
“sacred gifts” received through dreams
adians, including Aboriginal people.
and visions, in fasting huts and sweat
Sections 2 and 7–15 include rights
lodges, as well as from human teachers.
such as freedom of expression,
conscience, and religion; the right In times of great difficulty, the Creator sent
sacred gifts to the people from the spirit
to vote or run for elected office; the
world to help them survive. This is how we
right to enter, leave, and move within
got our sacred pipe, songs, ceremonies,
Canada; and a number of protections and different forms of government …
from unjust actions by courts or law
Included in the spiritual laws were the
enforcement agencies.
laws of the land. These were developed
Aboriginal organizations sup-
through the sacred traditions of each tribe
ported protections for individual of red nations by the guidance of the spirit
rights, but with a significant differ- world. We each had our sacred traditions
ence. A focus on the individual is of how to look after and use the medicines
not part of the cultural heritage of from the plant, winged, and animal kingdoms.
Aboriginal peoples, where the com- The law of use is sacred to traditional
munity is viewed as most important. people today.
Aboriginal leaders were concerned — Gisdaywa, Wet’suwet’en chief, Report of the
that an individual whose interests Royal Commission on Aboriginal Peoples
came into conflict with an Aboriginal
group’s rights might use the Charter
to override Aboriginal rights.

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 79

 c
c
c
c
c
c
c
These excerpts from the c THE CONSTITUTION ACT The constitution advanced
Constitution Act of 1982 c In the end, some of Aboriginal Aboriginal rights in several other
include the clauses c
c leaders’ concerns were addressed by important ways:
that refer specifically
to Aboriginal peoples. c the constitution.
c • For the first time, Aboriginal
Clauses followed by a Section 25 declared clearly that
c and treaty rights were
number in parenthesis c Charter rights could not override
indicate the year a c protected from arbitrary
Aboriginal, treaty, or other rights
change was made to c removal by the government.
c held by Aboriginal peoples.
that clause. c

E X C E R P T S F R O M T H E C O N S T I T U T I O N A C T, 1 9 8 2

Aboriginal rights and 25. The guarantee in this Charter of certain rights and freedoms
freedoms not affected shall not be construed so as to abrogate or derogate from
by Charter any aboriginal, treaty or other rights or freedoms that pertain
to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the
Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims
agreements or may be so acquired. (92)
Recognition of existing 35. (1) The existing aboriginal and treaty rights of the aboriginal
aboriginal and treaty rights peoples of Canada are hereby recognized and affirmed.

Definition of “aboriginal (2) In this Act, “aboriginal peoples of Canada” includes the Indian,
peoples of Canada” Inuit and Métis peoples of Canada.

Land claims agreements (3) For greater certainty, in subsection (1) “treaty rights” includes
rights that now exist by way of land claims agreements or may
be so acquired.
Aboriginal and treaty rights (4) Notwithstanding any other provision of this Act, the aboriginal
are guaranteed equally to and treaty rights referred to in subsection (1) are guaranteed
both sexes equally to male and female persons. (94)

Commitment to 35.1 The government of Canada and the provincial governments are
participation in committed to the principle that, before any amendment is made
constitutional conference to Class 24 of section 91 of the “Constitution Act, 1867,” to
section 25 of this Act or to this Part,
(a) a constitutional conference that includes in its agenda an item
relating to the proposed amendment, composed of the Prime
Minister of Canada and the first ministers of the provinces, will
be convened by the Prime Minister of Canada; and
(b) the Prime Minister of Canada will invite representatives of the
aboriginal peoples of Canada to participate in the discussions
on that item. (95)

80 CONTEMPORARY ISSUES
 • Aboriginal peoples were Canada had a new prime minister,
given a constitutional Brian Mulroney. On April 30,
opening to play a more during a conference at Meech Lake,
active role in defending Quebec, Mulroney, and the ten
their rights. premiers unanimously approved a
package of constitutional amend-
• For the first time, Métis and
ments. These amendments became
Inuit peoples were specific-
known as the Meech Lake Accord.
ally recognized as Aboriginal
The accord recognized Quebec
peoples, giving them a legal
as a “distinct society,” different from
foothold to protect their
all other provinces. It also stated
Aboriginal rights.
that Canada was the product of “two
• Section 35 gave Aboriginal founding nations” and increased
peoples a place to begin provincial powers over a range of John Amagoalik played
negotiations for land claims previously federal responsibilities. a critical role in the
creation of Nunavut.
and self-determination. Before the accord could come
His quest for Inuit rights
into effect, however, each provincial was shaped by the
MEECH LAKE ACCORD legislature had to approve the injustice his family
Although the Constitution Act fell agreement. If any province failed to experienced when he
short of Aboriginal leaders’ hopes, it pass the accord before the end of was a child. In August
did include a mandate for further June 1990, the whole deal would die. 1953, his family and
seventeen others were
discussion of Aboriginal issues. By 1990, the accord had gathered relocated from their
Section 35 promised a constitutional considerable opposition. Critics home in northern Quebec
conference involving the prime min- claimed that it gave Quebec too to the High Arctic as
ister, the premiers, and Aboriginal much power and that the agreement part of the Canadian
representatives. Over the next five had not included enough consulta- government’s assertion
of sovereignty in the
years, three conferences on Abor- tion. In particular, Aboriginal leaders
region. Amagoalik is
iginal affairs were held. None of said that the accord addressed none shown here with the
them resulted in significant progress. of the important concerns of National Aboriginal
Quebec, however, made some Aboriginal peoples as partners in Achievement Award he
progress in its demands. The shaping the future of Canada. They received in 1998.
province had refused to sign the were concerned that increased
Constitution Act in 1982 because it provincial powers might lead to an
did not contain an acknowledgement erosion of Aboriginal rights.
of its “distinct status” in Confeder- Some Aboriginal leaders were
ation. Despite its refusal, Quebec particularly offended by the accord’s
was legally bound by the constitution, reference to “two founding nations.”
a situation that rankled with many John Amagoalik of the Inuit Com-
Quebec residents. The province’s mittee on National Issues declared
leaders maintained pressure on “It hurts us very much when political
Ottawa to make changes that would leaders like the prime minister
“bring Quebec into the constitution.” continue to say that the two found-
In 1987, after several rounds of ing nations of this country are
discussions, a new Quebec proposal French and English. We have been
had taken shape. By that time, saying for years now that we are of

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 81

 c
c
c
c
c
c
c
c this country. We are of the soil. We CHARLOTTETOWN
c did not come on a ship or immigrate ACCORD
c
c to this country. We are of it. We are The Meech Lake Accord was dead,
c getting tired of being ignored in but the quest for constitutional
c this respect.” change continued. In 1991, the
c
c In Manitoba, the government federal government released its
c left its passing of the Meech Lake report. Called Shaping Canada’s
c
c Accord to the last minute. On Future Together, the document put
c June 30, the legislature found itself forward proposals to address the
c
c rapidly approaching the midnight concerns of both Aboriginal peoples
c deadline. In Winnipeg, as the clock and Quebec residents. This led to
c
c ticked closer to midnight, the more talks, more reports, and
c premier attempted a legal strategy negotiations involving the federal,
c to gain more time. A unanimous provincial, and territorial govern-
c
c vote in the legislature could extend ments. This time, however, the
c the debate period and allow a vote Assembly of First Nations, the Inuit
c
c to take place after midnight. Tapirisat of Canada, and the Métis
c It was then that a lone voice said National Council were invited to
c
c “No.” Elijah Harper, an Ojibwa- the negotiating table.
c Cree member of the legislative From these discussions emerged
c
c assembly, declared that he could not a new constitutional package: the
c support an accord that ignored Charlottetown Accord. The Char-
c Aboriginal people’s concerns and lottetown Accord proposed a number
c
c that he would not vote to extend the of constitutional changes that would
c debate. With the support of the have the overall effect of reducing
c
c Assembly of First Nations, he the powers of the federal govern-
c decided it was better to kill the accord ment and increasing the powers of
c
c than to betray his principles by the provinces. It also repeated
c ignoring the concerns of Aboriginal Meech Lake’s recognition of Quebec
c
c peoples across the country. The as a distinct society.
ow ledge c Meech Lake Accord expired.
Kn c
enous

Research more about Elijah Harper’s actions during

the Meech Lake Accord and the role the Assembly of
di g

In First Nations played in supporting him. Write a short

monologue that portrays some of the issues Harper
may have wrestled with in making his decision.

c
c Holding an eagle feather, Manitoba MLA Elijah
c Harper halted passage of the Meech Lake
c Accord. This famous photograph of Harper in
c
c the legislative assembly ranks alongside the
c photograph on page 78, showing the prime
c minister and queen signing the Constitutional
c Accord. Both images symbolize this significant
c
c period of political history in the minds of many
c Canadians across the country.

