The Basis of First Nations Sovereignty within the Canadian State

Copyright 2009 Steven Martin

The Basis of First Nations’ Sovereignty within the Canadian State

When Prime Minister Stephen Harper offered an official apology in

2008 to the Aboriginal victims of Canada’s Residential school

system he managed to avoid mention of the larger context of

European subjugation and cultural genocide that produced it;

National Post Politics Editor Kelly McParland suggested that might

be because “the subjugation and humiliation goes on to this day;

that the government, and Canadians in general, are embarrassed

and frustrated that the poverty of so many native communities

continues to resemble third world countries rather than

prosperous, pleasant Canada.”1 It is possible Harper’s omission

might not be a deliberate omission at all. It might be that like

many Canadians, he sees the terrible destitution of many First

Nations peoples in Canada but does not see the systematic

condition of “subjugation” that causes it: the nature of Canada’s

occupation is invisible to the vast majority, the image and scope

of its oppression softened by the very moderation that Canadians

take pride in.

The inability to perceive First Nations as victims of

occupation is largely the result of the power imbalance that

exists between these peoples and the Canadian state: Canada

wields the economic and armed power necessary to enforce its

will; on the other hand Canada has little to fear from the

1 Kelly McParland, “A limited apology that sidesteps Canada’s original sin,” Nationalpost.com, June 11 2008, http://network.nationalpost.com/np/blogs/posted/archive/2008/06/11/a-limited-apology-that-sidesteps-canada-s-original-sin.aspx (accessed Nov 28, 2008).

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consequences of ignoring or rejecting First Nations’ demands.

This power imbalance has been mitigated by several factors:

Canada’s judiciary has acknowledged the legitimacy of some First

Nations’ claims, resistance and cultural revival movements among

First Nations have helped strengthen their position in society,

and Canada’s democratic culture has had some impact in moderating

policy towards vulnerable groups. Yet in spite these elements

Canada still governs the First Nations as subjects, can largely

dispose of disputed lands and other First Nations demands on

their own terms. When, for instance, the Algonquin Barriere Lake

Band of Québec blockades a logging road to force Canada and

Québec to the negotiating table over disputed land, it is still

the Sûreté du Québec that are sent in response, not negotiators.2

Perhaps an even more insidious reason why the subjugation of

First Nations in Canada is little perceived among Canadians is

that First Nations culture, even First Nations community, is not

often understood or encountered. There are few points of contact

between First Nations living on rural reserves and the mainly

urbanized Canadian population, and marginal community

relationships between the urban Aboriginal population and the

majority of Canadians. The gulf of familiarity between Aboriginal

and non-Aboriginal Canada has made it difficult for non-

Aboriginal Canada to give weight to many First Nations’

2 “Quebec police arrest 9 Algonquin protesters, end blockade,” CBCnews.ca, October 6 2008, http://www.cbc.ca/canada/ottawa/story/2008/10/06/ot-blockade-081006.html (accessed April 20 2009). In the case of Barriere Lake, the Federal and Provincial governments are refusing to observe non-binding agreements signed with the Algonquin band.

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understanding of themselves and their rights. The inaudibility of

First Nations’ voices is partly created by the power imbalance,

but it is also generated by great differences in Aboriginal and

non-Aboriginal culture; Aboriginal cultures are part of an

entirely distinct and fully developed “New World” civilization.

Complex culture existed for thousands of years before the

colonial era from the East Coast to the West Coast.

Regardless of her difficulties giving weight to the voices

of First Nations, in recent decades Canada has been engaged in a

slow effort to dismantle her colonial institutions and grant some

measure of respect and restitution to First Nations people. Not

coincidentally, First Nations have at the same time undergone a

slow recovery of their cultures and populations. The most

significant of Canada’s changes has been the acknowledgement of

Aboriginal title and treaty rights in the 1982 Constitution Act,

dismantling the government’s longstanding assimilation policies.

This was followed by the willingness to negotiate self-government

agreements with nations that did not cede their sovereignty by

treaty.3 As important as these efforts have been, they have been

found insufficient by many First Nations in the context of their

right to self-determination, and for making their survival as

peoples feasible in the long run. Just as their cultures revive,

First Nations subsist with little territory, few resources and as

such, an economic base to build on. Just as their populations

3 Library of Parliament. Aboriginal Self-Government. (Ottawa: Prepared by Jill Wherrett, Political and Social Affairs Division, 1999). accessed Nov 28, 2008 from http://www.parl.gc.ca/information/library/PRBpubs/962-e.htm.

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rebound, poverty and crime rates increase. The solution put

forward by some Aboriginal peoples, in the words of Mohawk

Warrior Movement leader Allan Delaronde, is that,

“…the only power that exists for any people, whether it

is Mohawks, or any nation, lies in the decision of the people

to determine who they are and to assert their nationhood…We,

as Mohawks, must define our own identity. Our power comes from

within… our strength comes from our identity. Nationhood is

the central issue here…”4

It is the object of this paper to argue in favor of ceding

sovereignty over significant territory to First Nations

sufficient for the building of nations based on their traditional

cultures. Two central arguments will be offered as to why First

Nations are entitled to sovereignty: as nations that became part

of Canada as a result of occupation by military power, they

possess an inherent right to self-determination- that they are

entitled to this right as a matter of justice. The second

argument concerns survival as nations: these peoples require

territory in order to form a functional economic and political

base. Moreover, First Nations distinct cultural relationship to

land necessitates large territories under their stewardship in

order to function.

4 Quoted in Linda Pertusati, In Defense of Mohawk Land: Ethnopolitical Conflict in Native North America, (State University of New York Press. Albany:1997), 53.

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These sources of First Nations’ rights to self-

determination, justice and survival, will be explored through the

prism of three different peoples and their varying approaches to

achieving autonomy to one degree or another. The examples were

selected to represent a geographic cross-section across Canada,

from the Mi’kmaq of Newfoundland, to the Iroquois Confederacy of

southern Ontario and Québec, to the Nisga’a of British Columbia.

This demonstrates not only similarities regarding claims to self-

determination, but will also demonstrate certain general cultural

features of Aboriginal peoples that are evidence of a common,

functional non-Western civilization. The most important of these

features is the relationship to land: the beliefs common to First

Nations in Canada regards all things within the natural world as

possessing a sacred aspect which is accorded the status of a

living being that must be respected on its own terms. This is

stark contradiction to Western notions of possession of land as a

thing that serves humanity. Further, the personalizing of land

gives rise to notion of interdependence that produces a

communalism in their politics, strongly at odds with the

individualism of the liberal democratic tradition.

The examples used also represent varying degrees of self-

government, according to a framework drawn up by sociologist

Augie Fleras. Fleras distinguishes between four degrees of self-

government: Statehood, referring to absolute sovereignty and

territorial autonomy (as pursued by parts of the Iroquois

leadership); Nationhood, signifying complete internal autonomy

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without any external jurisdiction, ‘sovereignty without

secession’ (pursued by another part of the Iroquois leadership);

Municipal Self-government, ‘functional’ sovereignty over culturally-

sensitive issues and some internal jurisdiction (achieved by the

Nisga’a in 1999); and Institutional Self-government, signifying special

privileges accorded through institutional accommodation and some

decision-making powers through ‘improved representation’ (the

recent formation of a landless band by the Mi’kmaq of

Newfoundland in 2008).5 As there are no First Nations peoples

other than the Iroquois actively seeking the level of sovereignty

of Nationhood or Statehood at present, these categories have been

fused together under the heading of Nationhood, acknowledging the

multiplicity of leadership factions within the Iroquois community

on this issue. These categories of self-government will help

clarify the differences in ambitions of different First Nations

and how they envision their self-government models integrating

with Canada.

