Towards A Detente With History


Lubicon Lake Indian Nation
Little Buffalo Lake, AB
403-629-3945
FAX: 403-629-3939

Mailing address:
3536 - 106 Street
Edmonton, AB T6J 1A4
403-436-5652
FAX: 403-437-0719



June 20, 1996



Attached for your information is a copy of a paper on the nature of Canada entitled "Toward a Detente with History". It appeared in the tall 1995 edition of the "International Journal of Canadian Studies".

Although the language used in the paper is a little highfalutin, and the Charlottetown Accord illustrates how things work in Canada rather than representing some kind of inexplicable anomaly, the analysis is acute and puts the Lubicon struggle in context.


Joyce A. Green



Towards A Detente With History*

Confronting Canada's Colonial Legacy





Abstract



This paper suggests that Canada is an evolving colonial entity created by imperial and colonial interests for the express purpose of extending and consolidating those interests at the expense of the indigenous peoples and their contemporary descendants. The state has established colonial relationships of a racist, exploitative and coercive nature, which are interpreted by the dominant settler population who styles the dominated as Other. A synergy of cultural myth, partial historical narratives, and judicial and political institutions proclaim and defend this mythology-cloaked unhyphenated colonialism. The example of the perpetual federal policy of extinguishment of Aboriginal and treaty rights demonstrates the continuing operation of the processes alleged above, in the legitimation of land theft and indigenous oppression. Finally, the paper argues that Canada can only move to post-coloniality through explicit acknowledgement of its origins and through constitutional and political consequences that will flow from acknowledging such responsibility.





Résumé



Cet article laisse entendre que le Canada est une entité coloniale en évolution, engendrée par les intérêts impériaux et coloniaux expressément dans le but d'étendre et de consolider ces intérêts au détriment des populations autochtones et de leurs descendants contemporains. L'État a établi des liens coloniaux de nature raciste, exploitante et coercitive, définis par la population dominante d'origine, qui qualifie le peuple dominé d' <<autre>>. Une synergie de mythes culturels, de discours historiques fragmentaires et d'institutions judiciaires et politiques affirment et défendent ce colonialisme pur et mythique. L'exemple des politiques fédérales visant constamment à annihiler les droits ancestraux et de traités démontre bien la présence continue des procédés avancés ci-dessus, aux fins de légitimation de l'appropriation des terres et de l'oppression des peuples autochtones. Enfin, l'article avance que le Canada ne peut passer à la postcolonialité qu'en reconnaissant explicitement ses origines et en acceptant les conséquences constitutionnelles et politiques qui découleront de la reconnaissance de pareille responsabilité.






This essay argues that Canada is an evolving colonial entity created by colonial interests for the express purpose of extending and consolidating those interests at the expense of the indigenous peoples and their contemporary descendants. Canada has established racist, exploitative and coercive colonial relationships, interpreted by the dominant, in which the dominated are styled as Other. These relationships are perpetuated by a mythologized history and by judicial and political institutions that proclaim and defend this mythology-cloaked, un-hyphenated colonialism. This paper begins by examining the foundations of colonial myth-making before exploring the perpetual federal policy of extinguishment of Aboriginal and treaty rights to show the continuing operation of the processes alleged above. Finally, it argues that Canada can not escape its colonial past through the passage of time. Only explicit acknowledgement of its origins and the constitutional and political consequences of acknowledging such responsibility can achieve a "detente with history" (1) and a genuinely post-colonial future.



All historical beginnings are contingent and somewhat arbitrary. This paper takes Canada in its contemporary form to "begin" in 1867, though its pre-existence as provinces and colonies, and the activities of imperially-mandated enterprises, are precisely what locates it as an imperial and colonial endeavour then and now. This paper does not intend to examine the myriad oppressions that have followed the imperialist adventure in Turtle Island (the name by which North America was known to some Aboriginal nations). For example, it does not address the oppression of the Acadians nor of the Quebecois by the English, not because those matters are unimportant, but because this paper's concern is to trace the continuity of imperial and colonial activity in subordinating Aboriginal peoples and in denying the underlying economic motives and the racist justifications for such subordination. In denying responsibility for colonialism's consequences, the state cannot adequately engage with Aboriginal resistance, manifested in contestation of state legitimacy and in a political search for constitutional, policy and physical accommodation by the colonial state of its subordinated and unwilling hosts. With the primary focus on the continuity of this phenomenon and its consequences, the concurrent history of Aboriginal resistance is not central to this paper.



While the term "colonialism" is used throughout, the author accepts the ontological relation of colonialism to imperialism, grounded in the emergence and expansion of the global phase of capitalism.(2) Arguments are premised on the view (following, for example, Edward Said (3) and James Blaut (4)) that imperialism and colonialism are economically motivated, but also culturally embedded processes which create and also suppress knowledge. In Said's words, "Both are supported and perhaps even impelled by impressive ideological formations that include notions that certain territories and people require and beseech domination, as well as forms of knowledge affiliated with domination .... " (5) In this sense "H"istory as the dominant narrative is being contested here.



Myth-making Our History and Future



History, as the apocryphal saying goes, is written by the victors. We come to know ourselves through the selective, collective construction of significant events that form a unifying mythology - unifying for those who are included; alienating for those who are excluded. The events that are designated as memorable and their interpretation through the lens of "H"istory shape our collective consciousness.



In Canada, "conventional" history (history which underpins our social and political conventions) has distorted our collective consciousness, overstating certain contributions while making others invisible. However, the "H"istorical record is seldom acknowledged to be contingent and subjective.



Myth-making satisfies those "who do not know, or choose not to know" (6) the fuller historical record, but it does not provide the foundation of information on which to build policy responses to contemporary crises rooted in the colonial past. These policies, crafted to meet colonial but not indigenous realities, have ranged from pernicious to inadequate and inappropriate. Their failure and the problems they have created contribute to the contemporary Canadian angst (7) about the future shape and complexion of the nation state, as people raised on myths struggle to understand both indigenous alienation and claims of Aboriginal and treaty rights.



Albert Memmi identifies the origins of this colonial angst. The original and continuing economic motives for colonial undertakings are primary (8) and colonial immigrants embark(ed) on the dangers and mysteries of a "new" life because of a desire for profit which could not be expected by enterprise at "home." This profit is disproportionately large because "it is wrested from others," and the result is the illegitimate privilege of the usurper. (9) However relative this privilege, it is nonetheless consistent in accruing to the European immigrant qua European at the expense of the colonized "native," (10) creating an inequitable relationship grounded in race privilege. The colonial administration-government creates bureaucratic, legislative and educative filters to recruit its own kind and to enforce rules that guarantee its own interests. The privileged position of colonizers relative to "natives," together with the rationales justifying it, create an insurmountable divide between the populations. The "two solitudes" are those of every colonizer and colonized set of societies.