82 CONTEMPORARY ISSUES
 For Aboriginal peoples, the Nationally, 54 per cent of voters
accord included several key features. rejected the accord. Only in New
It recognized Aboriginal peoples’ Brunswick, Newfoundland, Prince
inherent right to self-government Edward Island, the Northwest
and defined how self-government Territories, and Ontario did a
related to land, environment, lan- majority approve it. In the end, large
guage, and culture. It also recognized numbers of Aboriginal peoples also
Aboriginal governments as a third voted against the accord. Aboriginal
order of government alongside the women’s groups, in particular,
federal and provincial governments worried that women’s rights would
and guaranteed Aboriginal peoples’ not be sufficiently protected in the
representation in the Senate. vision of Aboriginal self-government
Instead of ratification by the described in the agreement.
individual provinces, the Charlotte-
town Accord was to be approved ow ledge
Kn
in a national referendum. On
enous

October 26, 1992, Canadians were What point are the Treaty Six and Seven First Nations
given the opportunity to vote on the making in the message that follows? Why do you
di g

so-called Unity Package. The yes In suppose they took a stand apart from that of the
side would have to win a majority Assembly of First Nations, which participated in
both nationally and in each province the negotiations on their behalf? If possible, invite
to make the accord law. a community member to your classroom who can
The referendum campaign discuss this message and why Treaty Six and Seven
did not support the Charlottetown Accord.
began on an optimistic note. All ten
premiers backed the accord, along
The First Nations of Treaty 6 and 7 have
with many Aboriginal leaders,
reviewed the proposed “Unity Package.” It is
women’s groups, and the media. our opinion that the proposed constitutional
However, the momentum soon amendments do not honour the binding sacred
began to slip. Many Canadians felt trust obligations set out in our sacred treaties.
uneasy about the accord, finding it
The primary and fundamental concern of our
too complex, vague, and wide- First Nations is that any discussions respecting
ranging to absorb and understand. our treaties must occur in a bilateral, nation-to-
Others, particularly in the western nation process between our respective First
provinces, objected to Quebec’s Nations and the Crown. These discussions have
recognition as a distinct society. yet to occur, and yet our sacred treaties have
Former prime minister Pierre been discussed in the multilateral constitutional
Trudeau published a scathing con- process, and amendments to the constitution
demnation of the accord in Maclean’s have been agreed to by the parties to that
magazine, arguing that it would process. This is a flagrant violation of our agree-
cripple the federal government. ments with the Crown under Treaties 6 and 7.
By the time referendum day — Treaty Six and Seven First Nations,
A Message to all Canadians
arrived, the accord was in serious
trouble.

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 83

 c
c
c
c
c
c
c
c Since 1992, there have been no community. Today, these different
c further attempts to amend Canada’s perspectives are represented by five
c
c constitution. Aboriginal leaders main national Aboriginal political
c have instead focused their energies organizations. These are the
c on building on the foundation of the Assembly of First Nations, the
c
c rights enshrined under Section 35 Congress of Aboriginal Peoples, the
c of the constitution. Much of this Inuit Tapiriit Kanatami (formerly the
c
c work centres on legal action and Inuit Tapirisat of Canada), the Métis
c court decisions, as discussed on National Council, and the Native
c
c pages 86–87. Women’s Association of Canada.
c National political organizations
c
c N AT I O N A L are influential because they each
c O R G A N I Z AT I O N S represent the views of many indi-
c After the success of the campaign to viduals with common goals. Most
c
c force the federal government to national organizations have com-
c withdraw its 1969 White Paper, munity branches or affiliates to
c
c Aboriginal peoples became con- ensure their policies and actions are
c vinced of the effectiveness of informed by grassroots needs. For
c
c speaking to the federal government example, the Métis National
c with a united voice. However, Council has five provincial affiliates,
c
c Aboriginal peoples in Canada today including the Métis Nation of
c are no more uniform than they were Alberta (MNA). The Assembly of
c when Europeans first arrived on First Nations also has grassroots
c
c North American shores. If anything, organizations at the community level.
c Aboriginal peoples have become Aboriginal political organizations
c
c even more diverse. must use lobbying and influence to
c Participation in the constitutional achieve their goals — they do not
c
c conferences led to an identification of have the kind of formal political
owledge c diverse perspectives in the Aboriginal power that provincial and territorial
Kn c
governments have. Federal and
enous

provincial government powers are

Using the Internet, prepare a summary of the five
guaranteed by the constitution.
main national Aboriginal organizations:
di g

In National organizations influence

• Assembly of First Nations the attitudes, values, and behaviours
• Congress of Aboriginal Peoples
of Aboriginal peoples as well as Can-
• Inuit Tapiriit Kanatami
adians’ views of Aboriginal peoples.
• Métis National Council
• Native Women’s Association of Canada Media outlets often interview
organization leadership to present
You can link to the organization Web sites at
Aboriginal people’s views on the
[Link]. Research who the
issues that affect them. Representa-
organization represents, its history, and its basic
organizational structure. How does it keep in touch tives are usually included in govern-
with Aboriginal people’s views at the local level? ment discussions about policies that
affect Aboriginal peoples.

84 CONTEMPORARY ISSUES
 ues for I
Iss

nv
estigatio
PROMOTING ABORIGINAL RIGHTS

How are Aboriginal leaders n

“The Constitution Act of 1982 was meant
working today to affirm
to be a landmark in Canada’s dealings
Aboriginal rights and
with the original peoples of this land,
freedoms? both in content and process,” said
[Matthew Coon Come, National Chief of
W H AT T O D O the Assembly of First Nations in 2002].
1. Choose a national Aboriginal political
“Section 35 of the Constitution
organization. Imagine that you are a
recognizes three groups of Aboriginal
public relations expert working for this
organization. Your job is to get your peoples in Canada: First Nations
organization in the national news (or “Indians”), the Métis, and the Inuit.
tomorrow night with an attention-getting Equally important, section 35 recognizes
press release. A press release is a short and affirms ‘existing aboriginal and
document that tries to intrigue the media treaty rights.’
with a story idea in the hope of getting
“This is an important distinction because
publicity for an organization or cause.
it affirms that our rights as Aboriginal
2. Research the organization’s position
peoples are inherent rights. They are rights
on Aboriginal rights. What work is it
that have always been within us and that
doing in this area? Start by visiting
the group’s Web site and searching stay with us regardless of where we live
periodical indexes online or at the in this land. Section 35 does not give
library for recent activities in the news. us any rights. It recognizes and affirms
3. If possible, interview a member of the rights we have always held as self-
your local community who is involved determining nations. Those rights existed
in the organization. Be prepared with before any settlers arrived on our shores.
knowledgeable questions. With your We had those rights at contact and they
interviewee’s permission, record the exist today,” said the National Chief.
interview or write their answers down — Excerpt from an April 17, 2002 press release
exactly as they are said. Your press issued by the Assembly of First Nations
release will be more interesting with
quotations from the person you
interview, but you must be accurate
in your record. LOOKING BACK
4. Write the press release. It should not be What Aboriginal rights were and were not
any longer than one page and should
recognized in the Constitution Act of 1982?
use precisely chosen language and
How is the constitution particularly
information. Assume your audience
knows nothing about Aboriginal rights. important for Métis and Inuit peoples?
Check that your release has a date and Imagine that you have the power to insert a
headline before you hand it in. Include clause into the Canadian constitution that
your name on the bottom as the person will recognize a traditional Aboriginal law.
to contact for more information. Decide where this addition should go and
write it exactly as it should be. If you can,
use an Aboriginal language in the wording.

