PURSUING JUSTICE 1951-1997

Following WWII, real gains and recognition of land claims and Aboriginal rights occurred, not through government negotiation, but

through court cases

STUDIES, HEARINGS AND PAPERS

• 1959-61 federal government Joint Committee held hearings aimed at overhauling administration of “Indian Affairs”o creation of land-claims

commissiono Pearson’s government in

1963 issued a bill to settle all outstanding “Indian claims” did not acknowledge

Aboriginal title as basis of land claims and not allow First Nations to file against provinces for land

First Nations leaders denounced bill

• 1963 federal government commissioned study of First Nations people – “Survey of the Contemporary Indians of Canada”

o also called Hawthorne Reporto noted social and economic disparities between First Nations and other Canadianso first recommendation:

integration or assimilation are not objectives which can be pursued Indian Affairs should concentrate on increasing First Nations education, their real income, and adding to life expectancy

• Government reaction to Hawthorne Report was the creation of the White Paper 1969

o official title: “Statement of the Government of Canada on Indian Policy”o report proposed repealing Indian Act and ending acknowledge status First Nations people had o denied government responsibility to Metis or Inuito storm of protest from First Nations people

sense of betrayal for consultation process strengthened resolve of Aboriginal people to work together to change relationships

• founding of new organization – Union of British Columbia Indian Chiefs (1969)o response to White Paper and need from provincial organization

• also formed – British Columbia Association of Non-Status Indians

THE CALDER CASE• from 1907, Nisga’a Land Committee

laboured to resolve claimso Nisga’a took BC to court in 1969

title never had been extinguished

filed by Frank Calder – young Nisga’a leader

Supreme Court of BC not agree with Nisga’a since Royal Proclamation not apply in BC

o to BC Court of Appeal upheld first decision

• appealed to Supreme Court of Canada 1973o did not succeed, but considered a

victory held that Nisga’a had title when

colonial government formed but split on decision of title in

the 1970s

• as result of Calder Case, federal government took renewed look at policies towards land claims

o comprehensive claim – Aboriginal rights to unsurrendered lando specific claims – redress of particular claims where federal government failed in its responsibilities

included cut-off reserves, department mismanagement of band funds

o to settle claim, had to extinguish land and resource rightso would only consider land claims, not issue of self-governmento BC still not recognize title and did not participate

• in order to submit land claimo had to prove rights to territories and their ancestors rights before European arrival

documenting traditions and histories using oral histories from Elders and archival records

• First Nations began to align into tribal councils based on common language and culture

o became the voices for federations of band councils and communities

• land claims and moved towards self-governmento took over some duties of Dept of Indian Affairso gained more autonomy and cut much bureaucracy

THE CONSTITUTION ACT

• 1980s Canada to repatriate the Canadian constitution from Britaino proposed constitution –First

Nations people to lose all Aboriginal rights

First Nations leaders took action to ensure Aboriginal and treaty rights entrenched

• one action – cross country train trip called Constitution Expresso rallying Aboriginal to protest in

Ottawao continued at UN in New York and

in Europeo attention forced Cdn government

to look again some groups against the

Aboriginal groups in constitution

some provinces some Aboriginal groups

•First Ministers conference wrote new draft constitutiono all references to Aboriginal rights removedo First Nations across Canada joined to have them reinsertedo joined forces with another group – Canadian women and rights of equality

both had concerns reflected in new constitution Section 35

•process of constitution united First Nations across the country

ROYAL COMMISSION: RESPONSE TO THE OKA CRISIS

• 1990 in Quebec province – Oka crisiso small protest over land into summer long

siegeo Quebec police to dismantle roadblock

protest of golf course expanding onto burial ground

o armed force attacked blockade, but blockade held

gunfire, tear gas, and one officer deado 78 days of armed Mohawk warriors against

Quebec police and Cdn Armed Forces finally Mohawk withdrew peacefully in

Sept without land issues settled• Oka was turning point in relationship between

Aboriginal and non-Aboriginal people in Canadao stand-off reported in newspapers, radio

and tvo possibly first time journalists sympathetic

to First Nations• did not solve immediate issue, but did focus

attention on Aboriginal issues and need for improved relationship between the First Nations and governments