Colonialism depends on a constructed, instrumental racism for its moral legitimation. Incommensurability between colonizer and colonized is invoked to demonstrate the superior nature of the colonizer and the inevitability of the new order. Memmi writes:



Colonial racism is built from three major ideological components: one, the gulf between the culture of the colonist and the colonized; two, the exploitation of these differences for the benefit of the colonialist; three, the use of these supposed differences as standards of absolute fact....RACISM APPEARS THEN, NOT AS AN INCIDENTAL DETAIL, BUT AS A CONSUBSTANTIAL PART OF COLONIALISM. (11) (emphasis added)



Justifications are created: the "natives" are lazy, simple, wild, inept, lascivious or immoral. (12) Denigration of culture, politics, spirituality and capacity for moral and intellectual engagement constructs the Other in such as way as to legitimize the colonizer's actions. They are the repository of vice and fault, contrasted with the rectitude and competence of colonial society, in a dualistic construction of "native" as Other. L.F.S. Upton captures how this was cast in what would become Canada: "(It was thought that Indian) inferiority was cultural and could be remedied by training in civilized ways." (13) Trough the process that Blaut calls "shaping knowledge into theories... useful for colonialism," (14) the federal government adopted policy objectives of protection, civilization and assimilation, which it pursued in the containment fields of reserves and bureaucratized through the churches and branches of the civil service. All this was sustained by ideological formations supporting the guided development of indigenous peoples by the assumably superior culture, with the simultaneous benefit of neutralizing resistance to colonial expansion. (15)



Significantly, the existence of Aboriginal nations prior to the configuration of the contemporary state Canada in 1867 is romanticized, homogenized and made irrelevant by historico-mythology to the "real" history which followed the establishment of European populations and politics in Canada. This mythical rendering of Aboriginal nations is one way in which Canada has avoided recognizing less savory portions of its genesis, and contributes to its "insistence on justifying conquest". (16) As Michael Asch puts it, "Canadian state ideology masks assumptions about our occupation of Canada that have racial and colonial overtones." (17) Where acknowledged, colonizers gloss over colonial land theft and physical and legislative brutality as evils necessary for the greater colonial project. (18) Canadians know only "the school-book histories ... (that) are but a shortened statement of European consciousness in North America." (19) The selective construction of history into a story celebrating "founding nations" and "settlement" is what Barbara Ransby calls "a fundamentally racist formulation" justifying conquest, ethnocide and land theft. (20) A news item on CBC Radio recently underlined this point. The event of Edmonton's 200th anniversary was noted, accompanied by the radio host's wonder at what it must have been like for the "first people" who came to this impliedly vacant land, the settlers for whom Canada advertized in England, promising free land and easy wealth as inducements to immigration. (21)



This construction of "H"istory is "used to legitimize a certain power structure." (22) Canadian history, together with law and policy, have erected what Said calls "the consolidated walls of denial" of "imperialist ideology and colonialist practice" (23) that are the origins of this state.



The way in which Aboriginal nations have been made Other is typical of colonial endeavours, and has served to both justify colonial actions and to deny the historical and contemporary completeness of Aboriginal existence in Canada. Colonialism's project, in Michael Stevenson's words, "was, and still is, to lay waste a people and destroy their culture in order to undermine the integrity of their existence and appropriate their riches ." (24) It is pursued via "total war" (25) legitimized not only through racist construction but through creation of language celebrating colonial identities while constructing the colonized as the antithesis of human decency and development, (26) thereby establishing a justification for their physical, historical and cultural annihilation. (27) This language "becomes the basis for the forming of national identity and for providing the state with an organising ideology" whose racist, imperialist concepts "become institutionalised as the democratic nation-state" in which hatred of the Other is bureaucratized. (28)



That is, racism becomes part of the structural base of the state, permeating the cultural life of the dominant society both by its exclusive narrative of dominant experience and mythology, and by its stereotypical rendering of the "Other" as peripheral and unidimensional. For example, the use of the term "Indian" is part of the Othering in the colonial arsenal; it bears no relation to what Aboriginal nations called themselves, suggests a false unity and homogeneous nature among these disparate nations, and presents a linguistically plausible logic for the subsequent unilateral homogeneous "Indian" policy adopted by Canada towards Aboriginal peoples.



Colonial land theft was legitimized by the construction of paradigms explaining Aboriginal social, political and cultural development as deficient (now, "different") therefore making "them" incapable of holding sovereignty or land or of resisting the civilizing, modernizing impulse of colonial domination. (29) Canadian law respecting the Crown's contemporary legitimacy and jurisdiction has been crafted with racial difference encoded in it, in a dualistic construction "providing the law with a profile of its own identity" and with its mandate to bring order to the orderless and civilisation in the service of progress. (30) It is also an authoritative mechanism "enforcing the validity of Western reality," buttressing the mainstream's self-identity and evolutionary importance. (31)



Through "the archetypal event of colonisation," (32) discovery, laws regarding the origins and nature of title to land become constructed in such a way as to void Aboriginal claims to land and to validate the title of the Crown. Colonial law has employed such risible fictions as "discovery" to acquire (someone else's) land; as the notion of terra nullius (Blaut's "myth of emptiness," (33)), suggesting the land claimed by the Crown was essentially empty, or at least, contained no viable society with a pre-eminent sovereignty; and of terra incognita, suggesting a sovereign could claim underlying title to unknown lands. This land becomes "settled" by "settlers" who import the colonial law with them, (34) suggesting both untamed, unoccupied wilderness surrendering to civilization, and concealing whose land it is that was "settled." Through the power of its definitional language and law, the colonial nation state constructs an authoritative filter for "the exclusion of races and cultures and (creates) a vehicle for the West's cultural hegemony." (35)



The dominant narrative of Canadian beginnings, from heroic pioneers taming uncharted wilderness to contemporary sociopolitical consequences, assumes the validity of certain historical beginnings and of legitimacy in deeply embedded cultural formations. In this way it takes on the lustre of common sense, of what everyone "knows" about the origins and nature of society. This structured reproduction of selective knowledge ensures a hegemonic social consciousness maintained by culturally diffused mechanisms so that, in Said's words:



the whole cultural corpus retains its essentially imperial identity and its direction ... The internalization of norms used in cultural discourse, the rules to follow when statements are made, the "history" that is made official as opposed to the history that is not: all of these of course are ways to regulate public discussion in all societies. (36)





Trough scholarship, law, politics, policy and culture, the dominant narrative reproduces itself while legitimizing and reifying its origins. At the root of this selective history is the colonial denial of land theft simplified by the fortuitous vulnerability of Aboriginal populations to common European diseases, which decimated indigenous populations (37) and the subsequent attempts to legitimize or erase that theft. As a choice contemporary example of this, Asch examines Canada's 1989 arguments (38) against the Gitksan-Wet'suwet'en land claim in Delgamuukw (39) and concludes that "Canada doubts that the Gitskan were ever civilized enough to have sovereignty; but that ... if they did have it, the mere assertion of sovereignty by Great Britain was enough to extinguish it." (40) The Court concurred, stating that, in relation to colonial paramountcy, "there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vest in the Crown." (41)