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 85

 c
c
c
c
Aboriginal Rights and Canadian Law
c
c
The process is costly and slow, but
AS YOU READ has resulted in significant gains for
Although it did not expressly recognize the inherent right Aboriginal rights since 1982.
to self-government, the Constitution Act of 1982 did much
to further Aboriginal rights in Canada. ABORIGINAL TITLE
This section examines developments in Aboriginal rights As you learned in Chapter Two, all
since 1982. In particular, it deals with how Aboriginal people’s aspects of traditional First Nations,
rights have been recognized through court interpretations Métis, and Inuit cultures were inti-
of the numbered treaties, Indian Act, Manitoba Act, Natural mately connected to the land. Many
Resources Conservation Agreements, and Section 35 of Aboriginal rights claims therefore
the Constitution Act. As you read, make a concept map to involve the land and its resources.
organize your notes and indicate relationships between Aboriginal title is a legal term
decisions, laws, and their implications for Aboriginal rights. that refers to an Aboriginal group’s
right to a specific territory. An

C
anada’s constitution recognizes “existing Aboriginal group with title to a piece
aboriginal and treaty rights,” but does not of land has the right to exclusive
occupation of the land and the right
precisely define what those rights include. This has to economic benefits from the land’s
resources. These land rights are
meant that the definition of Aboriginal rights is
based on the nation’s longstanding
c
c slowly evolving. It is the result of occupancy and use of the land.
c many court decisions as Aboriginal Having Aboriginal title is not the
c people sue the government, the same as owning land in fee simple. If
c
c government defends its perspective, people own land in fee simple, they
c and the Supreme Court rules how may do anything they like with it —
c
c Aboriginal rights should be inter- keep it, sell it, lease it, give it away,
c preted in light of the constitution. or even destroy it.
The Supreme Court c
plays a large role in c A group with Aboriginal title
determining Aboriginal c cannot make use of the land in such
c
rights. What are the c a way that the land is alienated from
benefits and drawbacks c the group’s historic connection to it.
of using the court to c For example, if an Aboriginal group
determine Aboriginal c
c
rights? What are the c
benefits and drawbacks c The fact is that when the
of using other methods, c
c settlers came, the Indians
such as negotiation or
c were there, organized in
constitutional change?
c societies and occupying the
land as their forefathers had
The relationship between the government and done for centuries.
Aboriginals is trust-like rather than adversarial, This is what Indian title
and...contemporary recognition and affirmation means...
of Aboriginal rights must be defined in light of
— Supreme Court of Canada,
this historic relationship.
Calder v. Attorney General of British
— Supreme Court of Canada, R. v. Sparrow (1990) Columbia (1973)

86 CONTEMPORARY ISSUES
has title to a piece of land based on T E S T S T O E S TA B L I S H R I G H T S
its significance as a hunting area,
they cannot build a parking lot on it. In recent years, several Supreme Court decisions
In legal terms, Aboriginal title is have outlined tests that can be used as guidelines
sui generis, which means it is unique for interpreting Aboriginal rights claims. These tests
and somewhat difficult to define in include one for Aboriginal title and one for
property law. Aboriginal title is a Aboriginal rights.
collective property right, not an
A b o r i g i n a l T i t l e Te s t
individual property right. It is the
• The group must have occupied the land before
right of the group to use, occupy,
the Crown asserted sovereignty over the area.
and determine the uses to which a The group can prove occupation and use of the
piece of land will be put. land using its traditional laws in relation to the
Aboriginal title is not the same land, as well as evidence of hunting, building,
as Aboriginal rights. Aboriginal cultivation of fields, fishing, and so on.
rights can include a wide variety of • The group must have had exclusive occupation
activities, such as hunting, fishing, of the land.
gathering, or ceremonial practices.
• The group must still have a substantial connection
Members of an Aboriginal group
to the land.
might have the right to hunt or fish
on Crown land, for example, with- A b o r i g i n a l R i g h t s Te s t
out actually having title to the land. • The activity the group is trying to protect must be
Crown land is owned by the Crown integral to the group’s distinctiveness as a society.
and managed by the federal or • The group must have exercised the activity
provincial government. before contact with Europeans or before the
A frequent legal argument that Crown asserted effective control over the people.
has important implications for
• The group must still practise the activity, although
Aboriginal rights concerns the source it can be in a modern form.
of Aboriginal title. First Nations and
Inuit peoples maintain that their p REFLECTION
Aboriginal title comes from the Title claims are rooted in land, while rights claims are
Creator. As such, it long predates rooted in activities. A claim to Aboriginal title does
any legislative act of a European or not necessarily involve the right of self-government,
Canadian government and is there- but does imply possessing some authority over the
fore an inherent right. It cannot be uses to which land can be put. In small groups,
removed, limited, or even defined research and briefly describe one court case dealing
with certainty. with Aboriginal title and one dealing with Aboriginal
A different interpretation — rights that highlight the distinction between the two.
one sometimes argued by Canadian
governments — is that Aboriginal
title stems from the Royal Procla- that Aboriginal title comes from the
mation. The proclamation declared Crown, not the Creator. This makes
that lands west of the Appalatian it a right that can be limited or
Mountains “are reserved” for extinguished by the Crown or by
“nations and Tribes of Indian.” The the government acting on behalf of
implication of this interpretation is the Crown.

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 87

 c
c
c
c
c
c
c
c N U M B E R E D T R E AT I E S doubt, the court suggests that treaty
c In legal terms, the Canadian govern- interpretations err on the side of
c
c ment viewed the treaty process as generosity for First Nations.
c the “extinguishment of Indian Title.” According to oral history, for
c The government believed it was example, leaders of the Blackfoot
c
c receiving title to the land in Confederacy did not transfer owner-
c exchange for various treaty rights. ship of the land in Treaty Seven.
c
c From the government’s perspective, Rather, they promised to live in
c this made sense: First Nations had peace with settlers and, in return,
c
c title to the land and they willingly asked for their help in adjusting to a
c agreed to surrender it to the new way of life. Oral history
c
c government through treaties. indicates that they were promised
Dr. John Snow is a
respected Nakoda c From a First Nations perspective, that they could continue to exercise
c the treaties are agreements between control over most of their land and
Elder, author, and c
storyteller who was c nations to share the land and its pursue their traditional livelihoods.
chief of his band from c resources. First Nations leaders The oral history from other areas
1968–1990. His book, c
c maintain that their ancestors could report similar understandings of the
These Mountains Are
Our Sacred Places,
c not have given the land to the new- treaty agreements.
c
contains the history of c comers for one simple reason: it was For example, in the statement
his people before, c not theirs to give. that follows, Lazarus Roan recounts
c
during, and after
c In addition, many First Nations stories told by his father and uncles,
signing Treaty Seven. c leaders argue today that written who were present at the Treaty Six
c treaty agreements do not always signing:
c
c include everything their ancestors
c He [the government negoti-
agreed to during negotiations. The
c ator] would indicate with his
c Supreme Court of Canada agrees. It
hands approximately one foot
c maintains that interpretations of
c in depth: “That is the depth
c treaty agreements must go beyond
that is requested from you, that
c the written text to include the “spirit
c is what the deal is, nothing
c and intent” of treaties as described
below the surface, that will
c through oral history. Where there is
always belong to you. Only
land where agriculture can be
This [treaty cession] was something that was difficult, if
not impossible, for Indians to understand because we
viable; other areas where
have no concept of individual land “ownership” in the nothing can grow, that will
European sense. In those days, we did not “own” the always belong to you. You will
land by receiving title or patent from a tribal authority. always be the owner of that
My people had always believed that the land was land.… And when the negotia-
created for its Indigenous inhabitants — animal, bird, tion has been concluded, and
and man. Our philosophy of life is to live in harmony settlers begin to homestead, it
with nature and in accordance with the creation of the will only be their property that
Great Spirit. Anyone wanting to live by those principles will be fenced off, that you will
is more than welcome, and, if he wants to, he may not be allowed to enter. Other
participate in our traditional ways, religion, and culture.
areas which are not homesteaded
— Chief John Snow, Nakoda, and remain open will belong to
These Mountains Are Our Sacred Places
you as long as the sun shines.”

88 CONTEMPORARY ISSUES
 As you learned on pages 50–52, treaties or other agreements. The
different opinions about the nature federal government established a
of treaty promises stem from many process to deal with land claims in
factors. Translation issues and the 1970s, so most claims are pursued
differences between oral agreements outside the courts. Aboriginal peoples
and the written treaties are among generally resort to the courts to settle
the most significant. land claims only when negotiations
To further complicate Aboriginal fail. You will learn more about land
title issues, many First Nations lost claims in Chapter Four.
their traditional lands without signing From a First Nations perspective,
any formal treaties. Most of the First decisions about land rights covered
Nations in British Columbia, for by treaties or outside treaties need
example, have never formally released to consider oral testimony, such as
title to their traditional lands. These that offered by Lazarus Roan. In
First Nations believe that they still the Supreme Court’s landmark
hold title to the land, in both the 1997 Delgamuukw decision, it ruled
traditional and the European sense. that oral history should be consid-
Land claims are legal actions ered equal to other forms of
taken by Aboriginal groups to restore evidence, such as written records,
their rights to the land and to address and that oral history can be used to
specific grievances with respect to establish Aboriginal title to land. ues for I
Iss

nv
estigatio
C O M PA R I N G T R E AT Y P R O M I S E S A N D T R E AT Y T E R M S
n
In approaching the terms of a treaty... What characterizes a treaty is the
the honour of the Crown is always intention to create obligations ...
involved, and no appearances of Once a valid treaty is found to exist,
“sharp dealing” should be sanctioned. that treaty must in turn be given a
— Ontario Court of Appeal, just, broad, and liberal construction.
R. v. Taylor and Williams (1981) — Supreme Court of Canada, R. v. Sioui (1990)

What rights are promised by treaties and how should they

be interpreted?