Defining “First Nations,” “Self-determination” and “Sovereignty”

The subject of a national community of Aboriginal peoples is

of course extremely large, and for the purposes of this paper it

has been necessary to limit the scope to a clearly defined unit.

First Nations, according to the Assembly of First Nations is a term

5 Augie Fleras, “Politicizing Indigeneity: Ethno-politics in White Settler Dominions,” in Indigenous Peoples’ Rights, ed. Paul Havemann (Oxford: University Press, 1999), 198-9.

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replacing “Indian” and has no particular legal status.6 While the

term Aboriginal is intended to apply to all Indian, Inuit and Métis

people in Canada, First Nations is used here to represent all

Aboriginal peoples living south of the sub-Arctic region of

Canada, and who retain some claim to their traditional culture.

Self-determination, according to Paul Chartrand, a commissioner

on the 1991 Royal Commission of Aboriginal Peoples (RCAP) and

himself Métis, came into vogue among Canada’s Aboriginal

community in the 1970s as a term carrying the weight of

international law, cited in the United Nations Charter in Article

1, which speaks of “respect for the principle of equal rights and

the self-determination of peoples.” It means that a distinct

people have an absolute, inherent right to decide how and by whom

they will be governed. The right to self-determination implies

the right of other peoples to self-determination, and thus one

group’s right should not negate the rights of the other.

Chartrand explains that the implication of self-determination

“can range from complete, happy, voluntary assimilation to, at

the other extreme, a declaration of complete political

independence.”7

The notion of Sovereignty is equated with the definition of

Statehood given by Augie Fleras, of territorial autonomy and

absolute jurisdiction over internal and external affairs. The

6 Assembly of First Nations’ Fact Sheet. From the AFN website http://www.afn.ca/article.asp?id=437 (accessed April 2 2009).7 Paul Chartrand. “Aboriginal Peoples in Canada: Aspirations for Distributive Justice as Distinct Peoples,” in Indigenous Peoples’ Rights, ed. Paul Havemann (Oxford: University Press, 1999), 94.

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source of sovereignty is defined according to the statement made

by Allan Delaronde above: sovereignty resides in the right to

self-determination of a distinct people that have never

voluntarily ceded their sovereignty to a governing body. The

distinct is important: if First Nations possess the right to

self-determination, then those nations are entitled to

sovereignty or Statehood.

The inherent right to self-determination of First Nations is

a general theme in Canada-Aboriginal relations – First Nations as

a whole constitute an unrecognized third founding nation along

with English and French Canada. Despite the fact that different

First Nations across the country have different political

relationships with Canada, and different needs and desires, each

of these nations, as part of a non-Western civilization that did

not voluntarily cede its sovereignty or its culture, possess the

right to determine their own fate.

A Note on Standards of Evidence

This paper will make use of historical and legal evidence to

support its claims, but equal weight will be given to statements

made by representatives of First Nations peoples themselves. As

noted in the introduction, the imbalance of power between the two

cultures has led to a situation in which Western sources of

evidence are given the greatest weight: Western history is

considered the source of reliable history, and what is

acknowledged in Western law is given the status of legitimacy.

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These might be indisputably legitimate sources in dealings

between nations of Western civilizations, but these sources

become insufficient when imposed on peoples who claim the right

to self-determination – the right to speak for themselves. If one

accepts that conquest or coercion are illegitimate sources of

sovereignty, and that occupied peoples possess an inherent right

to self-determination, then it does not follow that the nature of

self-determination or nationhood should be defined by the

occupier’s standards. Therefore, the statements of

representatives of First Nations communities regarding the will

and the beliefs of those communities will be given great weight

alongside legal decision and Western scholarship.

The selection of these representatives poses a further

complication: the political bodies of many First Nations

communities have been criticized as being unrepresentative of the

true will of these communities. The officially recognized band

councils were governments imposed by the colonial system, created

by the 1876 Indian Act and imposed by 1884, and autonomy was

allotted to them according to how well they complied with the

Ministry of Indian Affairs. The Ministry would take authority if

there was “reluctance of band councils to do what the department

deemed desirable.”8 Band councils up to the present day receive

funding and ultimately political authority from the government,

suggesting that representation of their communities is often 8 DIAND, Policy, Planning and Research Branch, p.105, Quoted in: Hamar Foster,“ ‘Indian Administration’ from the Royal Proclamation of 1763 to Constitutionally Entrenched Aboriginal Rights,” in Indigenous Peoples’ Rights, ed. Paul Havemann (Oxford: University Press, 1999), 364.

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compromised by a greater level of dependence on the government

than on their constituents. This is equally true of the Assembly

of First Nations (AFN), ostensibly a national representative

body, but also depends upon the federal government for the lion’s

share of their funding.9 Conversely, insurgent groups and

leadership factions might represent only special interests or be

simply unrepresentative of the will of the community, such as

members of the Mohawk sovereignty movement being accused within

the community of using politics to defend their controversial

gambling and cigarette industries.10

Both governmentally-recognized and unrecognized leaders will

be cited if they can be said to represent some significant

portion of the community or the traditional culture.11

Self-determination as a matter of Justice and Survival

The contemporary Canada-First Nations relationship consists

of First Nations treated as subjects of Canada, a minority

culture with special rights based on acknowledged treaty

arrangements and legal recognition based on the authority of the

British Crown. Their legal status derives historically from the

1763 Royal Proclamation, the combination of legislation contained

9 Russel Diabo. “Smoke & Mirrors-The Kelowna ‘Commitments’: First Nations and the Federal Election 2006,” First Nations Strategic Bulletin, (2005), Vol.3:12, 5. 10 Petrusati, 74.11 Specifically traditional culture as opposed to simply aboriginal culture to distinguish between those First Nations that wish to rebuild a non-Western society and those that have embraced Western ways and means and do not hold traditional culture in high regard- this is also aboriginal culture, but a kind outside the scope of this paper.

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in the 1867 British North America Act and the 1876 Indian Act,

and the 1982 Constitution Act. The Royal Proclamation of 1763

declares that only the Crown could buy land from First Nations

through treaty on a “‘nation to nation’” level, implicitly

recognizing the sovereignty of these nations and their

territories.12 It is important to note that the colonial

government often encroached on First Nations land outside the

legal framework of the treaty system throughout the span of

Canadian history, and as such Canada claims sovereignty over land

that is outside its own definition of legitimacy.13 What is

significant about this is that land claims and indigenous rights

issues have traditionally been perceived as legitimate based on

legality, whereas First Nations have a claim to sovereignty

outside of the context of British common law, deriving legitimacy

from the reality of their presence on the land since “time

immemorial.”14

The British legal recognition of First Nations as sovereign

peoples ends with the articles of Confederation and the Indian

Act. The federal government assumed authority over all First

12 Charlotte Cote, “Historical Foundations of Indian Sovereignty in Canada and the United States: A Brief Overview,” American Review of Canadian Studies 31:1, (2001). 13 Ronald Wright, Stolen Continents (Toronto: Penguin Books, 1992), 134. As an example among many, Wright cites the instance of a British General’s disinterest in preventing the intrusion of settlers into native territory within his military jurisdiction in the aftermath of the Anglo-French war of 1763. Such events are not typically taken into account as part of legal history.14 The language used in the 1973 Calder decision, ironically; Calder et al. v. Attorney-General of British Columbia, 1973. CanLII 4 (S.C.C.) [1973] S.C.R. 313.