Given that the colonial entity has never doubted its paramount claim at the moment it chose to exercise it, its laws reflect its confidence and its justifications. The outcome in Delgamuukw and other cases in which land title is contested between indigenous and colonial authorities is preordained by the fact that the law, and the courts that interpret and administer such law, are colonial emanations and constructs. They are the rules of the ruler, interpreted by the ruler through the lens of selective, racist history. They construct the "settlement thesis" (42) premised on assumptions that colonizing populations were inherently superior to the indigenous as measured on a quasi-evolutionary linear progression of human development, and that the more "advanced" society is entitled to claim political supremacy which benefits the "primitive" societies with accelerated development. Asch notes that the settlement thesis is highly compatible with "universalistic ideology" (43) which requires minority peoples to submit to "the domination of the institutions of the majority population." The settlement thesis asserts that "history begins with contact," while Canada's universalistic ideology legitimizes the denial of the inherent rights of internal minority populations by the colonizing majority. (44)

Two separate but related items on CBC Radio demonstrate how appropriation of land and resistance to colonialism continue today. On Morningside, Peter Gzowski interviewed three Aboriginal people about the shooting of three apparently unarmed Aboriginal protesters at Ipperwash on September 6, 1995 and about the concurrent standoff at Gustafsen Lake. All three asserted that contestation of land and history is fundamental to understanding and resolving these kinds of conflicts. Later in the day, Vicky Gabereau interviewed a media personality from Montreal who gushed about the desirability of Canada having a population of 75 million: "Why not? We've got the land." (45) Indeed.



The denial of Canada's origins in colonial enterprises prevents scholars and legislators from grappling with the consequences of that initial relationship. This denial takes the form of legal acrobatics by the judiciary to deny treaty status to "Indian" treaties (the legal concept of sui generis establishes that Aboriginal treaties are agreements which are neither created nor terminated according to the rules of international law) (46) to deny sovereignty in historically sovereign Aboriginal nations; and so to deny contemporary Aboriginal claims for restitution (for example, Chief Justice McEachern of the B.C. Supreme Court asserted that pre-colonial times were devoid of any redeeming characteristic for the Gitskan and Wet'suwet'en: their lives were "nasty. brutish and short"). (47)



The obscured reality of Canada's colonial foundations contributes to a contemporary Canadian psychosis as we struggle to account for and deal with the consequences of that same colonialism while generally denying its reality. This illness is evident in the repetition of historical accounts that are partial and exclusionary; in the carefully maintained incomprehension at indigenous nations' resistance to assimilation and struggle for self-determination; in policies that purport to respond to indigenous problems while failing to conceptualize the role of settler populations in creating or solving those problems. No reconciliation will grow from such dishonest and partial remedies.



Treating the Canadian psychosis means abandoning the frontier mythology, facing our past, and collectively creating equitable and restitutionary bases for our common future. Oka, Ipperwash and Gustafsen Lake (48) are perhaps the most publicized of recent confrontations between the colonized and the colonizer, but there are similar situations across Canada. Cast by the media and policy-makers as ahistorical incidences of civil disobedience, social breakdown and lawlessness, Aboriginal participants view them as the inevitable consequences of an historically rooted struggle against external domination, and for sovereignty, land claims and political jurisdiction.



A Colonial Indian Policy



While an exhaustive historical documentation of the initial contact of European interests seeking wealth through mercantilism and then capitalism is beyond the purview of this essay, it is necessary to situate the neophyte nation of Canada in 1867 within the interplay of burgeoning capitalism and emergent and oppositional nationalism, reactive to the threat from American imperialism. (49) Confederation was a political arrangement to accommodate powerful economic interests represented by an elite segment of the colonial population: Frank Underhill's "triple alliance of federal government, Conservative party, and big-business interests: government of the people, by lawyers, for big business." (50) That is, the state is grounded in race and class (and gender) privilege. (51)

Following Confederation in 1867, the federal government moved to shape the newly united and generally self-interested provinces into a cohesive economic, social and political project. This effort crystallized in the National Policy, formally instituted in 1878 (52) by then-Prime Minister John A. Macdonald. It was designed to guarantee the conditions for the development of indigenous capital: protected markets, cost-effective (that is, government-subsidized) transportation of resources and goods, and the creation of a population willing and able to produce and consume that on which capital investment depended. The National Policy illustrates how partial the historical record is, and how well law and politics have converged to erase some while promoting other contributions.



The National Policy has generally been held to have three components: the building of a transcontinental railway, a protective tariff on imports and western settlement. The railway would fulfil the promise that had lured B.C. into Confederation; it would transport eastern goods to the west, and western raw materials to the factories of Central Canada and the export docks east and west. The tariff was necessary to make the railway economically viable, by making it as cheap or cheaper to transport goods across Canada instead of to geographically closer American markets. The settlement of western Canada (with approved, i.e. white immigrant stock) would provide labour for the needed raw materials and a market for eastern goods; it would populate the land and serve notice to the aggressive and acquisitive Americans that Canada could exercise sovereignty across the country.

The National Policy could not have been conceived or implemented without some official, high-level political consideration of the fact that the lands in question were controlled by Aboriginal nations, including the Metis. Tle railway would go through Aboriginal lands; the consortium building the railway would be given Aboriginal land not only for right-of-way but as payment for their endeavour; and the settlers would be given Aboriginal land to homestead. Edwin Black notes that "A fixed resolution of the Conservative administration was that nothing must be allowed to hinder the govemment's encouragement of the Canadian Pacific Railway which was a vital instrument of the Conservative national economic policy." (53)



The National policy was dependent upon land: land for the consortium of capitalists that eventually built the railway; land for the immigrants; and land over which Macdonald's government intended to exert political jurisdiction. The lands in question were not within the de facto jurisdiction of Ottawa, and the undeclared but absolutely central Part Four of the National Policy was implemented to acquire them. Conceptualized and implemented to clear the way for unobstructed railway building, resource exploitation, and settlement, this took the form of the western treaty-making endeavour, the reserve system administered under the Indian Acts, and the military conquest, land scrip chicanery and dispersal of the Metis. Further, this policy was only pursued where colonial and Aboriginal interests collided. Where Aboriginal nations or parts of nations (bands) did not appear to be of immediate concern in this regard, they were, for the most part, ignored. For example, the Lubicon Lake Cree band in northern Alberta was omitted from Treaty 8. (54)



It was expected that this process would culminate in the elimination of culturally distinct populations of "Indians" and their assimilation into European society. The army, the North-West Mounted Police and then the Royal Canadian Mounted Police and the Department of Indian Affairs, under its various incarnations within the federal bureaucracy, implemented the policy of assimilation by destroying Aboriginal political systems and social organization, religion and the remnants of once-viable economies. (55) Indians were to be forced into the capitalist vision of modernity, transformed from collective societies based on communalism into an atomized society based on individualism and private property concepts. Together with Christianity and education, this process, through which "(t)he colonized seems condemned to lose his memory," (56) would make assimilation inevitable. (57)

The Crown's Historical Duplicity



Treaty-making was presented as a compulsory benefit to the original signators: compulsory, in that circumstances made it clear that not negotiating would be worse than signing the treaty; yet beneficial in that promises and representations suggested that the colonizers had the best interests of Aboriginal nations at heart. The Crown's military and police presence indicated coercion, while the language used was honeyed with symbolic representations of peace, mutuality, security and well-being for all time. The application of the first post-Confederation "Indian Act" (1869) was never mentioned. Rather, assurances of continued Aboriginal autonomy were made, together with promises of material "gifts." Nor were Aboriginal negotiators entirely naive. Many expressed concerns and scepticism about the govemment's motives and scruples. (58)