W H AT T O D O
1. On page 52, you did an activity that 2. Prepare a chart of written treaty promises
used written and oral treaty agreements compared to oral history accounts. Note
regarding self-government. In your areas where the accounts coincide and
groups, use the resources you identified where they differ.
in that activity to compare treaty terms 3. Using the Supreme Court’s guidance on
regarding Aboriginal title or other interpreting treaties, write a new treaty
Aboriginal rights. that incorporates both oral and written
treaty promises.

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 89

 SYMBOLISM AND EXPRESSION

O R A L H I S T O RY S K I L L S
In 1912, Onondaga Chief John A. Gibson demonstrated just how much talent oral history requires,
when he dictated the only complete written version of the Great Law of Peace. For more than
four-and-a-half centuries, this law had been passed down orally with reference to a wampum belt.
Chief Gibson’s dictation was 514 handwritten pages.
Songs, stories, ceremonies, and dances form the heart of First Nations and Inuit history, law,
and governance. They are all elements of a group’s oral tradition, which varies in form and content
from Aboriginal group to group. Oral history, as a distinct part of an oral tradition, is history from
an Aboriginal perspective. The courts have identified three types of oral history:
• contemporary or past accounts of past events
• present-day speakers’ memories of past events
• sworn statements of pre-contact ownership of land
In the Delgamuukw case, the Gitksan and Wet’suwet’en chiefs offered evidence of their people’s
traditional system of land tenure through a description of the adaawk of the Gitksan and the kungax
of the Wet’suwet’en.
The adaawk, for example, explains information about a particular house (clan group) and how that
house owns the land. It includes information about crests, names, and fishing stations connected to
the house. It also describes how the house first attained the land and territory associated with it.
Such testimony attests to the Gitksan people’s system of land tenure and laws regarding land
use. Other First Nations and Inuit peoples have their own customs that relate to each group’s
needs and the conditions in their specific territory.

Yo u r P r o j e c t
1. Choose one of the following options as the 2. Prepare or
basis of an oral history you will tell your research your
class: story. Think about
Topic A: a story from an indigenous people’s why you are telling
culture that relates some element of their it. What might
history. You will need to also research the others learn? Be
culture the story originates from so that sure your story will
you will understand the story’s full be meaningful to
meaning and purpose. your audience — in
Topic B: an historical incident that you this case, your
would like to tell as an oral history. You classmates. Practise the story until you can
will need to think about how you can tell it naturally, without referring to notes.
make the historical event come alive. Be 3. Share your story with the class.
sure to follow the facts of the story, but 4. What did you find most difficult about
remember that you do not need to tell relating the story? What does your
every detail. To keep your audience’s experience teach you about the skill needed
attention, be choosy in your selection of to relate oral history? Write your responses
what you relate. in a paragraph to submit to your teacher.
Topic C: an event from your own life that
you would like to share. You might want Going Further
to start by writing down key parts of the Invite an Elder from your community to visit the
story that you think are significant. class to share part of the oral history of his or
her people. You might specifically request oral
history related to land use and occupancy.

90 CONTEMPORARY ISSUES
MANITOBA ACT
Since 1982, Aboriginal rights Louis Nabess and Pierre
cannot be extinguished by federal Carriere of Cumberland
or provincial legislation. The only House, Saskatchewan,
pose after a successful
way they can be extinguished is hunting trip for wildfowl
though explicit surrender or consti- in 1953. Ways of life
tutional change. that include hunting,
The Manitoba Act is often used trapping, and fishing
as an example of explicit surrender. are an integral part of
traditional Métis culture.
It clearly states that its purpose is to
In your opinion, are
“extinguish the Indian title preferred traditional harvesting
by the Half-breeds.” Individuals rights justifiably
who took scrip relinquished their restricted to protect
title to land, although not neces- endangered species?
sarily their other Aboriginal rights. Discuss this question
in small groups.
In the case of Morin and
Daigneault, the Saskatchewan Court relationship between First Nations
of Queen’s Bench affirmed that and the government. A government’s
Métis harvesting rights had not fiduciary obligation means that it
been extinguished by the Dominion must act in a First Nation’s best
Lands Act or Manitoba Act. This is interests in dealing with the nation’s
because neither document explicitly land. For example, if the federal
mentions the issues of hunting and government makes an agreement to
fishing. sell a First Nation’s land or resources,
Other cases in the courts will it must do so at fair market value.
deal with how the scrip process Some land claims today deal with
affects Métis land rights. Some instances where First Nations believe
argue that the many documented the government did not fulfill its
cases of fraud that deprived Métis fiduciary obligations. In some cases,
people of their land rights leaves land or resources were sold for far
their Aboriginal title to land intact. less than market value.
The Indian Act withheld land
INDIAN ACT ownership in fee simple to prevent
Under the Indian Act, First Nations First Nations from selling, trading,
have only usufructuary rights to or giving away the land that their
reserve lands. This term means they children and grandchildren would
can use the land, but they do not eventually live on. However, this
own it in fee simple. A First Nations decision severely reduced First
member may “possess” a piece of Nations’ economic power. First
reserve land in the sense that their Nations communities and individuals
home and business may be on it, but cannot sell or mortgage their land.
he or she cannot sell it. This restriction makes it difficult for
Reserve lands belong to the a community to raise capital for
Crown and are held in trust for First business ventures or even for an
Nations in perpetuity — forever. individual to borrow money to build
This establishes a trust, or fiduciary, a house.

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 91

 simple must also accept the accom-
panying risks. This makes owner-
ship in fee simple a controversial
step in many communities.

N AT U R A L R E S O U R C E S
TRANSFER AGREEMENTS
When Manitoba, Saskatchewan,
Alberta, and British Columbia first
became provinces, they had differ-
ent status from other provinces. In
the rest of Canada, Crown lands
and resources fell under provin-
Ranchers spearheaded c Many First Nations leaders see cial jurisdiction. In the four western
the campaign for c land ownership in fee simple as an provinces, Crown lands and
provincial control of c
c important prerequisite for achieving resources were owned by the federal
natural resources. They c self-determination for their people. government.
needed Crown land for c
their cattle. To this day, c Other people worry that ownership For years, the governments of
many provincial parks in c in fee simple could lead to the loss the four provinces fought for equal
c
Alberta are designated as c of land for future generations if a treatment. In 1930, the federal
multi-use, which allows c group sells or forfeits a mortgage on government finally agreed. The
some industries and c their land. Natural Resources Transfer Agree-
ranching operations to c
use park land. c Each community that accepts ments (NRTAs) turned Crown land
c the benefits of ownership in fee over to provincial jurisdiction.
c

EXCERPT FROM THE NATURAL RESOURCES TRANSFER AGREEMENTS

Indian Reserves
10. All lands included in Indian reserves within the Province, including those selected and surveyed
but not yet confirmed, as well as those confirmed, shall continue to be vested in the Crown and
administered by the Government of Canada for the purposes of Canada, and the Province will
from time to time, upon the request of the Superintendent General of Indian Affairs, set
aside, out of the unoccupied Crown lands hereby transferred to its administration, such further
areas as the said Superintendent General may, in agreement with the appropriate Minister of the
Province, select as necessary to enable Canada to fulfil its obligations under the treaties with the
Indians of the Province, and such areas shall thereafter be administered by Canada in the same
way in all respects as if they had never passed to the Province under the provisions hereof.…
12. In order to secure to the Indians of the Province the continuance of the supply of game and fish
for their support and subsistence, Canada agrees that the laws respecting game in force in the
Province from time to time shall apply to the
Indians within the boundaries thereof, p REFLECTION
provided, however, that the said Indians shall
have the right, which the Province hereby Legalese is a slang term that is used to
assures to them, of hunting, trapping and fishing characterize the difficult language of legal
game and fish for food at all seasons of the year documents. In plain and clear language,
on all unoccupied Crown lands and on any other re-write the clauses from the Natural
lands to which the said Indians may have a right Resources Transfer Agreements.
of access.