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Nations peoples and explicit legislative jurisdiction over First

Nations’ land. The Acts established the contemporary political

relationship, one in which “any form of Indian government exists

by virtue of delegated authority of the Canadian Parliament and

is not derived from an inherent right of the Indian tribe.”15 At

this time traditional governments were removed and replaced with

colonially mandated political processes and leadership.

Governmental control over First Nations’ affairs was absolute and

Canadian policy was composed of assimilation and paternalism. By

the time of the Acts the government was already dealing with

First Nations peoples as a ruling power, but the Acts served to

consolidate and legitimize the policy. It often argued that by

this point in history the assumption of sovereignty over

Aboriginal peoples was a foregone conclusion, given that their

populations had been decimated by disease, barely capable of

sustaining themselves much less defend their lands against

stronger peoples or the encroachments of settlers. The causes of

decimation, however, were largely traceable to colonial

encroachment on First Nations lands and the subjugation of First

Nations peoples. If the vitality of these peoples was

significantly diminished by the time of Confederation then this

is mainly the result of policies that had been followed since

1763 and before; policies of colonial expansion.

The history of Canada’s legal declarations regarding its

relationship to the First Nations reflects the changing power

dynamic between them. Sometime between 1763 and 1876 the 15 Cote, (2001).

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sovereignty of First Nations disappears and is replaced with the

domination of Canadian government. A major force altering this

dynamic was the impact of smallpox disease in the Americas in the

early era of colonialism. Although impossible to accurately

determine pre-contact populations, best estimates suggest that

complex nations like the Iroquois, (given the span of their

territory and the accounts of populations of settlements by

contemporary observers), likely contained hundreds of thousands

of people. Some one hundred years after contact, by the 1600s,

this population was known to be roughly 75,000.16 Similar

decimations, with nations losing from one-half to four-fifths of

their population, took place across Canada, sometimes in multiple

waves, but the vulnerability to smallpox was a continent-wide

trait. The colonists entered into contact with nations on the

verge of catastrophe or in the midst of it, and before there was

time or space to recover, the colonial societies had already

become dominant on Aboriginal land.

Regardless of their condition, no First Nations leadership

had signed the Articles of Confederation, or the Indian Act, nor

does their consent appear in the Constitution Act in the modern

age. The Numbered Treaties signed around the time of

Confederation, negotiated with peoples from Ontario to British

Columbia, come closest to voluntary consent to release

sovereignty and title to land. In many cases, however, these

treaties were signed under duress. The Canadian government also

actively pursued a “submit or starve” policy that withheld food 16 Wright, 123.

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and goods as these people faced starvation and collapse, which by

definition is not voluntary but coerced negotation.17 Most First

Nations of Canada never ceded their sovereignty, it was forcibly

taken from them by methods such as these.

Even at its most dovish, colonial views of First Nations

civilization in the formative years of Confederation were

incompatible with mutual coexistence; liberal sentiment in the

Empire sought from the beginning to gradually dismantle

Aboriginal civilization and “civilize” their peoples. This was

thought to be a humanitarian project on the part of the British

Empire, to bring Aboriginal civilization from a primitive culture

to the height of human achievement in the form of European,

industrial culture. Free markets, an industrious work ethic,

individualism and individual rights to property were all

cornerstones of British achievement; principles that appeared

antithetical to Aboriginal culture. Property rights, for the

European, were a source of liberation and prosperity: the

commoditization of land dismantled the old feudal system and

released much land for economic exploitation in the Old World,

while the excess working class population achieved unprecedented

prosperity and freedom through the acquisition and development of

17 Commissioner Edgar Dewdney, responsible for the negotiation of treaties in Saskatchewan in the 19th century, abandoned the “submit or starve” policy when the Cree began uprisings. He told Prime Minister John A. Macdonald that instead “sheer compulsion” was “the only effective course” in controlling these Aboriginal peoples and was allotted a larger detachment of RCMP to deal with resistance, (quoted in Gerald Freisen, The Canadian Prairies: A History (University of Toronto Press, 1987), 152.

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land in the New.18 Partition and commoditization were considered

enlightened; hunting-gathering and the conception of land as a

living being primitive. The natural world was seen as a thing

primarily to be exploited for human benefit, and the Judeo-

Christian tradition was easily interpreted to give holy sanction

to the industrial relationship.19

The reserve system imposed upon First Nations in the post-

Confederation era was rationalized as being a transitional phase

between the Aboriginal way of life and becoming Europeanized. The

system (which exists up to the present day), would acclimatize

Aboriginal peoples to alien notions of land ownership and

individual subsistence, the basis of European prosperity. Small

land parcels and legal suppression of First Nations’ cultural

practices were meant to discourage the practice of their own

systems and force adoption of Western means. This was met with

little resistance due to the destabilized condition of First

Nations societies through disease, colonial encroachment, and

famines resulting from the extinction or severe reduction of

essential animal species, such as bison on the prairies. The poor

condition of First Nations at the time was recognized by some

18 R. Cole Harris, Making Native Space: Colonialism, Resistance, and Reserves in British Columbia. (UBC Press: 2003), 5. ‘Wakefieldian’ thought (after proponent Edward Wakefield) argued that colonialism allowed labor to be cheap and allowed the chance for the laborer to become a property owner in time, so long as land prices were kept low. 19 Genesis 1:28, KJV: “Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth.” Genesis 9:2-3, KJV: “And the fear of you and the dread of you shall be upon every beast ofthe earth, and upon every fowl of the air, upon all that moveth upon the earth, and upon all the fishes of the sea; into your hand are they delivered.”

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thinkers as resulting directly from colonialization, but even

these saw the demise of Aboriginal civilization as inevitable,

and promoted the reserve system as a means of rescue.20

Stripped of their rights to self-determination and, through

the policy of assimilation denied the capacity to form their own

responses to their economic and social conditions, First Nations

communities suffered devastating consequences. At the turn of the

20th century the native population of Canada had fallen from

roughly half a million to one hundred thousand, and it was a

common belief that the race was doomed to extinction.21 The

Aboriginal population having recovered over the course of the 20th

century to some 1.1 million as of 2006, the quality of life often

persists at a third world level both on the reserves and in the

cities.

The recognition of Aboriginal land rights in Canadian law

returned with the 1973 Calder decision, regarding the Nisga’a

claims in British Columbia. While the Supreme Court of Canada

made it clear that this recognition must be reconciled within the

assumption of Canadian sovereignty over national territory

accepted the sovereignty of Canada over all territory, the

language of recognition in the decision could suggest the

opposite, arguing that Aboriginal title derives from “a pre-

existing right of possession.”22 The 1982 Constitution Act was the20 Harris, 9-10.21 Ken Coates, “The ‘Gentle’ Occupation’: The Settlement of Canada and the Dispossession of the First Nations” in Indigenous Peoples’ Rights, ed. Paul Havemann (Oxford: University Press, 1999), 143. 22 The full quote is as follows: “This aboriginal title does not depend on treaty, executive order or legislative enactment but flows from the fact that

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outcome of the legal precedent set in the Calder decision, and

marked a fundamental policy shift within the federal government.