The Queen, who never actually participated in treaty-making, was represented by her commissioners as a deified parent; aware of and desirous of the best interests of Indians; munificent, all-knowing and trustworthy. The language shows how this image was manufactured:

"your Great Mother, the Queen" ... "her hand is also open to reward the good man everywhere in her Dominions"; "your great mother wishes the good of all races ... wishes her red children to be happy ... to live in comfort ... adopt the habits of the whites ... She thinks this would be the best thing for her red children ... But the Queen ... has no idea of compelling you to do so. ... Your Great Mother ... will lay aside for you lots' of land to be used by you and your children forever ... as long as the sun shall shine, there shall be no Indian who has not a place that he can call his home, where he can go and pitch his camp...... (59)



This relationship was extended to representatives of the Crown; for example, in reference to Indian Commissioner Wemyss Simpson: "when you hear his voice you are listening to your Great Mother the Queen." (60) Consequently, it is not surprising that Simpson was able to write that "The Indians ... have a firm belief in the honour and integrity of Her Majesty's representatives, and are fully impressed with the idea that the amelioration of their present condition is one of the objects of Her Majesty in making these treaties." (61)



Representatives of the Crown promised that there would be no enforced change of lifestyle and of rights:





When you have made your treaty you will still be free to hunt over much of the land included in the treaty. Much of it is rocky and unfit for cultivation, much of it that is wooded is beyond the places where the white man will require to go, at all events for some time to come. Till these lands are needed for use you will be free to hunt over them, and make all the use of them which you have made in the past. But when lands are needed... you must not go on them any more. There will still be plenty of land that is neither tilled nor occupied where you can go and roam and hunt as you have always done... (62)



It may be a long time before the other lands are wanted, and in the meantime you will be permitted to fish and hunt over them. (63)



I do not want to interfere with your hunting and fishing ... pursue it through the country, as you have heretofore done... (64)



I want the Indians to understand that all that has been offered is a gift, and they still have the same mode of living as before. (65)



The Govemment will not interfere with the lndian's daily life; they will not bind him. (66)



But the colonial objective of obtaining "cede and surrender" agreements from the "Indians" remained paramount. Alexander Morris, writing of the conclusion of Treaties One and Two, declared: "Eventually on the 3rd of August, 1871, a treaty was concluded, ITS PRINCIPAL FEATURES BEING THE RELINQUISHMENT TO HER MAJESTY OF THE INDIAN TITLE" (emphasis added). (67)

Numerous comments recorded by Morris indicate that, contrary to colonial legal assertions that Aboriginal title was not landholding proper and was merely personal and usufructory in nature, (68) Aboriginal nations insisted that their title be recognized:



(T)hey wished to have two-thirds of the Province as a reserve (69)...

excited on the subject of their lands being occupied without attention being first given to their claims for compensation; they were unwilling to allow the settlers the free use of the country... the quantity of land demanded for each band amounted to about three townships per Indian (70) ...



(Indians) dissatisfied at the use of the waters, which they considered theirs, having been taken without compensation ... (71)



and water, wood claimed by Indians in negotiations and compensation for whites' use of it requested (72)



Mawedopenais declared: "All this is our property where you have come." (73)



"(W)e have a rich country... the white man has robbed us of our riches." (74)



David Laird, who negotiated for Canada in Treaty Seven, noted that "The Blackfeet are extremely jealous of what they consider their country, and have never allowed any white men, Half-breeds, or Crees to remain in it for any length of time." (75)



Further, Aboriginal negotiators protested the use of their lands and resources by invading settlers and by the Hudson's Bay Company (which had, of course, a dispensation from the British Crown to do precisely that) and asserted primacy over the H.B.C. claims to land and resources. (76) The Gambler, a negotiator for the Qu'Appelle Treaty, charged that "the Company has stolen our land." (77) In other negotiations, Sweet Grass, a Cree, declared: "We heard our lands were sold and we did not like it; we don't want to sell our lands; it is our property, and no one has a right to sell them." (78) And Morris revealed the duplicity of the government: "Furthermore, the Indians seem to have false ideas of the meaning of a reserve. They have been led to suppose that large tracts of ground were to be set aside for them... (79)



Nor were the colonial agents content to simply obtain the legal fiction of land cessions. Consistent with the needs of the colonial government, they endeavoured to instruct the various nations on political development. The Indian Act-preferred model of one male chief who speaks for all was required for entrance into treaty. "I thought it advisable to require that the several bands of Indians should select such Chiefs as they thought proper, and present these men as their authorised Chiefs, before anything was said as to the terms of a treaty" wrote Wemyss Simpson.(80) Not content to simply suggest political change, colonial agents actively engaged in it. Morris wrote "The difficulties are the inability of the Indians to select a high or principal chief from amongst themselves ..." (81) and "Yellow Quill was appointed chief by the Hudson's Bay Company ..." and, despite the objections from the people concerned that they had another man in mind, Morris made it clear that "Yellow Quill must remain a chief." (82) This political interference happened repeatedly: "I then called on the White Mud River Indians to select a Chief and one Councillor... (1 did) request them ... to select a Chief and Councillors." (83)



A Seamless Web of Colonial Policy



Generations of critical policy reviews by Royal Commissions and Parliamentary Committees (84) considering indigenous peoples in Canada have been ignored by successive governments. The state continues to develop policies grounded in the foundational myths of the legitimacy of colonial and contemporary appropriation of land and resources, despite evidence of prior claims by indigenous nations. Not surprisingly, these policies have failed to create equity or stability.



The federal government's comprehensive claims policy of 1973 introduced the euphemism of "exchange" for "extinguishment." In 1975, the James Bay and Northern Quebec Agreement became the first treaty concluded under the new policy. This bold new initiative "incorporates almost verbatim the wording of the blanket extinguishment clauses of the numbered treaties," that is, that Aboriginal parties "cede, release, surrender and convey all their native claims, rights, titles and interests, whatever they may be, in and to land in the Territory and in Quebec." (85) The Northeastern Quebec Agreement of 1978 and the Inuvialuit Final Agreement of 1984 contain similar extinguishment clauses.



The 1985 federal Task Force (Coolican) Report entitled Living Treaties, Lasting Agreements (86) recommended that extinguishment be abandoned as the necessary condition for claims settlement. (87) The report suggested that the federal-Indian relationship has been frustrated by the federal insistence on its own legal view of the world, and its adherence to extinguishment as a condition of settlements. By way of alternatives to extinguishment, the report called for a policy whose first characteristic is that "it must be acceptable to the aboriginal people concerned." (88)



The Coolican Report suggested that, despite the 1982 constitutional amendments "recognising and affirming existing aboriginal and treaty rights," (89) Canada's intent to eliminate legal vestiges of Aboriginal claims has increased in recent times, rather than decreased.