92 CONTEMPORARY ISSUES
 Although Aboriginal peoples have the right to hunt on privately
were not consulted about the transfer, owned land if that land is not put to
the agreements had implications for any obvious use. However, the court
their rights. First Nations reserves held that, although Treaty Eight
are on Crown land, and treaties protects the right to commercial
guarantee signatories the right to activity on Crown land, the NRTAs
hunt and fish on Crown land. Treaty limited harvesting to subsistence
agreements meant that the NRTAs hunting, trapping, and fishing. In
needed to include a section outlining other words, the court interpreted
how reserves would be affected by the NRTAs as extinguishing com-
the agreements. mercial harvesting rights and
In Section 10, the NRTAs clearly overriding the treaty promise.
stated that the Crown land being Whether or not Métis harvesting
transferred to provincial jurisdiction rights are protected in NRTAs is
did not include reserves. Reserves still being argued in the courts.
would still be administered by the
federal government. Furthermore, if SECTION 35
the federal government needed Since 1982, many court cases have
more Crown land to fulfill its treaty clarified how Section 35’s recogni-
obligations, the provinces would tion of “existing Aboriginal and
have to provide it. treaty rights” should be interpreted.
This requirement could add up This clarification is ongoing and
to a lot of land. For example, several will continue to be further defined
Alberta First Nations believe that in the future. In general, the court
they never received the land they has indicated that Aboriginal rights
were entitled to by treaty. Since 1986, are not absolute. Like other kinds of
Alberta has turned over 72 146 hec- rights, they are subject to a balance
tares and paid $57.6 million in of interests.
compensation for land that remains For example, the courts have
under its control. Several other been clear that they will not deprive
large claims are still in negotiation. innocent third parties of their rights
In addition, the NRTAs gave the in order to satisfy claims to
provinces only limited power to Aboriginal rights. This means that
regulate First Nations hunting and settlements for land claims to areas
fishing. On unoccupied Crown land, such as Vancouver or Ottawa will not
First Nations people with treaty force all the non-Aboriginal people
rights can hunt, fish, and trap year- currently living there to move.
round — provided they are doing so Other ways of settling a successful
for food. Supreme Court decisions claim in such cases would need to be
have ruled that they can even do so found — most likely through
outside of the province in which financial compensation.
they live. One question that is frequently
In its 1996 decision in the tried in the courts concerns
Badger case, the Supreme Court Aboriginal harvesting rights and the
ruled that Treaty Eight signatories extent to which they can be limited

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 93

 The Little Red River Cree Nation helps its members by As her ancestors did, Loretta Mercredi makes a living from
developing traditional and non-traditional jobs on its land. the land’s resources. However, Mercredi works in a modern
Little Red River Forestry, for example, provides many full-time way. She works in the Central Maintenance and Supply
and seasonal jobs. It also consults with Elders, trappers, and Services department at Syncrude Canada.
other community members to be sure its forestry practices do
not impinge on traditional ways of life and values.

c by federal or provincial laws. Crown and must be consistent with

c Harvesting rights include hunting, “the unique contemporary relation-
c
c fishing, and trapping rights, but ship, grounded in history and policy,
c could potentially include the right between the Crown and Canada’s
c
c to make a living from the land by aboriginal peoples.”
c logging or whatever other means In addition, the court clarified
c
c necessary in the present time. that Aboriginal rights are geograph-
c The Supreme Court’s 1990 deci- ically specific. Just because one
c
c sion in the Sparrow case established group has a right to fish off the west
c a framework for assessing when coast does not mean the rights will
c aboriginal harvesting rights can be apply to other groups.
c
c restricted by federal or provincial law. In a trio of 1996 decisions
c The court ruled that some objectives (Van Der Peet, Gladstone, and
c
c could override Aboriginal rights, Smokehouse), the Supreme Court
c such as economic development or ruled that an Aboriginal right to sell
c
c the protection of endangered species. fish commercially can exist if the
c However, the government must right was an integral part of the
c
c have “compelling and substantial” culture and customs of the specific
c reasons before taking this action. Aboriginal group before contact.
c The court stated that any limita- The practice must be a part of the
c
c tions must uphold the honour of distinctive culture of the group,
ow ledge c although it may have evolved into a
Kn
modern form.
enous

This page gives two examples of Aboriginal people In its decision, the court affirmed
who make a living from the land’s resources. In your that the constitution did not create
di g

In opinion, should Aboriginal harvesting rights include Aboriginal rights — they already
the right to make a living in any way from the land, existed. Governments cannot extin-
including commercial, non-traditional practices? guish rights, but can infringe upon
Discuss this issue with a partner. or regulate them using guidelines
established in the Sparrow case.

94 CONTEMPORARY ISSUES
 In the Van Der Peet decision,
the court was careful to say that the
pre-contact provision for the rights
test does not rule out Métis claims.
It stated that other dates may need Métis hunter Steve
to be set for other groups of Powley attracted media
Aboriginal peoples, such as Métis attention across the
country when the
groups that developed after contact. Supreme Court supported
Each decision about Aboriginal his Aboriginal hunting
rights would need to be reached on rights. How might this
a case-by-case basis. court decision impact
Métis land claims?
The Powley Case
In 2003, the Powley case established surrounding the identification of
an important precedent for Métis people entitled to Métis rights made
rights under Section 35. In the case, it impossible to guarantee those
the Supreme Court upheld an rights. In the Powley decision,
Ontario court decision that asserted Mr. Justice Sharpe rejected this
that Steve Powley and his son Roddy argument. He stated
had Aboriginal hunting rights under
I do not accept that
Section 35. The Ontario appeal
uncertainty about identifying
judge noted in his judgement that
those entitled to assert Métis
Surely, at the heart of s. 35(1), rights can be accepted as a
lies a recognition that justification for denying the
aboriginal rights are a rights…The basic position of
matter of fundamental justice the government seems to have
protecting the survival of been simply to deny that these
aboriginal people, as a people, rights exist, absent a decision The status of Aboriginal
on their lands. The Métis from the courts to the women, such as
have aboriginal rights, as contrary…The government Jeannette Corbiere Lavell
people, based on their prior cannot simply sit on its hands and others who fought
gender discrimination
use and occupation as a and then defend its inaction
in the Indian Act, has
people. It is a matter of because the nature of the right improved since 1982.
fairness and fundamental or the identity of the bearers Section 35 of the
justice that the aboriginal of the right is uncertain. Constitution Act gives
rights of the Métis which explicit protection for
The court’s statement clearly gender equality. Supreme
flow from this prior use and
indicated that the federal government Court decisions have
occupation, be recognized ruled that this equality
needed to take action to address
and affirmed by s. 35(1) of takes precedence over
Métis concerns. Although the Powley
the Constitution Act, 1982. even traditional practices
decision only applies in Ontario,
that might otherwise be
One of the arguments the Métis leaders across the country considered an Aboriginal
Crown made in its case against the hailed it as a strong precedent in right. What is your opinion
Powleys was that the uncertainty support of Métis rights everywhere. on this issue?

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 95

 TA L K I N G C I R C L E

THE JUSTICE OF RIGHTS

As you learned in this section, Aboriginal leaders are actively working to define and
clarify what Aboriginal rights are and who
holds them. In your talking circle, discuss
some of the issues and ideas you have
read in this section, along with the
perspectives on pages 96–97. Consider
the questions that follow as you read:
• How are Aboriginal rights protected
by the constitution?
• How are Aboriginal people’s
individual rights protected?
As you hold your talking circle, listen carefully • What does justice mean to you?
to each person’s point of view so that you can How should justice be a part of
remember as much as possible for your notes interpreting rights as recognized
following the discussion. by various laws?

One of the most persistent red herrings in has any Aboriginal rights. This is where
public debates that consider Aboriginal the confusion often begins. Aboriginal
rights of self-government, or treaties, is rights are group rights, and not individual
the idea that setting up Aboriginal rights. They are expressly recognized
governments, or negotiating treaties and affirmed in Part II of the
with people who are Canadian Constitution Act 1982, where
citizens, is “a form of they are carefully separated
apartheid, based on from the individual rights
‘racial background.’”… contained in the
It is worth pausing to Charter, which makes
emphasize that “race” up Part I of the Act.
is an idea and not a The Supreme
biological fact. There W H AT A R E
Court of Canada
are no biological ABORIGINAL has explained that
races. The term is RIGHTS? Aboriginal rights
usually applied to a are held by historic
group singled out for groups that have lived
special attention for and continue today
political reasons. That to live in a particular
the term has no scientific territory or place. Aboriginal
content is a fact that is rights are specific to distinct
beyond contention. Those historic societies in their own ancient
individuals who happen to have one or homelands. They are not held by persons
more “Aboriginal” ancestors and who on account of their biological “heritage.”
are treated adversely on that account, Aboriginal rights can only be exercised
are entitled to the remedial benefits of by persons by virtue of their membership
the Charter [of Rights and Freedoms] in a particular historic community in a
as interpreted by the courts. But this particular place.
does not mean that each such individual
— Paul Chartrand, “Debunking the ‘Race’ Myth
in Debating B.C. Treaties”