Section 35(1) of the Act recognized “existing aboriginal and

treaty rights” which, according to the Supreme Court’s position,

meant that Canadian land was not in fact terra nullius before the

arrival of Europeans but indeed was the territory of First

Nations peoples. The inclusion of Section 35(1) marked in an

important sense the lifting of the absolute subjugation of First

Nations and allowed for a new form of democratic recourse: First

Nations could now appeal to the courts for redress and for the

settlement of land claims disputes. This has led to a number of

negotiations for compensation and settlement, most notably for

the James Bay Cree and the Nisga’a. The land claims process,

however, is gravely limited, often resulting in buyouts of land

by provincial governments from desperately impoverished First

Nations communities in an updated, capitalist version of the

colonial dynamic of an extreme imbalance of power.23 Actual land

gains are fairly limited, and if the buyout pattern persists,

could result in accelerating the process of assimilation that

will lead to extinguishment of First Nations identity altogether

and rendered such questions meaningless.

the owners of the interest have from time immemorial occupied the areas in question and have established a pre-existing right of possession.” [italics mine] (Calder 1973).23 As an example, 70% of Cree people voted in a recent referendum to accept from Quebec and Hydro Quebec “a $70-million-per-year-over-50-years buy-out of all Cree legal actions pertaining to Hydro development and the land claim” seePeter Kulchyski, “First Peoples and the Struggle for Democratic Sovereignties,” Canadian Dimension 37:1, (2003).

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Although Canada is in the process of dismantling its

colonial policies of assimilation, its conviction that the

Western model is the only viable political arrangement,

(especially with regards to its relationships to the land)

endures. While some environmentalism and aesthetic regard for the

natural world has emerged in Canadian culture over its history,

resulting in present-day attitudes of stewardship rather than

mastery over the natural world, maximizing economic exploitation

of land is still the fundamental bias of the society-land

relationship. Notions of selective logging advocated by some

First Nations and environmentalists as a means of sustaining

forest ecologies are resisted by the forestry industry, for

example, which views clear-cutting as essential to its

enterprise.24 The forestry industry enjoys considerably more

priority in land use policy than environmentalists or First

Nations. Land as a commodity is still viewed as a means to

individual freedom and social prosperity. There are substantive,

if understated, changes in the Canadian understanding of First

Nations, however, such as the 1997 Delgamuukw Supreme Court

decision concerning the Nisga’a, which held that Nisga’a land

ownership was communal, and “aboriginal title” was fundamentally

different from Canadian property definitions.25

24 John L. Lewis and Stephen R.J. Sheppard. “Ancient Values, New Challenges: Indigenous Spiritual Perceptions of Landscape and Forest Management,” Society and Natural Resources, vol.18 (2005): 908.25 The Delgamuukw decision used the language that “Decisions with respect to that land are also made by that community. This is another feature of aboriginal title which is sui generis and distinguishes it from normal property interests” [italics mine], which indicates, perhaps, an effort to emphasize

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Canada’s current self-government policy is outlined in the

Chrétien government’s 1995 Aboriginal self-government paper,

which acknowledges an inherent right to self-government based on

Section 35 of the Constitution Act. The statement made clear that

this was not an acknowledgement of the right to self-

determination, emphasizing that “The inherent right of self-

government does not include a right of sovereignty in the

international law sense, and will not result in sovereign

independent Aboriginal nation states.”26 Self-government cannot

take the form of nationhood as defined by Augie Flores; self-

government means at most a form of municipal self-government.

From the Canadian point of view this policy is a revolutionary

step towards granting First Nations some measure of power to

rebuild their societies, and represents a renunciation of the old

colonial mentality. But from the First Nations’ perspective,

while this policy might represent a hopeful beginning, it takes

place within a larger context of occupation and continuing abuse.

It is on this point where much misunderstanding lies between

Canadians and First Nations, and where the First Nations’

perspective often goes unheard; self-government is on it’s own, a

small concession.

We have been looking at the question of self-determination

from the perspective of Canadian notions of legality and

that sovereignty continues to lie with the Crown regardless of the inherent character of Aboriginal title, (Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010).26 The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation ofAboriginal Self-Government, Minister of Public Works and Government Services Canada, (1995).

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ownership. Now we will look at the question from the point of

view of First Nations understanding of legitimacy. In the 1970’s,

the claim of the right to self-determination was introduced into

the debate regarding the definition of native status. The

assimilation policy contained in the Trudeau government’s 1969

White Paper was so overtly a policy of cultural annihilation that

for the first time a pan-Canadian Aboriginal sentiment began to

take form, heralded by the 1970 Red Paper, a united Aboriginal

response to the White Paper. This pan-Indianism marked the

beginning of forming common ambitions among First Nations in

North America.27

Not only did the term “self-determination” carry the

strength of international consensus in the emerging era of human

rights law, but it was the right to self-determination that the

Québecois claimed during the Quiet Revolution. First Nations

activists took note that the claim helped legitimize the struggle

that spurred the ascent of the Québecois in national politics,

galvanized their demands for recognition, and helped force a

reluctant Canada to make significant concessions. The language of

self-determination was also rediscovered in their own histories,

when First Nations were resisting Canada’s initial efforts to

take control of their nations.

Among Canada’s First Nations, even between these and Native

Americans of the United States, there exists a definite

understanding of a common civilization and a shared culture with

27 Hiller, Harry H. Canadian Society: A Macro Analysis. 5th edition. (Prentice Hall: 2006),213.

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respect to certain principles. There also exists a continent-wide

consensus regarding their history of occupation and their rights

to self-determination. In 1999, The AFN and the U.S. National

Congress of American Indians signed a Declaration of Kinship and

Cooperation Among the Indigenous Peoples and Nations of North America at a

Joint Assembly in Vancouver (or as was declared at the Assembly,

in “Coast Salish territory”).28 The Assembly was composed of 3,000

delegates from both countries and both bodies were as close to

nationally representative bodies as can be found in the present

day. Within the declaration is the explicit statement: “We have all

retained the inherent right to self-determination. In shaping our own

destinies we will remain faithful to the time honored traditions

of our ancestors and we will work to secure the greatest possible

freedom, dignity and prosperity for our descendents” [italics

mine].”29 The Declaration makes mention of the commonality of

Aboriginal culture: “While our Indigenous Peoples and Nations

have distinct identities, cultures, languages and traditions, we

have also been guided by many common purposes and beliefs, which

have been shaped by many common experiences;” citing a harmonious

relationship with the environment and a “sacred relationship to

the land” among their common beliefs.30

28 “Joint Assembly of the Assembly of First Nations and the National Congress of American Indians Resolution number 1,” July 23 1999. http://www.afn.ca/article.asp?id=942 (accessed April 20 2009).29 “Declaration of Kinship and Cooperation Among the Indigenous Peoples and Nations of North America,” July 23 1999. http://www.afn.ca/article.asp?id=55 (accessed April 20 2009). 30 Ibid.

21


A “sacred relationship to the land” is one of several

principles of a shared First Nations’ civilization across much of

North America. Other important principles include a well-defined

communalism, respect for the other, and varying interpretations

of an animist spiritual cosmology (i.e. that all things in nature

are living beings or possess a soul, and that nature itself is

the physical embodiment of the Creator). They have a political

character as well as cultural, being the foundations for the

complex societies that flourished for thousands of years,

collapsing only under waves of severe crises of disease, famine

and war.