(T)here has been a gradual but distinct change in the way in which aboriginal title has been extinguished in Canada. Before Confederation, it was considered sufficient if specific rights were surrendered voluntarily by the Indian peoples. The numbered treaties introduced the complete surrender ... [which] effected an extinguishment of rights. In the modem agreements, an additional mechanism has been included, namely, the blanket extinguishment of all rights by the Crown, through a legislated clause. (90)



To date, the state has indicated a preference for "business as usual" in Aboriginal policy, in particular, dissembling on the question of outstanding land claims and treaty obligations. In the Trudeau government's 1969 White Paper, (91) the government suggested the speedy termination of reserves and of separate status, preferring to blame reserves and status rather than colonial land theft for Indian poverty and marginalisation, and called the treaties "anomalies" unworthy of the name. Instead of separate status for Indians and Indian lands, the White Paper advocated assimilation into the Canadian mainstream. It was rejected by Indians across Canada and, indeed, served as a useful catalyst in Indian political mobilization.



From the White Paper's outright rejection of the validity of the treaties to the present federal policy of recognizing rights in order to extinguish them, there has been an implicit refusal to review the indigenous-Canadian relationships. (92) Given the lack of federal response to the Coolican Report's recommendations, one can be forgiven for doubting that the federal government will heed the pending Royal Commission on Aboriginal Peoples final report, which may well recommend substantial structural and policy developments for Aboriginal inclusion.



The 1992 Charlottetown Accord contained proposals which had the potential to transform indigenous-Canadian relations in that they arguably provided for a negotiated entrance into Confederation, together with affirmation of the inherent right of governance, constitutional status, guaranteed representation in Parliament, and a substantial measure of constitutionally recognized jurisdiction within the federal structure. (93)



However, the Accord is only a might-have-been now, and discussion of the many reasons for its failure with the dominant and Aboriginal populations are beyond the scope of this paper. (94) Suffice it to say that the Charlottetown potential is not being reflected in current policy initiatives emanating from DIAND. The current DIAND package (95) is less than Charlottetown by a long shot. Quasi-provincial status, as a third order of government within the federal structure, is not

contemplated. Rather, the proposal advocates a quasi-municipal status, a delegation of a measure of powers from the existing constitutional orders of government, who continue to hold the full measure of constitutional power. And the federal government continues to dangle the carrot of extinguishment, now framed as the mechanism creating "clarity." As the Royal Commission on Aboriginal Peoples (RCAP) observed, "clarity is achieved by a relatively straightforward clause indicating that certain or all rights associated with Aboriginal title are extinguished." (96) While the RCAP views clarity and certainty as valid objectives, it suggests that extinguishment is a legally and conceptually flawed tool with which to accomplish these objectives. (97)



Not all observers have been so critical. "Learning from the painful lessons of Meech Lake and Charlottetown, the government has decided to sign separate agreements with bands and communities as soon as they are prepared to accept new responsibility," proclaimed the Edmonton Journal. (98) But it is not responsibility that "bands and communities" must accept, but a new relationship in which "bands and communities" function as creatures of the federal, and perhaps also of the provincial, governments. It is the re-presentation of subordinate status, through the co-opted language of self-government."



Despite the Coolican Report's recommendations that extinguishment be abandoned, the Chretien government and Department of Northern and Indian Affairs Minister John Irwin reaffirmed it in 1993 in Federal Policy for the Settlement of native Claims. (99) So-called "self-government" models advanced by the federal government via DIAND continue the century-old practice of dictating the form, style and parameters of "Indian" government. These have the effect of stripping inherent political agency from "bands" and rendering them mere administrators of DIAND policies by way of delegation of federal programs and services.



The current federal land claims process continues to frame the parameters of possibility in historical mythology: in the underlying, pre-existing and pre-eminent title of the Crown and in the common law notions flowing from that fiction; and in the generally implicit doctrine of parliamentary sovereignty, the application of which legitimizes any legislative initiative purporting to limit or eliminate Aboriginal rights or land interest. Federal concern with comprehensive land claims is instrumental: it will recognize rights so that they may be extinguished and it will negotiate settlements only on that condition. (100) The Crown is deemed to have a pre-eminent title by virtue of its pre-1967 existence made manifest in "the colonies."



Within this conceptual framework, Aboriginal rights, including political rights and sovereignty in relation to land, exist subject to the pleasure of the Crown or its agent, Parliament. The federal claims settlement policy premised on the objective of extinguishment is entirely consistent with this framework. Any critique of the policy which challenges its basic premises is attacked because it deviates from the legal and philosophical orthodoxy underpinning Canada's genesis and continuing legitimacy. Indeed, such a critique, if taken seriously, has the potential to reveal that Canada is, after all, merely the result of opportunistic imperialism and successful land theft.



The federal government "policy for the settlement of native claims" statement of March 1993 (101) clearly shows that, for the federal government, Aboriginal rights and title derive from British common law, and that policy has been "closely linked to court decisions." The policy paper cites legal precedent (102) as establishing the point in law (the rules of the ruler) that "the exercise of Aboriginal rights could be regulated by government." (103) Rights are deemed to be sui generis and of the common law. (104) The policy paper notes that "Aboriginal peoples and governments often come to the table with fundamentally different conceptions of the nature of Aboriginal rights and the form which the final settlement should take." (105) Inevitably, government conceptions determine the parameters of political possibility.



Of the historical treaties, the policy paper asserts, "In exchange for certain rights and benefits, such as the receipt of reserve lands, Indian groups in parts of Canada have SURRENDERED THEIR CLAIMS TO ABORIGINAL RIGHTS," (106) (emphasis added). The language of "exchange" as a euphemism for extinguishment continues: discussing the 1986 revised Comprehensive Claims Policy "Exchange of Rights," DIAND policy in 1993 asserts:



It is often stated that the federal government is seeking to end, or extinguish, all Aboriginal rights... This is not the case. The government's objective is to negotiate agreements that will provide certainty of rights... To accomplish this, Aboriginal groups are asked to relinquish undefined Aboriginal rights ... in favour of the rights and other benefits which are written down in the settlement agreement. (107)



Of comprehensive claims, the document says the primary purpose is to conclude agreements that "will resolve legal ambiguities associated with the common law concept of Aboriginal rights." (108) It adds, "The objective is to negotiate MODERN TREATIES" (emphasis added) which define rights. (109) But "modem treaties" are not intended to be treaties as understood, historically or now, by Aboriginal peoples. The document declares that "(n)egotiated comprehensive claims settlements provide for the exchange of undefined Aboriginal rights for a clearly defined package of rights and benefits codified in constitutionally protected settlement agreements." (110) That is, negotiations must culminate in extinguishment of Aboriginal rights and their replacement with a legally-defined package of "rights."



Most recently, the Yukon Umbrella Final Agreement, structuring land claims, shared political jurisdiction and First Nations governments, was proclaimed on February 14, 1995. It is an important step towards an institutionalized mutual arrangement between indigenous nations and the Crown. But it is still premised on the unquestionable legitimacy of the Crown, rather than reflecting, at a minimum, the ambiguity that should attend that pre-eminent claim.



Nunavut, touted as an example of Aboriginal governance, should not be confused with governance pursuant to section 35 of the Constitution Act 1982. It is not an expression of the inherent right and does not attract protection under section 35. Nunavut is public government and a significant northern evolution.