96 CONTEMPORARY ISSUES
Indian Nations in Canada were never The ways that are remembered in story,
conquered. European traders and, in later song, and ceremony are the inherent rights
years, settlers, were made to feel of the Blackfoot people. That is, they
welcome in a land and environment have a right to determine how these
which was alien to them. traditional ways of governing
Throughout years of European relations can be interpreted
settlement and expansion, in today’s society. It is a big
Indian Nations sought a challenge, no doubt. But it
mutual accommodation, one starts with cross-cultural
that would permit a bountiful understanding. When you
land to be shared to the better understand the land that
benefit of all. surrounds you, it comes alive
Indian rights to land, for you and in turn, you treat it
resources, culture, language, a as you treat other life, with respect.
livelihood and self-government are not For the Blackfoot, much has changed,
something conferred by treaties or offered but the willingness to share the land has
to Indians as concessions by a beneficent not. However, it must be done in a way that,
government. These are the rights that like the many generations of Blackfoot that
Indian Nations enjoy from time immemorial. lived on the land, more generations to
These rights are pre-existing and inviolable. come from all races can continue to source
A Canadian constitution can accommodate the earth for sustenance, for life. It is the
Indian rights, it cannot diminish, alter, or inherent right of the Blackfoot people to
eliminate them. use their traditional land management and
Indian Nations understand the constitution governance practices. It is the balance of
to be a pact among founding peoples, the natural laws of the environment, and
among which we include ourselves. We the spiritual laws of the ceremonies that
understand our special constitutional allowed the Blackfoot to live so long and
relationship with the Federal Government continue to live in their traditional territory.
to be in the nature of a partnership with the These rules are important not just for the
federative system, which was intended to Blackfoot people, but for biodiversity and
permit us to survive and prosper as Indian the sustainable use of Earth’s resources
Nations, while contributing to Canada’s so that all people can benefit and live in
total development. balance and harmony with the earth.
— Union of British Columbia Indian Chiefs — Paulette Fox and Duane Mistaken Chief,
Kainai First Nation, “Blackfoot Land Governance”

p REFLECTION
LOOKING BACK
What are Aboriginal rights? What ideas
do each statement on pages 96–97 Summarize your work in this section
contribute to your understanding of by researching one court case that
Aboriginal rights? Think about ideas relates to Aboriginal rights. Choose
from your talking circle discussion and one mentioned in this section, or
write notes covering your own ideas and another that interests you. Prepare
those of your classmates. a summary that explains the case’s
significance in terms of Aboriginal title,
Aboriginal rights, harvesting rights,
self-determination, and so on.

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 97

 c
c
c
c
Re-Building Self-Government
c
c
• greater protection of
AS YOU READ Aboriginal cultures, and
Since 1982, most progress on Aboriginal self-government support for Aboriginal
has been made through negotiation, not court action, languages, traditions,
although court decisions continue to influence the federal customs, and art
government’s policies and law-making.
In addition, Aboriginal leaders
As you read this next section, recall what you know about agree that self-government is an
the diverse cultures and histories of Aboriginal peoples. inherent right. For First Nations
Why might some communities have a harder time than
and Inuit peoples, this right comes
others achieving self-government? Why do you think the
greatest self-government progress has been made at the
from the Creator. For Métis people,
community level, rather than constitutional level? the right comes from their position
as a uniquely Canadian people that
are indigenous to this country in a

M
ost Aboriginal leaders agree that self- way that no other people are. Métis
government has great importance for the people are a cultural, political, and
economic blend of indigenous
future of their people. Self-government offers the North American and immigrant
opportunity to determine the direction of their European roots.
c
Aboriginal perspectives on self-
political, economic, cultural, and government and many other topics
c
c social futures. From this perspec- were expressed in the Report of the
c tive, self-government promises Royal Commission on Aboriginal Peoples,
c
c • greater political control over published in 1996.
c
c decisions that affect their
c nations and independence For this rebirth to be
c
c from outside pressures and meaningful, anything short
c influences by Canadian of true independence and
c complete freedom will not be
c federal, provincial, and
c municipal governments acceptable. Trimmed to the
c bare bone, this means we must
c
• greater opportunities for
regain control over the basic
c economic development to
c decisions affecting our everyday
end poverty, unemployment, lives, our communities, our
c
c dependency, and the children, our futures. Parents
c unequal distribution of must regain the right to make
c
c wealth between Aboriginal decisions about the lives of their
c peoples and other Canadians children; their education, the
c
c • greater opportunities for values they grow up with, their
c culturally sensitive services preparation for life. We are
c that will help overcome talking about the right to make
c
c problems such as poor the decisions that will allow our
c housing, ill health, communities to flourish, the
c simple right to earn a living in
c inadequate education, and
the way we feel will best reflect
c feelings of alienation
c our identity and our society.
— Harold Cardinal,
The Rebirth of Canada’s Indians

98 CONTEMPORARY ISSUES
R O YA L C O M M I S S I O N O N Georges Erasmus, former chief of the Assembly
ABORIGINAL PEOPLES of First Nations, was co-chair of the Royal
Commission on Aboriginal Peoples in 1996.
The federal government established
The commission also included Viola Robinson,
the Royal Commission on Aboriginal former president of the Native Council of
Peoples in 1990. The commission Canada and Mary Sillett, former vice-president
was charged with the task of assessing of the Inuit Tapirisat of Canada. What does their
the social, cultural, and economic presence on the commission tell you about the
challenges facing First Nations, influence of national Aboriginal organizations on
the federal government?
Métis, and Inuit peoples, and to
recommend solutions.
commission noted three basic models
Between 1991 and 1996, the
for self-government, asserting that a
Royal Commission held 178 days of
one-size-fits-all system could not
hearings, with 3500 witnesses. In
work. The diversity of First Nations,
late 1996, the commission released
Inuit, and Métis cultures and history
its report in six volumes. It called for
would require a diverse selection of
a far-reaching change in the
self-government models.
relationship between Aboriginal
peoples and the rest of Canada. Responses to the Royal
Among its many conclusions, C o m m i s s i o n ’s R e p o r t
the report recommended Most Aboriginal leaders agreed with
the report’s conclusions. Many felt
• a proclamation by the
that it clearly outlined Aboriginal
federal government to admit
peoples’ situation in Canada and
past mistakes and establish a
provided practical ways to improve
bilateral, nation-to-nation
their people’s lives.
relationship between Canada
In January 1998, the federal
and Aboriginal peoples
government released its response in
• constitutional recognition
a document called Gathering Strength:
of the inherent right of
Canada’s Aboriginal Action Plan. In
Aboriginal peoples to
the document, the government
self-government
expressed its regret for past actions
• an Aboriginal constitutional
that damaged Aboriginal peoples
veto on matters affecting
and communities. It then set out a
the constitutional rights of
plan to develop a new relationship
Aboriginal peoples
between the federal government
The Royal Commission pro- and Aboriginal peoples.
posed that Canadian federalism be The plan included a pledge to
revised to include three orders of fully implement the terms of all
government: federal, provincial, and treaties, strengthen Aboriginal self-
Aboriginal. The commission main- government, provide new funding
tained that each level of government arrangements for Aboriginal govern-
should have full powers over the areas ments, and develop programs in
in its jurisdiction, unlike municipal consultation with Aboriginal peoples
governments that have powers to promote greater social, cultural,
delegated to them by the provincial and economic development for their
or territorial governments. The communities.

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 99

 c
c
c
c
c
c
stigation c
ve c
es for In

N E G O T I AT I N G S E L F - G O V E R N M E N T
su

The Royal Commission on Aboriginal Peoples listed core areas of jurisdiction it considered
Is essential to self-government. These core areas included
• citizenship and membership • taxation
• government institutions • family matters, including marriage,
• elections and referendums divorce, adoption, and child custody
• access to and residence in • property rights, including succession
the territory and estates
• lands, waters, sea-ice, and • health
natural resources • social welfare, including child welfare
• protection and management of • education
the environment • language, culture, values, and
• economic life, including commerce, traditions
labour, agriculture, hunting, trapping, • some aspects of criminal law
fishing, etc. and procedure
• regulation of businesses, trades, • administration of justice
and professions • policing
• management of public monies and • housing and public works
other assets

What powers are most important for self-government?

W H AT T O D O
1. Compare the Royal Commission’s core 4. Compare your list of essential powers
areas of jurisdiction to the current powers with other pairs to see if you can find
of band councils as listed in Section 81 of consensus. Once you do, approach
the Indian Act. What additional powers did another group with the same goal.
the Royal Commission recommend? Why Repeat the process until you have
do you think these might be significant for classroom-wide consensus or until
a self-governing body? Which powers do you run out of time.
you think are most significant?
2. In any negotiation, parties must be flexible T h i n k A b o u t Yo u r P r o j e c t
on issues considered of less importance Think about this activity in terms of the task
in order to gain on issues considered facing negotiators. What did you learn?
critical. Work with a partner to select a list Write a paragraph expressing your ideas.
of essential powers for self-government
from the Royal Commission’s list.
3. Imagine a scenario in which you are
negotiating with the federal government
and you get all the powers you consider
essential except one. Would you agree to
give up the one power in exchange for
the rest? Are there any powers that you
consider so important that you would risk
losing the whole deal? Which ones?