The “sacred relationship to the land” can be understood as

both a religious and a mundane principle: a member of a BC Coast

Salish First Nation (the Cheam) discussed the acceptability of

selective rather than clear-cut logging according to this sacred

relationship: “All the mountains, the water, the trees, the

plants, the game, the ones that fly, the ones that crawl are very

sacred to us because… the Great Spirit put it there for everyone.

So we know that if something like this [timber harvesting] is to

be done it should be done in a very sacred and respectful way and

some, maybe some of this logging can take some of the resources

away but still leave a lot behind.”31 In this Cheam perspective (a

view echoed across the country among First Nations cultures)

maintaining the integrity of the natural ecology is a practical

matter of sustainability, so that land use for human benefit

might continue in perpetuity. At the same time it is also a 31 Lewis and Sheppard, 914.

22


matter of existential meaning, that humanity is a member of the

family of the natural world, rather than its master. It is often

argued (commonly from the Marxist viewpoint) that economic

technology shapes culture, and its impact is undeniable, but the

Cheam’s easy suggestion of respectful industrial logging suggests

that culture has the converse power to shape economy. Indeed, in

the present era, ways of combining Cree land knowledge with

scientific knowledge regarding ecology management has been argued

to be the likely route to a future sustainable system of forest

management.32 Integration of Western and Aboriginal ideas not only

supports the notion that Aboriginal societies can adapt to new

circumstances, but that Western practices could be improved by

Aboriginal knowledge – the distinction of primitive and advanced

civilizations is often based more on the disparity of physical

power than sophistication of culture. The inventor of the gun

wins the status of “advanced civilization” over the master of the

bow. No less significant is that even after 150 years of

assimilation and occupation, the “sacred relationship” to land

remains a key element of First Nations culture.

The principle of communalism in Aboriginal culture should

not be confused with the Communist notion of collectivism:

collectivism is the collective ownership of land by the entire

community, in contrast to the capitalist notion of individual

property. Yet collectivism and private property bear greater

32 Hugo Jacqmain et al., “Proposal to combine Cree and Scientific Knowledge forimproved Moose habitat management on Waswanipi Eeyou Astchee, Northern Quebec,” ALCES (2005). Vol. 41: 150.

23


resemblance to each other than to the Aboriginal understanding of

communalism, which ought to be unsurprising given that they were

born of a common European heritage. Both European ideas are

rooted in an understanding of land as a thing over which man is

meant to be master and whose value is based on its capacity to

benefit humankind. Valuing nature for itself is understood only

as an aesthetic phenomenon – nature as a thing of beauty and

wonder. The aboriginal understanding of the natural world,

conversely, is as a living being rather than a thing; a being

possessing certain inherent rights that must be negotiated with

rather than simply mastered. According to the Iroquois “the Earth

belongs to the Creator… Property is an idea by which people can

be excluded from having access to lands, or other means of

producing a livelihood. That idea would destroy our culture,

which requires that every individual live in service to the

Spiritual Ways and the People.”33 Its intrinsic value is rooted in

the idea that nature is the physical expression of the Creator;

not a matter of beauty so much as a source of religious meaning.

Communalism extends not so much from the idea that the land is

owned by all but that land cannot be owned. This land

relationship forms the foundation for an economy emphasizing

reciprocity and community benefit, but without diminishing

respect for individual autonomy found in collectivist societies.34

33 Akwesasne Notes, ed. A Basic Call to Consciousness, (Native Voices: Summertown, TN)1991: 94.34 Kwinn H. Doran, “Ganienkeh,” American Indian Quarterly. (2002) Vol. 26, 1. In Iroquois society, for example, the Longhouse principle stipulates that consensus building among the proper representatives of each nation is necessary for exercise of political authority, and even then dissenters are

24


In terms of power dynamics, the inherent vulnerability of

First Nations state societies to domination by European state

societies is substantial. Under communalism, the decentralized

nature of political power and the incorporation of animism into

the mode of production make the expansion of military and

economic strength a slow and ponderous process. The

centralization of power in European states and the mechanization

of production meant not only that these states expanded

enormously and rapidly, becoming, in a sense people-factories,

but made coherent action by the entire state easy, while

consensus building in communalist societies was a long and

inconsistent process. Even if it could be said that communalism

produced a healthier society (the claim made by some Aboriginals)

it could not compete on terms of brute force with the strength of

industrial powers.35

The cultural principles, shared generally throughout much of

the North American continent, are articulated by each nation in

distinct ways with unique variations, and hence give rise to

complex and refined forms. It is a testament to the power of

these ideas that they have survived hundreds of years of cultural

assimilation and decimation of the populations who practiced

them. Moreover, their very persistence defies the argument that

these cultures cannot subsist in modernity.

entitled to refuse participation. 35 Lyons, Oren. “Sovereignty and the Natural World Economy,” Justice for Natives: Searching for Common Ground, ed., Andrea P. Morrison with Irwin Cotler. (McGill-Queen’s University Press: Montreal) 1997.

25


The Iroquois, who seek Nationhood, the Nisga’a, who seek

Municipal Self-government, and the Mi’kmaq, who seek Institutional Self-

government, can all make a historical strong claim that the

government of Canada never secured their consent in assuming

sovereign control over their territories or their societies. All

three peoples resisted, as far as they were able, the imposition

of Canadian control over their territories and societies. All

three nations are entitled to the right to self-determination as

it is understood in international law.

The Haudenosaunee (The Iroquois)

The Iroquois claim to Nationhood has never been relinquished;

the Iroquois representatives who spoke on behalf of the

Confederacy at the 1977 United Nations Conference on

Discrimination against Indigenous Peoples of the Americas argued

that the United States and Britain seized national territories

through fictitious claims or surreptitious appropriations. Either

land for cash treaties were signed not with any official

representative, but with any member of the nation willing to act

as a representative, or land was appropriated under the false

claim that the Iroquois Confederacy had ceased to exist.36 The

only official declaration was the abolishment of Haudenosaunee

government in 1924 on the strength of the Indian Act and the

establishment of an RCMP garrison on the Grand River territory.

The rationale for such seizures was similar to that of colonial

sentiment in the early 19th century: the political and cultural 36 Akwesasne Notes, ed.: 100-101.

26


structure of these nations could not survive the overwhelming

expansion and power of progressive, industrial civilization, and

it was only a matter of time before they vanished. It was the

responsibility of the government of Canada to absorb these

peoples into European civilization. The counterargument offered

by Iroquois representatives to the United Nations in 1977 was

that,

“[T]he world is told by colonial government propaganda

machines that the Hau de no sau nee are simply victims of

“civilization and progress.” The truth is that they are the

victims of a conscious and persistent effort of destruction

aimed at them by the European governments and their heirs in

North America. The Hau de no sau nee is not suffering a

terminal illness of natural causes – it is being deliberately

strangled to death by those who would benefit from its

death.”37

In spite of the abolishment of Iroquois government, the

Iroquois claim that they continued to employ their political

institutions even under military occupation. Through the early to

mid 20th century the Iroquois nations declined and saw their

territory and rights shaved away as neither the U.S. nor Canada

recognized the Longhouse government. The resurgence of Iroquois

society in the second half of the 20th century, brought a renewed

confidence in claiming absolute sovereignty for itself. The 37 Akwesasne Notes, ed: 105-106.