As with other territorial governments, convention notwithstanding, jurisdiction ultimately rests with the federal government. Nunavut is, for now and perhaps for the foreseeable future, predominantly Aboriginal, but regardless of changes in ethnic composition over time, it is constructed as a public government, with responsibilities, like all other public governments in Canada, to all of the people within its jurisdiction, not just to Aboriginal people. (111)



The Royal Commission on Aboriginal Peoples, its final report pending, notes that "(b)oth the Yukon Agreement and the Nunavut Agreement represent progress with respect to the relationship between land claims and self-government negotiations." (112) There is, perhaps, evidence of a decay in racism which may formerly have precluded the creation of public government dominated by indigenous peoples (see Louis Riel's unfortunate experience). Meanwhile, British Columbia's recent and welcome foray into the land claims arena, potentially without extinguishment preconditions, is yet to be tested by the culmination of agreements. Further, the survival of B.C.'s Treaty Commission may depend on the perhaps uncertain survival of the NDP government, which initiated the B.C. claims and treaty process in a province historically hostile to contemplating of the existence of Aboriginal rights.



The historico-legal construction of a perpetual, pre-eminent underlying title of the Crown continues today, despite its apparent instrumentality for colonial interests and equally apparent lack of objective truth. Not only history but the rules which define the contemporary relationship of the colonizer and the colonized are made by the victors. Rather than seeking a partnership with indigenous nations through a continuing, evolving constitutional relationship, Canada has always sought to extinguish indigenous particularity and to incorporate it within the state.



The imperialist/colonializer society emigrated to become the settler, whose laws are now taken to define the parameters of the possible. Indigenous peoples live marginalized and impoverished lives in Canada, the best place in the world for non-Aboriginal men to live. (113) The imperialist/colonizer has not "gone home" and now, generations removed and hybridized, arguably cannot "go home." We continue the separation of Aboriginal and colonial realities, with the latter benefitting from its continuing appropriation of the wealth of the former, who continue to struggle to survive. Neocolonialism ("colonialism in a new form " (114) may have succeeded its colonial progenitor elsewhere, but in Canada, colonialism dominates. The seizure of Aboriginal lands and resources, the exclusion or peripheralization of Aboriginal nations from their lands, and the creation of justificatory legal, religious, economic and political structures and doctrines to enforce this state of affairs is colonial. Nothing has changed: Aboriginal nations remain economically and politically marginalized and deprived of their land and resource bases.



The colonial entity of contemporary Canada has no need of "Indians," but remains firmly squatted on Aboriginal lands and cannot survive without them. Effective reassertion of Aboriginal jurisdiction spells limitations for federal and provincial governments, and for the corporate interests that those governments have serviced so well to date. It potentially means limited, terminated or more costly access to natural resources; regulatory restrictions concerning environmental matters, community development and infrastructure; and required engagement with the primarily unskilled Aboriginal labour force.



These relations require careful consideration by Quebec. Should Quebec declare itself a sovereign state with territorial integrity approximating its current provincial boundaries, without the express agreement of Aboriginal nations who find themselves within Quebec, the colonial relationships practiced by Canada may well be replicated in the emergent state of Quebec. Justice for indigenous nations seems to elude settler societies, especially when its practice has strategic and economic implications. Rosemarie Kuptana, speaking for the Inuit of Quebec, suggested that the Inuit may separate from Quebec if it separates from Canada (115); both the Inuit and the James Bay Cree held separate referenda (116) in conjunction with Quebec's October 30, 1995 referendum of sovereignty/separation. The Inuit voted 95% and the Cree 96% in favour of an alliance with the state of Canada over a new state of Quebec. The two Aboriginal nations control approximately two-thirds of the territory of the province of Quebec. David Schneiderman, Director of the Centre for Constitutional Studies in the Faculty of Law at the University of Alberta, has suggested that, in international law, Aboriginal nations may have a stronger case than Quebec for self-determination. (117) At a minimum, the possibility exists that significant portions of the territory of the province of Quebec may not become part of a nation-state of Quebec.



Conclusion: Decolonization Within



When classical colonial relationships end, the colonizers go home. While some Aboriginal liberationists still advance this option, (118) few take it seriously. The settler and increasingly hybrid populations are here to stay. What is not resolved, however, is the appropriate nature of the relationship between Aboriginal and immigrant populations, though there is widespread agreement that the status quo, the colonial legacy, is unacceptable.



International law suggests that solutions may be found in the range of realizations of the right of "peoples" to self-determination, (119) from free association with the surrounding state to secession from it. "Free association" is just that - a freely negotiated and terminable organic relationship. It corresponds to Aboriginal articulations of the meaning of the historical treaties. However, this association must be based on a mutually acceptable settlement of jurisdictional questions, and recognition that indigenous jurisdiction "rests upon an inherent right, and not a revocable grant." (120)



How do we achieve decolonization while reconstituting the historical myth to include Aboriginal realities and constructing a contemporary polity that accommodates all its contributors? How do we break with the colonial process? How can Canada - or a post-secession Quebec - decolonize while continuing to exist as a nation-state, and while continuing to exist as a racially and culturally diverse "community of communities?"



The answers lie in facing up to the colonial past, in taking responsibility for it, and in collective commitment to restitution and to a new non-colonial, mutual and negotiated relationship between Aboriginal and immigrant peoples. Facing up to the past means owning all of our history, rather than perpetuating the myth of white settlers creating civilization in uncharted wilderness. Taking responsibility means understanding that the national wealth has been accrued at the expense of Aboriginal peoples, in ways that were legislatively mandated by governments acting on non-Aboriginal Canada's behalf.



Decolonization in the Canadian context means engaging in the perpetual work of maintaining relationship, not so that it can be circumscribed and terminated, but so that it can carry us all into the future. This new relationship will provide a framework for the elaboration of a non-colonial form of government, and for the creation of a society in which the history and well-being of some is not secured by obliterating the history and well-being of others. In the words of Manuel and Posluns:



An integration of free communities and the free exchange of people between those communities according to their talents and temperaments is the only kind of confederation that is not an imperial domination. (121)





It is a vision of hope for a post-colonial Canada.






Notes



* Thanks to Malinda Smith, Linda Trimble and Fred Judson, Department of Political Science, and Michael Asch, Department of Anthropology, and to the participants in the "Women's Studies Lecture Series," all of the University of Alberta, for their comments on drafts of this paper. Thanks also to the two anonymous reviewers for the International Journal of Canadian Studies and to Pierre Trudel and the anonymous reviewer for Recherche amerindicnne au Quebec. Responsibility for remaining errors rests with the author.