100 CONTEMPORARY ISSUES

FEDERAL GOVERNMENT
PERSPECTIVES
In 1995, the federal government
established a policy that moved self-
government negotiations forward,
even without constitutional support.
The policy asserted the principles
that the government would follow in
self-government negotiations. Key
The federal government’s 1995 policy on self-government reflected what
principles from the policy are
it had already learned through land-claims negotiations: solutions usually
as follows: require the involvement of a provincial or territorial government. Here,
• The inherent right of self- representatives of the Janvier First Nation in Alberta receive its land-claim
settlement in 1993. (Left to right: Councillor Edith [Link], Chief Fred Black,
government is recognized Councillor Stuart Janvier, Councillor Jimmy Janvier) The First Nation received
as an existing Aboriginal 1376 hectares of land and $5 000 000. The Government of Alberta contributed
right under Section 35 of the land and $1 800 000. The Government of Canada contributed $3 200 000.
the Constitution Act, 1982.
• Aboriginal self-governments
should operate within the
framework of the Canadian provincial and territorial
constitution, and areas of jurisdiction.
self-government powers • Aboriginal self-government
should be harmonious with does not mean sovereignty
other levels of government in an international sense,
under the constitution. but rather an enhancement
• Provincial and territorial of Aboriginal peoples’
governments must be participation in the
part of negotiations for Canadian federal system.
self-government because • The Canadian Charter of
some of the powers under Rights and Freedoms will
negotiation may affect bind Aboriginal governments.

S TA G E S I N S E L F - G O V E R N M E N T N E G O T I AT I O N S

Framework Agreement:
The first stage of
negotiation results in a
™ Agreement-in-Principle: The
Agreement-in-Principle
(AIP) is the second stage
™ Final Agreement: The Final
Agreement is based on
the AIP. It must be ratified
Framework Agreement. in the negotiation process. and signed by all parties.
The groups involved AIP negotiations are often It is then made effective
agree on the issues to be the longest stage because through federal and, in
discussed, on how they negotiators must address some cases, provincial
will be discussed, and on and resolve the issues legislation. Final
deadlines for reaching an set out in the Framework agreements include
Agreement-in-Principle. Agreement. The AIP implementation plans.
generally contains all of
the major elements of
the Final Agreement.

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 101

 c
c
c
c
c
c
c
c Implementation Plans
c Each self-government agreement to be carried out. The requirement
c includes an implementation plan. to have implementation plans ensures
c
c The government describes imple- that self-government agreements
c mentation plans as the “who”, cannot be concluded without agree-
c
c “how”, “when,” and “how much” of ment upon crucial issues, such as time
c the self-government agreements. frames and financial contributions.
c
c Implementation plans ensure that The goal of implementation plans is
c each partner to the agreement clearly to have fewer misunderstandings
c
c understands its obligations, including between partners once an agree-
stigation c how and when the obligations need ment is reached.
ve c
es for In

I N V E S T I G AT I N G T H E F E D E R A L P O L I C Y
ON SELF-GOVERNMENT
su

Is The federal government’s 1995 assertion that Aboriginal peoples have an inherent right to self-
government made it possible for many communities to move forward with self-government
proposals. Today, most land claims negotiations include negotiations for self-government.

W h a t i s t h e f e d e r a l g o v e r n m e n t ’s p o l i c y o n
self-government negotiations?

W H AT T O D O
1. Divide the class into enough groups that 2. Research your
each can investigate one of the topics topic and prepare
listed below. All are found in the federal a lesson for the
government’s policy on self-government rest of the class. If
negotiations. The policy, called Aboriginal possible, prepare
Self-Government: The Government of notes that you
Canada’s Approach to Implementation can photocopy for
of the Inherent Right and the Negotiation your classmates
of Aboriginal Self-Government, is or deliver using a
available online. tool such as
PowerPoint™ or
To p i c s an overhead projector.
• scope of negotiations 3. Prepare two or three questions related to
• fiduciary obligations your lesson and give them to the teacher.
• accountability Your teacher will prepare a class quiz
• financial arrangements using questions from all the groups.
• access to programs 4. Deliver your lesson to the class and be
• implementation of plans prepared to answer questions. While
• approach to First Nations other groups present, take notes and ask
• approach to Inuit for clarification of any material you do not
• approach to Métis and First Nations understand.
groups that do not have a land base 5. Take the quiz distributed by your teacher.
• approach to Métis with a land base
• approach to the western Northwest
Territories
• approach to the Yukon

102 CONTEMPORARY ISSUES

PROVINCIAL population than in eastern and
GOVERNMENT central provinces.
PERSPECTIVES In 1989, the federal govern-
First Nations relationships with ment created a Federal–Provincial
Canada have historically been con- Relations Directorate to co-ordinate
ducted through the federal govern- federal and provincial govern-
ment. The Royal Proclamation of ment activities. Since the federal
1763 and treaties established the government’s 1996 policy on self-
relationship as one of nation to government negotiations, the provin-
nation. First Nations leaders have cial governments have become full
been reluctant to include provincial participants in the process. Their
governments in negotiations with inclusion alleviates many provin-
the federal government because they cial concerns and makes them
did not want to lose any symbolic or more receptive to self-government
real status as sovereign nations. proposals.
Métis and First Nations people First Nations leaders have gen-
without status have always fallen erally accepted the practical reasons
under provincial or territorial for inclusion of the provincial gov-
jurisdiction, but provincial govern- ernments. Today, self-government
ments have historically offered few, agreements are generally tripartite
if any, programs to address their agreements, which means they
specific needs. involve three partners: the federal
During the conferences to amend government, a provincial or terri-
Canada’s constitution during the torial government, and one or more
1980s, some provinces were vocal in Aboriginal governments.
their opposition to including self- At times, Aboriginal peoples’
government in the constitution. goals get caught up in the broad
Most accepted Aboriginal peoples’ streams of issues the federal and
right to self-government. The issue provincial governments face. Each
for them was how self-government level of government has its own
would affect their own powers and mandate and set of priorities.
financial obligations. Without a Sometimes these different mandates
clear explanation, they refused to come to play at the self-government
include the right to self-government negotiating table, whether or not
in the constitutional amendments. they have anything to do with
In addition, the provincial Aboriginal peoples. This is the reason
governments feared they would not many Aboriginal leaders would
be involved in self-government prefer that Aboriginal peoples’ right
negotiations, preventing them from to self-government be recognized in
protecting their own political and the constitution. Such recognition
financial interests. This concern was would keep the governments
most evident in some western focussed on Aboriginal people’s
provinces, where Aboriginal peoples rights and would keep negotiations
form a larger proportion of the progressing.

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 103

 c
c
c

MODELS OF SELF-GOVERNMENT
Aboriginal leaders agree that their communities well-developed resources sometimes prefer
have the right to self-government and that a revised Indian Act that would keep their
self-government is highly important to their special status intact, along with more economic
communities’ future. Most also assert the and political freedom. Some groups want a
government’s fiduciary responsibilities — constitutional change that recognizes Aboriginal
meaning the government has an obligation peoples as Canada’s third founding nation.
to provide the resources needed to help Others want stronger treaty agreements. Most
communities achieve self-government. All models of Aboriginal self-government seek
agree that no single model of self-government to maintain some special rights within the
will work for all communities. The diversity of Canadian federal system.
cultures, histories, and current circumstances Métis communities with a land base have a
among First Nations, Métis, and Inuit stronger case for self-government than those
communities across the country will, to a without, simply because they can propose
large extent, determine their views on what self-government options that work within
self-government should look like. existing government systems. Urban Aboriginal
Where leaders sometimes disagree is peoples and others without a land base have
whether individual communities should wait different expectations for self-government.
for self-government until all or most are in a Aboriginal perspectives on self-government
position to achieve it, or whether communities are too diverse to list completely, but these
should move forward individually as soon as examples provide a sense of the complexity
they are able. This difference of opinion leads of the issues facing negotiators.
to different ideas about strategies for achieving Pages 104–105 present several models
self-government. of self-government from across the spectrum
For example, the priority of the Inuit in of hundreds or even thousands of options.
Nunavut, who are a majority of the population
in that territory, might be to increase the powers Third Order Government
of provincial and territorial governments in In this model, Aboriginal governments would form a
relation to the federal government. third order of government in Canadian federalism along-
side the federal and provincial governments. Powers
First Nations with land and many human of the Aboriginal governments would be detailed in the
and economic resources at their disposal often Constitution Act. Aboriginal governments would have
want to see the Indian Act and its history of the wide-ranging powers of provincial governments,
paternalism gone forever. First Nations without with some areas of federal jurisdiction. Some guarantees
for the rights of non-Aboriginal peoples living in areas
governed by Aboriginal governments would need to
be established.
Benefits: Enshrinement of self-government in the
constitution would mean it could not be removed or
changed by other levels of government. The change
in Aboriginal peoples’ status in Canada would have
symbolic meaning along with practical powers.
Aboriginal governments would be responsible to
their communities, not another level of government.
Drawbacks: Reaching agreement for this level of
change will be difficult and time consuming.
In November 2004, Enoapik Sageatok, an Elder from It could take decades. The federal and provincial
Iqaluit, lit the ceremonial qulliq to open the second governments dislike the unknown and would
session of Nunavut’s legislative assembly. Although likely insist on knowing the details of this model of
Nunavut has a public government, the Inuit majority in the government before inserting it into the constitution.
territory ensures that Nunavut’s government reflects Inuit This model might not be suitable for communities
culture and values. without significant resources.