• Royal Commission results 1996o many recommendations aimed at changing way government and Cdn society dealt with First Nations

one – create an Aboriginal parliament and get rid of Dept of Indian Affairs• government response – a plan for redressing wrongs of the past

o titled: Gathering Strength – Canada’s Aboriginal Action Plan o January 1, 1998, Minister of Indian Affairs Jane Stewart gave formal apology to all Aboriginal people in Canada in “Statement of Reconciliation”

also committed money to healing programs at overcoming legacy of residential schools included counseling and language training

o action plan had 4 themes1. renewing the partnership2. strengthening Aboriginal governance3. developing new fiscal relationship4. supporting strong communities

• 1990, BC finally agreed to negotiate land claimso 1993 BC Treaty Commission began negotiations

TESTING THE CONSTITUTION• many court cases tested Section 35 of the

constitution and helped to define Aboriginal rights

• Guerin case 1984o started earlier in 1950so local Indian Agent convinced Musqueam

band to lease land to golf course Dept of Indian Affairs negotiated on

behalf of band Chief Delbert Guerin learned that

lease favoured the golf course and sued federal government

• courts ruled in band’s favour, government appealed to Supreme Court of Canadao ruled federal government had a “fiduciary

responsibility” to First Nations people obligated to protect interests and

rights of First Nations• important ruling – recognized pre-existing

Aboriginal rights to land on reserves and outside reserves

THE SPARROW CASE• Ron Sparrow of Musqueam band arrested for

illegal fishing in 1984o fishing under food license but with net

longer than allowed under Fisheries Acto action changed way country looks at

Aboriginal fishing rightso Sparrow’s defence – exercising Aboriginal

right to fish laws restricting net size violated

Section 35(1) recognizing existing Aboriginal rights

o found guilty in provincial court• Supreme Court 1990

o ruled interpretation of Section 35 needed to be flexible

o Aboriginal rights are changing and not same as in past

o for Aboriginal rights to be extinguished, government must clearly state intentions

o Aboriginal fishing subject to conservation but needs to be given priority over other groups

VAN DER PEET v. THE QUEEN

• series of BC court cases in 1996 clarified Aboriginal rightso Van der Peet, Nikal, Lewis, and NTC

Smokehouse cases• Dorothy Van der Peet of Tzeachten Band of

Stolo Nation sold 10 salmon to non-Aboriginal people in 1987o charged with illegally selling fish with a

food-fishing licenseo at trial argued Aboriginal right to sell

fish right had not been extinguished

and fisheries laws violated the right found guilty and fined $50

• appealed at Supreme Court of BCo Justice Selbie ruled that the previous

judge ruled in error when saying traditional society did not sell fish

o cannot compare modern definitions of commercial fishing with economy of past

o Van der Peet had proved Aboriginal right to fish included right to sell

o to Supreme Court of Canada 1995 court decided had no Aboriginal right to sell fish and original conviction

upheld did define requirements to meet for protecting Aboriginal rights:

1. activity must have existed before arrival of Europeans2. modern activity must have been practiced continually in similar

fashion according to pre-contact fashion (although allowed in modern form)

3. must meet “integral to a distinctive culture” test must have been of central significance to the particular First Nations cannot be done by every human society

all 3 requirements referred to in other court cases• resulted in losses in other cases• Heiltsuk people able to meet requirements in Gladstone case

o traditionally trading herring spawn

DELGAMUUKW v. THE QUEEN

• 1987 two nations, Gitxsan and Wetsuwet’en of Skeena and Bulkley sued BC government for traditional territorieso argued use of resources never

been extinguishedo resource management

continues through generations• 1991 court decision dismissed

claimso First Nations lives pre-contact

were “nasty, brutish and short”o not accept evidence of oral

histories recording stewardship of land

• BC Court of Appeal 1993o reversed decision territory

rights not extinguishedo however, rights did not entitle

to ownership

•Supreme Court of Canada 1997o agreed to title to land and that trial judge in error no accepting oral histories as evidenceo ruled for new trialo suggested treaty negotiation rather than litigation

•important points in decisiono Aboriginal title more than hunting and fishing rights

right to choose how land used First Nations to be involved in decisions in use of traditional lands and resources

o Aboriginal title may allow First Nations to sell fish under food-fishing license must show controlled fishery pre-contact

acceptance of oral histories as evidenceo province has no right to extinguish Aboriginal title – only federal government can

both governments have moral (and legal) duty to negotiate issues of title in good faith