  1. Vine Deloria, 'Foreword", The Fourth World (George Manuel and Michael Posluns), Collier Macmillan Canada, 1974:xi.
  2. Edward Said defines imperialism as 'the practice, the theory, and the attitudes of a dominating metropolitan centre ruling a distant territory; 'colonialism', which is almost always a consequence of imperialism, is the implanting of settlements on distant territory." Culture and Imperialism, Vintage Books, Random House, New York, 1994, at 9.
  3. Orientalism, Random House, New York, 1979; and Culture and lmperialism, Vintage Books, Random House, New York, 1994.
  4. The Colonizer's Model of the World.. Diffusionism and Eurocentric History, The Guilford Press, New York, 1993 (hereafter cited as The Colonizer's Model of the World); and The National Question: Decolonising the Theory of Nationalism, Zed Books, London, 1987.
  5. Culture and Imperialism, Random House, New York, 1994, at 9.
  6. Barbara Ransby, "Columbus and the making of historical myth", Race & Class 33,3, 1992:82.
  7. For example, the "crisis of community", the tensions between regional and ethnonational collectivities posited by Michael Asch, "Aboriginal Self-Government and the Construction of Canadian Constitutional Identity", Alberta Law Review, Vol. XXX, No. 2, 1992.
  8. Albert Memmi, The Colonizer and the Colonized (Trans. Howard Greenfeld), Beacon Press, Boston 1965:3. See, also, James Blaut, "Enterprise in the Americas was from the start a matter of capital accumulation: of profit." The Colonizer's Model of the World, 1993, at 187.
  9. Ibid. 7-9.
  10. Ibid, 10 - 11.
  11. Ibid, 71-74.
  12. See, for example, Memmi, supra at note 8, 79-86; Ransby, supra at note 6, 82; Stevenson, infra at note 24, 36-41.
  13. L.F.S. Upton, "Origins of Canadian Indian Policy", Journal of Canadian Studies VIII, 1073:55.
  14. The Colonizer's Model of the World, 1993, at 24.
  15. Edward Said discusses this process as a consequence of imperialism and colonialism in Culture and Imperialism, 1994, at 9 and generally.
  16. Roxanne Dunbar Ortiz. "Aboriginal People and Imperialism in the Western Hemisphere", Monthly Review 44,4, 1992:3.
  17. Supra at note 7, at 470.
  18. Supra at note 6, at 79.
  19. Manuel and Posluns, supra at note 1, 8.
  20. Ransby, supra at note 6, at 82.
  21. CBC Radio, 740 AM - Edmonton, June 6, 1995.
  22. Ariana Hernandez-Reguant, "The Columbus Quincentenary and the Politics of the 'Encounter'", American Indian Culture and Research Journal 17:1, 1993:17.
  23. Culture and Imperialism, 1994 at 41.
  24. Michael Stevenson, "Columbus and the War on Indigenous Peoples", Race and Chm 33,3, 1992:28.
  25. Ibid:28.
  26. Ibid:28; also, see Mary Daly, who considers the semantic tactic of reversal to be a "fundamental thought-control mechanism", Outercourse, Harper, San Francisco, 1992:20.
  27. Stevenson, supra at note 24, at 30-31.
  28. Ibid, 33-34.
  29. For example, see James Blaut, The Colonizer's Model of the World, 1993, at 25, where he refers to the instrumentality of "the diffusionist idea that a colonized or colonizable territory was empty of population, or was populated only by wandering nomads, people with no fixed abode and therefore no claim to territory, or lacked people with a concept of political sovereignty or economic property".
  30. Patricia Moynihan, "The Decolonization of Modern Law: Dismantling the Relation between Race and Liberal Law", Canadian Journal of Law and Society (CJLS) 8,2,1993:194.
  31. Ibid: 195.
  32. Michael Stevenson, supra at note 24, 41.
  33. The Colonizer's Model of the World, 1993, at 25.
  34. Reesor, for example, writes "Settled colonies were regarded as extensions of Britain in the sense that British subjects took their rights under the common law with them when they moved to the colonies. ... The inhabitants of conquered colonies, on the other hand, had no such rights. The precise nature of their government, therefore, including the rights of the inhabitants, was determined after the conquest.' Bayard Reesor, The Canadian Constitution in Historical Perspective, Prentice-Hall Canada, 1992, at 5.
  35. Moynihan, supra at note 31, at 195-96.
  36. Edward W. Said, Culture and Imperialism, 1994, at 323.
  37. Blaut suggests that "the massive depopulation caused by the pandemics of Eastern Hemisphere diseases that were introduced to America by the Europeans" is the single greatest factor in establishing colonial dominance in the Americas. The Colonizer's Model of the World, 1993, at 184.
  38. "Statement of the Attorney General of Canada's Position on Extinguishment, Diminuation or Abandonment of Aboriginal Rights in the Claim Area" (Attorney General of Canada, December, 1989), cited by Asch, supra at note 7, at 471.
  39. Delgamuukw v. B.C. (1989),38 B.C.L.R. (2d), cited in Asch, supra at note 7.
  40. Ibid.
  41. Ibid:477.
  42. Ibid, 485-488.
  43. According to Asch, "Universalism suggests that the 'majority' is the collective of equal individuals who make up the population of the state." Ibid at 488.
  44. Ibid.
  45. CBC 740 AM Radio, Gzowski and Gabereau programs, September 7, 1995.
  46. Simon v R [1985] 2 SCR:404.
  47. Delgamuukw v B.C., [199115 CNLR:5.
  48. The Kanesetake Mohawk confrontation of first, the Surete du Quebec and then the Canadian army at the contested lands in the Quebec municipality of Oka in 1990, supported by Kanewake Mohawks who barricaded the Mercier bridge in Montreal; the 1995 Ipperwash Provincial Park blockade during which certain members of the Stoney Point Chippewa band contested their (federally) enforced amalgamation with the Kettle Point Chippewa as well as the loss of land to the Canadian military, and its subsequent alienation to the province of Ontario; the month-long 1995 Gustafsen Lake armed occupation of private ranch lands by various Aboriginal peoples and non-Aboriginal supporters, claiming that the land was sacred and unceded.
  49. I have chosen to identify 1867 as the emergence of the contemporary state of Canada. However, the historical record is subjective and contextual; the paper's focus on beginnings could easily be placed prior to or later than 1867.
  50. The Image of Confederation, The Hunter Rose Company for the CBC Learning Systems, Toronto, 1964:25.
  51. Indeed, an argument can be made that Canada was created to serve those interests - "on behalf and at the behest of" (with apologies to Ralph Miliband) - by structuring and managing the sociopolitical infrastructure essential to them.
  52. Bayard Reesor, The Canadian Constitution in Historical Perspective, Prentice-Hall Canada, 1992:82.
  53. Divided Loyalties: Canadian Concepts of Federalism. McGill-Queen's University Press, 1975:37.
  54. It has yet to reach an equitable resolution with the federal and provincial governments for a land base. Not coincidentally, the Lubicon claim includes land leased by Alberta, in return for significant royally revenue, for oil exploration and for timber for pulp production; the nature of development and the revenues flowing from development have arguably solidified provincial intransigence. Meanwhile, in a classic example of "divide and conquer", the Lubicon band has been eroded through federal recognition of dissident groups who have been given separate band status and land bases, which are substantially less than that being claimed by Lubicon Chief Bernard Ominiyak. Now, Alberta has withdrawn its latest offer of settlement, arguing that because of this erosion, Lubicon lacks the population base to justify that settlement. The Lubicon continue to languish in poverty and political limbo, a federally and provincially imposed punishment for Lubicon's insistence on its historical land and resources claims against both orders of government.