104 CONTEMPORARY ISSUES

Public Government with broad powers over education, health, social services,
This model would be most appropriate for nations in resource development, employment, and environment.
which the majority of residents in the territory are The Indian Act no longer applied to Sechelt territory.
Aboriginal people. In this form of self-government, both Benefits: This kind of government can be created
Aboriginal and non-Aboriginal peoples could participate relatively quickly and tends to be favoured by the
equally in government. Public governments would likely federal government. It can achieve practical goals of
be similar to other forms of government in Canada, economic and social development. Precedents now
with some adaptations related to Aboriginal heritage. exist from which communities can begin negotiations.
Benefits: This form of government may be easier to Drawbacks: If another level of government delegates
achieve because it uses existing breakdowns of powers to the self-governing body through legislation,
government powers and systems of intergovern- the powers or rights can also be changed or taken
mental relations. Non-Aboriginal citizens do not need away. In addition, many bands are small and do
special rights guaranteed because all citizens in the not have sufficient resources to take on additional
public government’s territory have the same rights. responsibilities to administer programs and services.
Drawbacks: Few Aboriginal groups in the country would Symbolically, the model does not reflect an elevated
likely find that this model meets their needs. Nunavut position for Aboriginal peoples’ contributions to
is a current example of a public government. You will Canadian history.
learn more about how Nunavut’s government works
on pages 153–155. Community of Interest
Government
Municipal-Style Government This innovative model, proposed by the Royal Commission
A municipal-style Aboriginal government would receive on Aboriginal Peoples, would assist the growing number
self-governing powers through a change in legislation. of Aboriginal peoples living in urban centres to achieve
Several First Nations in Canada have opted for this route a measure of self-government. This form of government
and now have forms of community-based self-government. would likely include powers delegated from other
The first was in 1984, when the federal government Aboriginal governments or the provincial government.
passed legislation to give the Cree of Northern Quebec It would control areas such as education, health care,
a municipal form of government. economic development, and culture.
In 1986, Bill C–43, the Sechelt Indian Band Benefits: Urban residents from diverse Aboriginal
Self-Government Act, was passed to establish an “Indian backgrounds could achieve some degree of cultural
government district,” a form of municipal government and linguistic protection, as well as some economic
development assistance. It is one of the only
p REFLECTION self-government models that meets the needs
of diverse communities without a land base.
In a small group, prepare a list of issues
and questions that negotiators face in Drawbacks: The details would be difficult to arrange
among diverse Aboriginal interests and between
trying to establish self-governments.
Aboriginal and non-Aboriginal governments.
Some questions include
With many groups involved, funding this type of
• How will the government be funded? government would likely be a problem.
• To whom are Aboriginal leaders
accountable (their communities or
the federal government)? LOOKING BACK
• How is self-government guaranteed Create a diagram that shows as many
(through the constitution, Indian perspectives on self-government as you
Act, other legislation)? can. As a minimum, include federal
Once you have your list, answer the government, provincial and territorial
questions using a particular self-government governments, First Nations, Métis, Inuit,
model. You can find many Final Agreements, and non-Status Indian perspectives.
Agreements-in-Principle, and Framework Where do the various perspectives
Agreements at [Link]. agree? Where do they disagree and why?

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 105

 c
c
c
c
Chapter Three Review
c
c
c
c C h e c k Yo u r U n d e r s t a n d i n g 16. In what ways do First Nations view
c 1. Who is Elijah Harper and what treaties as fundamentally different
c was his role in the Canadian from the Indian Act? How does
c constitutional process? this impact their view of the rights
c in each?
c 2. Why was the right to self-
c government not included in 17. List at least five issues or questions
c the Constitution Act of 1982? that must be addressed in self-
c
c 3. What rights were guaranteed in government negotiations. Explain
c the constitution? how each issue is significant to the
c negotiation participants (Aboriginal
c 4. What specific clauses refer to organizations and/or communities,
c Aboriginal peoples? federal and provincial governments).
c
c 5. Why is the constitution particularly 18. In a chart, summarize the roles
c significant for Métis and Inuit of Aboriginal organizations, the
c peoples?
c federal government, and provincial
c 6. Why do First Nations and Inuit governments in self-government
c communities consider self- negotiations.
c government to be an inherent right?
c 19. Name at least one contemporary
c 7. Name five national Aboriginal Aboriginal political leader and
c political organizations and explain describe how his or her organization
c who each group represents. is working for Aboriginal rights.
c
c In your opinion, is this leader and
8. What is the difference between
c his or her group doing an effective
Aboriginal title and Aboriginal rights?
c job? Give reasons for your answer.
c 9. Explain how each of the following
c 20. What is Crown land?
are significant in terms of Aboriginal
c title: the Natural Resources Transfer 21. How did the Natural Resources
c
c Agreements, the numbered treaties, Transfer Agreements affect First
c and the Manitoba Act. Nations land rights?
c
c 10. Using two specific examples,
explain how the Supreme Court Speaking and Listening
c
c has affected Aboriginal rights. 22. Find a story from the oral tradition
c of a First Nation from your area
c 11. What was the Royal Commission that could be used to support an
c on Aboriginal Peoples and what is Aboriginal rights claim, such as
c its significance for Aboriginal rights? the right to hunt or fish.
c
c 12. What is the difference between (a) Learn the story and practise it
c inherent rights and the Aboriginal until you can tell it in your own
c rights recognized by the
c words without referring to notes.
Constitution Act of 1982?
c (b) Working with a partner, tell each
c 13. How are land rights related to other other your stories. Afterwards,
c rights, such as the right to self-
c the listener’s job is to explain
c government? Why might the how the story supports a rights
c second be dependent on the first? claim and to describe what kind
c 14. What kinds of oral history has the of claim it might be used for.
c
c Supreme Court recognized? Name (c) How does oral (traditional)
c at least five types of evidence an teaching compare to
c Aboriginal group might offer to contemporary forms of
c establish its claim to rights or title.
c teaching and instruction? Work
c 15. Name two communities that have a with your partner to describe
c form of self-government today and the differences and similarities
c list characteristics that make them as well as you can.
c
c self-governing.
106 CONTEMPORARY ISSUES
23. Tell a story to your class from your Going Further
own life and try to bring it to life so 25. How would self-government
that students will remember it. After negotiations be different today if
each story, listeners should recount the right to self-government had
what they remember about the been enshrined in the constitution?
story on a piece of paper and hand Would more communities have self-
it in to the storyteller. Examine how government? Explain your answer.
well students understood your 26. Instead of working for Aboriginal
story. What does this tell you about rights through an Aboriginal political
the skill needed to transmit oral organization, some Aboriginal
history so that other people will people choose to participate in
recall it accurately? In 1958, Kainai First
Canadian parliament. Two such Nation member James
24. Hold a mock self-government people — James Gladstone and Gladstone became the
negotiation. Divide your class into Ethel Blondin — are shown on first Aboriginal Senator
groups that represent the federal this page. Research the names in Canada’s parliament.
government, provincial or territorial of all Aboriginal peoples who have He was instrumental in
government, and a First Nations, ever served in parliament. What helping Aboriginal people
Métis, or Inuit community or constituents did they represent? receive the right to vote
organization. The type of Aboriginal How can Aboriginal people make in Canadian elections.
group you choose will determine a contribution to the Canadian
the kind of negotiation that will political system? How can they
take place. For example, is the make a contribution to their own
discussion about increasing a single communities through this political
nation’s powers or inserting a clause system? How are their contributions
into the constitution? Your teacher different from people who work
can help you set the class focus. through Aboriginal political
Each group should research its organizations? What goals are
position thoroughly. Consider the likely the same?
demands other groups will likely
make, and be prepared to be
flexible on your own demands. LOOKING BACK
As a group, reach consensus about
Look back to the photograph of
what rights or powers you most
want to achieve or protect. the mace on page 77. Imagine
that you have been assigned In 1988, the Honourable
Ethel Blondin-Andrew
the job of creating a mace for
became the first
a First Nations, Métis, or Inuit Aboriginal woman to
community that has just signed be elected to the House
a self-government agreement. of Commons. She was
Design your mace on paper with elected as a Member
an explanation of the symbolism of Parliament for the
you plan to use. Build a model Western Arctic and was
of the mace. re-elected for a fifth
term in 2004.

ABORIGINAL RIGHTS AND SELF-GOVERNMENT 107