27


successful seizure of small pieces of ancestral lands, especially

at Ganienkeh in 1974 and at Oka in 1990 by the armed wing of the

movement, helped to inspire and galvanize sovereigntist sentiment

within Iroquois society. Although Iroquois politics is fragmented

among several factions (the Warrior Movement becoming the source

of much division in the 1980s as it was seen as too

fundamentalist by some) and divisions along policy lines, there

exists a consensus that the Haudenosaunee is a sovereign nation.

During the 1990 Oka standoff, the Grand Council was held at

Syracuse to represent the views of the Confederacy. This is the

traditional government, unrecognized by Canada and the United

States, who deal officially only with various councils of their

own creation. The statement produced at the Grand Council upheld

the claim of Iroquois sovereignty and the Council issued an

appeal to then Prime Minister Brian Mulroney to review government

policy with respect to the Iroquois. Mulroney commented to the

press the next day of the “bizarre” nature of the new demands,

“The laws of a civilized nation must apply to us all… there can’t

be a double standard” he declared.38

The Haudenosaunee can claim not only that their society is

capable of great endurance, (given that the Longhouse has been in

continuous use for hundreds of years before European contact,

making it the oldest active democratic body in the world) but

their political structure is as functional as any that exist

today. The Longhouse system acts as a council of nations, each of

the six nations having equal representation but with distinct, 38 Quoted in Wright, 337-339.

28


symbolic roles. The system places a great deal of emphasis on the

local autonomy of each community within the Confederacy, the

rough equivalent of provincial powers at a municipal level.

The Iroquois have argued since the beginnings of colonial

occupation that they were by their own measure and the measure of

the colonial powers, a sovereign people. From the position papers

submitted to the UN, the Iroquois claim, “Since the beginning of

time, the Hau de no sau nee have occupied the distinct

territories we call our homelands… we have long defined the

borders of our country… and have used those territories as the

economic and cultural definitions of a nation.”39 Nationhood for

the Haudenosaunee is sovereignty over all their affairs, foreign

and domestic. The colonial governments had only the fact of arms

and demographic strength as a rebuttal. Canada’s sovereignty over

the Iroquois and their territories extends only from an arbitrary

claim on such power. It is the ancient law of conquest in a

modern costume. The Iroquois are the only nation in Canada

actively seeking outright nationhood as a goal, and are also one

of the few to produce a militant faction – two features which are

likely not unconnected. Through a combination of court victories

and direct actions centered on territorial claims, the Iroquois

have won some small land concessions, but perhaps more

significantly, have caused federal and provincial governments to

develop a distaste for direct interference in the affairs of the

Iroquois. This is, in a sense, a kind of clumsy de facto autonomy,

though not one either group could be satisfied with. 39 Akwesasne Notes, ed: 80.

29


Given a history of hundreds of years of complete autonomy,

and a persistent rejection of Canadian state rule, there is no

fundamental reason to believe the Iroquois are incapable of

ruling themselves, and it is uncertain on what basis Canada (or

the United States) can reasonably claim sovereignty over them

today. The degree of sophistication and strength of Iroquois

political institutions make it likely that sovereignty could be

turned over to that nation with less difficulty than imagined.40

The Nisga’a (The Lisims government)

The Nisga’a of northern British Columbia achieved the

unprecedented concessions of the Nisga’a Final Agreement as a

result of the success of their court battles. These battles

extend back to the all-important 1973 Calder decision, which

recognized Aboriginal title as being inherent and not subject to

government fiat. Unlike the Iroquois, who claimed nothing less

than full nationhood, the Nisga’a have been willing to accept the

sovereignty of the Crown in exchange for recognized limited

rights to govern most of their own internal affairs, as well as

40 As an anecdotal example, there is the famous claim that the idea for a unionof states against the British came from Canasatego, an Onondaga chief, during treaty negotiations with the Pennsylvanians in 1744. He is recorded as saying,“We heartily recommend Union and a good agreement between you… Our wise forefathers established union and amity between the Five Nations; this has made us formidable; this has given us great weight and authority with our neighboring nations. We are a powerful Confederacy: and, by your observing thesame methods our wise forefathers have taken, you will acquire fresh strength and power.” Taking notes at this meeting was a thirty-eight year old Benjamin Franklin, who years later would argue that “it would be a very strange thing if Six Nations of ignorant savages should be capable of forming a scheme for such a union… and yet a like union should be impracticable for ten or a dozen English Colonies.” (Both quoted in Wright, 116).

30


securing a greater territory for their society. The Nisga’a

government created from the agreement has powers equivalent to

that of a province in many respects, although we will respect

Flores’ term for this arrangement as Municipal Self-Government.

Historically the Nisga’a struggled against the same

circumstances of colonial occupation and control as the Iroquois.

The Nisga’a won their case because the Supreme Court discovered

that the government of Canada had never legislated their control

over British Columbian First Nations – power had simply been

assumed at federal and provincial levels. This, as might be

expected, was unacceptable to the Nisga’a, (among many other BC

nations), when the Canadian government began imposing its policy

decisions. The Nisga’a leadership approached the government on

several occasions to protest, and the spokesman for the Nisga’a

summed up their view in 1888 when the Nisga’a were being forced

into the Reserve system:

“What we don’t like about the Government is their saying

this: “We will give you this much land.” How can they give it

when it is our own? We cannot understand it. They have never

bought it from us or our forefathers. They have never fought

and conquered our people and taken the land in that way, and

yet they say now that they will give us so much land—our own

land.”41

41 Quoted in Andrew Beynon, “The Nisga’a Land Question,” International Journal on Minority and Group Rights, 2004. 11: 261.

31


This appeal was made at the beginning of a continuous

campaign by the Nisga’a from the late 19th century to the

present to secure recognition of their nationhood from the

government of Canada. Their demand upon entering negotiations

with the province of British Columbia were a claim on 24,000 km2

of their historical territory, but in the final settlement

accepted a territory of 2,000 km2 over which the Nisga’a have

full property rights, as well as self-governing powers over

issues such as language, land use, education and policing. They

also receive hunting and other land use rights over an

additional territory of 20,000 km2, in addition to nearly half a

billion dollars in funding. The trade off is the Nisga’a will

become eligible for taxation, have ceded all other land claims

and have accepted the sovereignty of Canada.42 Edward Allen, the

CEO of the new Lisims government, has argued that the advantage

of compromise gives the Nisga’a a chance to build their society

over time, with the suggestion that in time the Nisga’a could

expand the scope of their nation.43

Much of the Nisga’a rationale comes as a response to the

more comprehensive historical attempt to obliterate First

Nations’ civilization on the West Coast than in the East. The

residential school system was used intensively on the West Coast,

even minimal treaties were not offered to most nations, and

cultural practices were made punishable offenses by law, until 42 Allen, Edward. “Our Treaty, Our Inherent Right to Self-Government: An Overview of the Nisga’a Final Agreement,” International Journal on Minority and Group Rights, (2003). 11: 234-235.43 Ibid.