  55. See, for example, Manual and Posluns, supra at 1, 19-21, and R.N. Wilson, "Our Betrayed Wards", written in 1921 by a disenchanted (and later fired) Indian Agent, reprinted in the Western Canadian Journal of Anthropology, Vol.IV, No. 1, 1974. 56.
  56. Memmi, supra at note 8, at 103.
  57. Marie Smallface Marule, "The Canadian Government's Termination Policy: From 1969 to the Present Day", One Century Later (Getty and Smith, eds.) UBC Press, Vancouver, 1978; L.F.S. Upton, "Origins of Canadian Indian Policy, Journal of Canadian Studies VIII, 1973; John Tobias, "Protection, Civilization, Assimilation: An Outline History of Canada's Indian Policy", As Long As The Sun Shines and Water Flows (Getty and Lussier, eds.), UBC Press, Vancouver, 1983; George Manuel and Michael Posluns, supra at note 1.
  58. For example, Alexander Morris records the skepticism and distrust of a Chippewa, Nuswasoowahtum: "I see dimly to-day what you are doing, and I find fault with a portion of it; ... through what you have done you have cheated my kinsmen." The Treaties of Canada with The Indians, Belfords, Clarke & Co., Toronto, reprint 1971, at 224.
  59. Ibid:27-29.
  60. lbid:30.
  61. In a letter to the Secretary of State for the Provinces, dated November 3, 1871, in Morris, ibid:42.
  62. Ibid:29.
  63. Ibid.58.
  64. Ibid:204.
  65. lbid:221.
  66. Ibid:241.
  67. Ibid:31.
  68. An early construction of this most useful legal fiction is presented in St. Catharine's Milling and Lumber Company v. The Queen, (1889) 14 A.C.
  69. Supra at note 58, at 31-34.
  70. Ibid:37-39.
  71. Ibid:51.
  72. Ibid, 56-57.
  73. Ibid:59.
  74. Ibid:62.
  75. Ibid:249.
  76. Ibid:82.
  77. Ibid, 101-102.
  78. Ibid:170.
  79. Ibid :3.
  80. Ibid:38.
  81. Ibid:54.
  82. Ibid: 135.
  83. Ibid, 141-150.
  84. Most recently, Indian Self-Government in Canada (The Penner Report), Report of the special Committee on Indian Government, Canadian Government Publication Centre, 1983; Living Treaties: Lasting Agreements (The Coolican Report), Report of the Task Force to Review Comprehensive Claims Policy, DIAND, Ottawa, 1985; The Royal Commission on Aboriginal Peoples, 1993 - current (final report due in 1995).
  85. Royal Commission on Aboriginal Peoples, Treaty Making in the Spirit of Co-existence, Minister of Supply and Services Canada, 1995, at 36-37. Hereafter cited as RCAP, Treaty Making.
  86. Living Treaties: Lasting Agreements (Report of the Task Force to Review Comprehensive Claims Policy) Ottawa, Department of Indian Affairs and Northern Development, December 1985.
  87. Ibid:40.
  88. Ibid:41.
  89. S.35, Constitution Act 1982.
  90. Supra at note 85, at 40.
  91. "Choosing a Path", DIAND, Ottawa, 1969.
  92. A later Trudeau government advanced Bill C-52, "Optional Indian Government Legislation" through 1983-84 (though it died when the government lost the 1984 election to the Mulroney Tories) despite the fact that ongoing constitutional conferences on Aboriginal government indicated this delegated, legislated, municipal model was unacceptable to Aboriginal people. However, the Sechelt Indian Band Self-Government Act (R.S.C. 1985) was passed by the Mulroney government, conferring quasi-municipal status on the Sechelt Band. The Mulroney government also initiated the Community Based Self Government (CBSG) process, a municipal model of even less potence than Sechelt's legislated model.
  93. Assembly of First Nations National Chief Ovide Mercredi had supported the Charlottetown proposals. The AFN was to review and ratify or reject the Charlottetown Consensus Report at a Special Assembly called for that purpose, September 14-16,1992, at the Squamish Nation in Vancouver. However, after three days of intense and polarised debate, with the benefit of some clever procedural politics, quorum was destroyed and the Chiefs made no decision on the only resolution on the agenda. That resolution would have confirmed AFN support for the English version of the Charlottetown Accord. A consensus statement was issued in its place, which essentially left it to each First Nation to determine whether it would support the Accord. At issue was the impact of engaging in Canadian constitutional development on the sovereign status claimed by many First Nations; and especially on the application of the Charter of Rights and Freedoms to First Nations. The Consensus Resolution states: That the AFN has been involved in the negotiation of the Charlottetown Accord; and that the AFN is not in a position to ratify or reject the Charlottetown Accord; and that recognising their inherent authority the First Nations in each region decide on how to proceed with the referendum on October 26, 1992; and that the First Nations in each region will decide on the process to determine whether or not to ratify the proposed Constitutional Accord; and that the Chiefs-in-Assembly express support for the National Chief to continue negotiations to pursue the Constitutional objectives of the Assembly of First Nations and to clarify the implications of the Accord so that it may be put forward for decision in First nations communities.
  94. The Accord was rejected by Canadians in the national referendum of October 1992.
  95. DIAND internal document, 1995.
  96. RCAP, Treaty Making, 1995, at 43.
  97. Ibid at 57-58; and at 45-46.
  98. "Native self-government: Canada tries again", August 12, 1995, at A6.
  99. Indian and Northern Affairs Canada, March 1993. The options of full or partial extinguishment are preferred.
  100. I developed these ideas in July 1993 in a memorandum to Michael Asch entitled "Notes Relating to Title and Extinguishment".
  101. DIAND, 1993, Supply and Services, Ottawa.
  102. R. v Sparrow [199013 CNLR (SCC).
  103. Federal government "policy for the settlement of native claims", March 1993,:1.
  104. Ibid:2.
  105. Ibid:8.
  106. Ibid:2.
  107. Ibid:9.
  108. Ibid: 1.
  109. Ibid: 1.
  110. Ibid.
  111. I am indebted to Gurston Dacks for his helpful February 13, 1995 discussion of Nunavut.
  112. RCAP, Treaty Making, 1995, at 42-43.
  113. As determined by the United Nations in 1995, based on various standards and expectations for men's lives. For women, however, Canada ranked 9th.
  114. Jack Woddis, Introduction to Neo-Colonialism: The New lmperialism in Asia, Africa & Latin America, International Publishers, New York, 1967:1 1.
  115. CBC Radio, 5:00 p.m. news, August 21,1995.
  116. The lnuit referendum will be held October 26, 1995; the Cree referendum will be October 24,1995.
  117. Interview on CBC Radio, 740 AM, Edmonton, October 24, 1995.
  118. The "Boat Argument": a boat at each coast, and immigrant populations may choose a boat and go back to where they ‘came from'.
  119. Articles 1 of both the International Covenants on Economic, Social and Cultural Rights, and on Civil and Political Rights. Canada is signatory to both Covenants.
  120. Maivan Clech Lam, "Making Room for Peoples at the United Nations: Thoughts Provoked by Indigenous Claims to Self-Determination", Cornell International Law Journal, Vol. 25, No. 3, 1992, at 608.
  121. Manuel and Posluns, supra at note 1:11-12.