32


only a few decades ago (the most notorious being the banning of

the potlatch and ceremonial dances). A missionary wrote in 1875

that the potlatch was “by far the most formidable of all

obstacles in the way of Indians becoming Christians, or even

civilized.”44 Thus, the Nisga’a must obtain the power to rebuild

their society at any cost, and after a struggle of over a

century, the Final Agreement was argued to be the best possible

basis for that chance. This reasoning, however, also reveals the

troubling aspect behind the agreement that has given rise to some

(but not many) dissenters: First Nations who go to the

negotiating table will have to give up a lot of their national

rights to get any significant concessions from Canada. Canada is

likely interested in eliminating outstanding land claims in order

to avoid future legal complications regarding title or claims

over resources, but there is little urgency from Canada’s

perspective going into negotiations. Mulroney’s statement that

there should be no “double standards” during the Oka crisis is

reflective of the position of Canadian politicians. From the

First Nations point of view, and certainly true in the case of

the Nisga’a, settling land claims is vital to preventing the

destitution of their people and societies. It is a matter of

ethnic survival, of preventing the increasing drift of Aboriginal

youth out of the reserves and into the cities, away from their

culture and absorbed into the Western way of life. Therefore the

balance of negotiations is weighted heavily in Canada’s favour,

44 Robin Fisher, Contact and Conflict: Indian-European Relations in British Columbia, 1774-1890, (Vancouver, UBC Press, 1977): 207.

33


and explains why the Nisga’a must concede so much of their claim

to secure even a modest level of municipal self-government. Some

are asking in regards to the Nisga’a agreement whether enough is

secured for a viable nation, or is Canada merely tying up legal

loose ends as it extinguishes the last possibilities of

Aboriginal self-determination within its national territories.45

Edward Allen argues that land is the key to the rejuvenation

effort: that the Nisga’a relationship to land is an essential

part of their culture, and his representation of the significance

of the land to the Nisga’a reflects the features of Aboriginal

civilization as described earlier. Allen writes, “our

relationship to the land and our governance in respect of the

land has always been one, singular and indivisible concept.”46 The

First Nations’ understanding of land as a being that cannot be

owned became a part of Canadian legal recognition when the

Supreme Court found in Delgamuukw that Aboriginal title was

“inalienable” – that is, in order to use it in a way not

according to traditional Nisga’a land use, to buy or sell it, the

title itself would have to be converted from Aboriginal title to

non-Aboriginal title.47

The Mi’kmaq (The landless Qalipu Mi’kmaq First Nation Band)

As the Nisga’a and the Iroquois have made clear, a

significant amount of territory is necessary for the

45 Paul Rynard, “The Nisga’a Treaty: Are We On The Right Track?” International Journal on Minority and Group Rights (2004) 11: 296.46 Ibid. 47 Benyon, 269.

34


reconstruction of viable First Nations societies. Without

jurisdiction over a land base, nations can neither generate an

autonomous economic foundation, nor can a “sacred relationship to

the land” have much meaning if the people continue to feel like

“strangers in their own land” (in the words of Paul Chartrand).48

The Mi’kmaq of Newfoundland, however, have elected to attempt to

preserve their culture without a territorial base, but with a

combination of rights and funding. The Mi’kmaq understanding of

land demonstrates the same animist belief of the land as a being,

and as a highly nomadic people had little conception of land as a

saleable object.49 Colonialization began during an era that saw

two plagues (likely typhus in 1746 and smallpox in 1800) that

decimated the population from an estimated 200,000 to 1,500 by

the mid-19th century – combined with the societal devastation

produced by the introduction of alcohol and sporadic attempts by

some colonists to exterminate Aboriginal people, the occupation

of Newfoundland took place at a time when the Mi’kmaq were unable

to claim their own territory.

The Mi’kmaq of Newfoundland, represented by the Federation

of Newfoundland Indians (FNI), voted to form a landless band in

2008. In exchange, they receive funding for health, education,

and economic development. Perhaps more significantly, the Mi’kmaq

receive federal recognition as status Indians, and the most basic

48 Chartrand, 93.49 Maura Hanrahan, “The Lasting Breach: The Omission of Aboriginal People From the Terms of Union Between Newfoundland and Canada and its Ongoing Impacts,” Royal Commission on Renewing and Strengthening Our Place in Canada. (2003): 219.

35


representative institutions through the creation of a chief and

council system. The Mi’kmaq agree to renounce all future legal

claims on the Canadian state regarding past or future failure to

provide benefits in relation to their Indian status.50 In essence,

the Mi’kmaq are seeking entry into the Canadian state, trading

claims to sovereignty for representation as subjects of Canada.

This kind of institutional self-government functions not as autonomy but

as participation. The adoption of the chief and council system

and the establishment of a system of federal funding is

particularly ironic, given that it is considered part of the

system of colonial domination by the Nisga’a and the Iroquois. In

spite of the acceptance of the agreement-in-principle, a split

developed between the FNI and the Ktaqamkuk Mi'kmaq Alliance and

the Conne River Band on the other, over the renunciation of land

claims. Advocates of the agreement argue there is nothing to

prevent pursuit of future land claims, and that Land claims are

difficult to pursue through the courts when you possess no legal

existence. Land claims have nonetheless been pursued over the

years by various Mi’kmaq groups and summarily rejected on a

number of occasions by the government of Newfoundland.51

50 The renunciation provisions of the agreement-in-principle are summarized as follows: “Every person who applies to enrol as a Founding Member of the QalipuMi’kmaq First Nation Band must give up any personal legal claims against Canada (past, present, or future) that seek either recognition as an Indian under the Indian Act, or damages caused by Canada’s past failure to provide benefits comparable to those available to Indians. The signed Release also requires you to opt out of any class action suit regarding Canada’s past failure to provide those benefits.” Ratification Information Booklet: Agreement-in-principle for the recoginition of the Qalipu Mi’kmaq First Nations Band. Prepared by the Federation of Newfoundland Indians (2008): 10.

36


It may be that the representation and support obtained

through the formation of a landless band will aid the Mi’kmaq in

restoring their society, perhaps best thought of as a first step

towards more ambitious objectives down the road. Yet the

considerable dependency that this band has on the Canadian state

makes it more likely that the Mi’kmaq will find little

opportunity to develop community autonomy, and without a

territorial base it is implausible that they will be able to form

their own culturally-based economic or political structures. What

is more likely is that such a process will help to preserve

Mi’kmaq identity for as many generations that retain an interest

in their heritage. The example of the Mi’kmaq is of a First

Nation with few options, and their acceptance of a landless band

arrangement emphasizes why the Nisga’a were willing to accept

2,000 km2 out of an original 24,000 km2, or why the Iroquois

occasionally seize land by armed force: there is a sense of

urgency that time and opportunity is limited for their nations.

The Mi’kmaq can make a historical claim of a vast territory

extending through New Brunswick to Nova Scotia to Newfoundland,

yet cannot even win a small reserve on the Island. For the

Mi’kmaq, mere recognition of their existence is significant

progress.

The establishment of a Newfoundland-wide Mi’kmaq band was

motivated by a half century battle by the Mi’kmaq for recognition51 One of the great paradoxes of occupation under a democratic system is that the Mi’kmaq received considerable funding for research of their land claims from the Federal government, claims which were rejected because it was not in the interests of the province to recognize them. See Hanrahan, 247.

37


by the Canadian state: when Newfoundland joined Confederation in

1949, the terms included no mention of the Mi’kmaq. Legally, they

did not exist.

Concluding Remarks

The First Nations within Canadian territory vary a great

deal in terms of their present political and economic

circumstances, and their approaches to rebuilding their societies

vary largely according to these circumstances. It is arguable

that the Iroquois possess the institutions, resources and most

importantly the declared ambition to successfully implement a

nation-state. The Nisga’a desire is to build toward greater

levels of autonomy, but accept the ultimate sovereignty of the

Canadian state. The Mi’kmaq are willing to trade rights for the

opportunity to preserve a threatened culture. At the same time,

there are significant commonalties nation-wide. Cultural features

distinct from the occupying Western culture are shared by peoples

from one end of Canada to the other: from the Mi’kmaq in

Newfoundland to the Nisga’a in British Columbia, the belief that

the Creator or Great Spirit “was personified in all things,

rivers, trees, spouses, children, friends etc.” is remarkably

prevalent.52 This belief extends to the land itself, that “the

Earth is a very sacred place.”53 Each nation clearly possessed a

52 According to prominent Mi’kmaq journalist Dr. Daniel Paul in “First Nation Law – Aboriginal Law,” (2006) http://www.danielnpaul.com/FirstNationLaw-AboriginalLaw.html (accessed April 19 2009).53 According to the Iroquois, Akwesasne Notes, ed.: 71-72.

38


distinct culture, but recognizing general cultural similarities

help illuminate the existence of an American civilization,

contrasted with the occupational European or Western

civilization. The reconstruction of First Nations’ communities,

then, requires more than an acknowledgement of their cultures; it

requires the opportunity to reassert the civilization and its

principles in which their cultures are rooted.

The road to self-government is certainly not an easy one for

First Nations, regardless. Self-government is a difficult art to

get right, especially in maintaining a healthy enough economy and

governmental infrastructure to deliver services and necessities.

Additionally, First Nations communities must contend with their

own internal political divisions and conflicts. It has been

argued by some that in the new globalized economy, self-

government could backfire on First Nations communities, forcing

them to make concessions to business interests just to stay

solvent, having a net result of accelerating the annihilation of

their own societies through economic dependency and

assimilation.54 Nonetheless, these are concerns that are the

jurisdiction of First Nations peoples, and for Canada to resolve

the question of restitution it must cede the right to make these

decisions to the First Nations themselves.

There are consequences for Canada as well, consequences that

affect Aboriginal, French and English Canada as one. The major

54 Gabrielle A. Slowey, “Globalization and Self-Government: Impacts and Implications for First Nations in Canada,” American Review of Canadian Studies 31:1 (2001).

39


shift since 1969 has been the acceptance of First Nations land

claims, and a land claims negotiation process undertaken between

governments and communities or by First Nations groups through

the courts. This has changed the dynamic of the Canadian-First

Nations relationship in that viable First Nations self-government

is now a notion to be taken seriously: having won political power

through the court system, the federal government is compelled to

negotiate with First Nations in order to prevent an unfavorable

binding decision in the courts. Just as the Quiet Revolution won

true concessions for the Quebecois, so did the Calder decision win

true negotiations for the First Nations. It is in the measure of

real power that the conditions of vulnerable and minority

populations are decided (and just the sort of power denied First

Nations by the assimilation policy). By means of significant land

claims negotiations, combined with the recovery of First Nations’

cultures and populations over the last few decades, it is now

possible to think in terms of sustainable native communities,

where before such communities were seen as doomed. These new

circumstances also have momentum of their own: the influence and

the demands of First Nations have the potential to grow over

time.

Such variables must be taken into account when weighing the

benefits and costs of ceding the right to self-determination:

they suggest that there is indeed a high political and possibly

social cost to denying the rights of First Nations that could

increase over time. In a modern, cosmopolitan society, social

40


unrest not only destabilizes the political order but the economic

order as well. A free market economy relies on confidence in

order to prosper, and an interdependent economy relies on consent

and legitimacy to function. The danger comes as the result of the

ineffectiveness of the process of absorption. Approximately one-

half of the First Nations population of Canada lives in urban

areas, and poverty and destitution among this population is

epidemic.55 To some degree the condition of First Nations people

in Canada is already at the level of a humanitarian crisis, both

on the reserves and among urban populations, and as this

population loses its roots through land buyouts, assimilation and

poverty, it will likely develop into a simple racial minority

confined to the cities and some northern communities. This would

likely create enormous social and urban planning problems for

Canadian cities over the next century, as First Nations

populations rise and become significant in places like Saskatoon,

Edmonton, Vancouver and Winnipeg. A rootless, chronically

impoverished but expanding ethnic minority in the cities would be

attached to major governmental costs in social programs and

development, in order to stem the tide of human misery on the

streets of our “world-class” cities. An accompanying rise in

crime rates and decline in real estate values would add an

economic cost to the human one. That is, unless provincial and 55 Stats Can reports some ominous indicators: while 80% of Canadian children are raised by two parents, this is true for only half of First Nations children. Additionally, half of First Nations children live in low-income households, as opposed to less than a fifth of non-First Nations children. Children constitute more than one-third of the First Nations population in Canada. 2001 Census. Aboriginal Peoples of Canada. (Ottawa: Statistics Canada 2001).

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federal governments go into the business of building 21st century

ghettos; this seems to be the purpose behind the rapid expansion

of the prison system in North America.56

While it has been noted that Canadian policy has shifted

towards self-government, this small step may be one that is too

hesitant to have the impact necessary to revitalize First Nations

in proportion to the calamities they face. If Canada does not

choose to make an urgent and sweeping effort to cede power to

First Nations communities in terms of land claims and the right

to self-determination, it may not see a dramatic decline in its

overall prosperity, but likely would suffer enormous consequences

social erosion and urban decay in the form of northern barrios.

In determining a just resolution to the question of Aboriginal

self-determination, it must be borne in mind that it is Canada

that wields the power to confer or withhold concessions of First

Nations claims to rights, land or sovereignty. To maintain a

position of control over peoples who have never ceded their

sovereignty either by treaty or by war, is to exist in a de facto

position of an oppressor; this is first among realities that

Canada must come to grips with in order to come to an authentic

conclusion regarding the question of the status of Aboriginal

people. If it is accepted that First Nations are entitled to the

56 According to Paul Chartrand some 90% of women in prison in the prairies are First Nations. He notes that likely the majority of First Nations people in prison were raised in foster homes, and that the people he met in prison had children that had been taken from them by the state and placed in foster homes. Chartrand identifies this as a vicious circle that is very difficult tobreak but is rooted in the destruction of the First Nations institution of thecommunity (p.89-90).

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respect due a to equal rather than inferior culture, and if our

common history of occupation and the appropriation of land by

means considered invalid by both First Nations and Canadian law,

then it would be appropriate for Canada to accept, in the main,

the right to self-determination as defined by the occupied

peoples themselves. Oren Lyons of the Onondaga has argued that

“Indians have always perceived themselves to be nations,

sovereign and independent.”57 Canada and Canadians must decide if

Aboriginal self-perception is valid, or if they consider

themselves in a position to decide for Aboriginal people what is

or is not valid. Ultimately power defines identity; if Canada

wishes to live up to its perception of itself as a just society,

then it is incumbent upon her to cede a due measure of her

sovereignty to peoples who are sovereign in principle if not in

practice.

57 Lyons, 215.

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Documents

The Basis of First Nations Sovereignty within the Canadian State