The Indian Act
The sole purpose of the Indian Act was to displace and assimilate Canada’s Aboriginal Peoples. It was consolidated from other legislation meant to force assimilation and displacement. To understand the intent of the Indian Act, one needs only look at the intent of legislation from which it was consolidated.
- The Gradual Civilization Act (1857) was drafted from the premise that by gradually removing distinctions between Aboriginal and non-Aboriginal people through enfranchisement, it would be possible to fully absorb Aboriginal Peoples into colonial society14. This act provided a mechanism for assimilation.
- The Indian Lands Act (1860) formalized procedures for surrendering Aboriginal lands and gave authority over Aboriginal people and Aboriginal lands to the colonial legislature; authority was removed from the British Parliament11. This act provided a mechanism to annex Aboriginal lands. Aboriginal People were no longer in a mutual relationship with colonists.
- Section 91(24) of the Constitution Act (1867) transferred legislative authority over Indians and lands reserved for Indians to the new federal Parliament. Aboriginal Nations no longer existed under the Crown and were not recognized in Canadian legislation. Aboriginal rights and treaties were also not recognized15. This act removed all Aboriginal rights.
- The Gradual Enfranchisement Act (1869) was the first legislation adopted by Parliament to force Aboriginal assimilation. It continued “gradual civilization” through enfranchisement but gave the superintendent general of Indian Affairs power to force Aboriginal Peoples to adopt a municipal-style government. This act undermined Aboriginal culture and forced the assimilation of Aboriginal government16.
The first Indian Act was passed in 1876. It created a legislated regulatory framework from laws that empowered displacement and assimilation. The Indian Act has remained essentially unchanged to the day of this writing17. Control over Aboriginal political structures, lands, resources and economic development through today’s Indian Act (1985) continues the unfinished policy of forced displacement and assimilation. In the words of the Royal Commission on Aboriginal Peoples (1996),
“A royal commission cannot make laws. It can inform and recommend, however. In that role, we can call attention to the factors, attitudes and continuing assumptions that brought about the Indian Act and that continue to prevent progress in moving away from the restrictive Indian Act vision. Those factors are to be found in past assumptions and the shadows they have cast on present attitudes. They must be recognized for what they are and cast away as the useless legacy of destructive doctrines that are as inappropriate now as they were when first conceived. If this review of the foundations of the Indian Act has shown these assumptions for what they are, it will have succeeded as the first step in entering a new era of partnership between governments and Indians. Paradoxically, this new partnership is also a very old partnership, indeed, older than the Indian Act and what it represents 18.”
The Indian Act (1985) is the centrepiece of legislation against Aboriginal Peoples in Canada. It:
- Violates Aboriginal rights guaranteed in the United Nations Declaration on the Rights of Indigenous Peoples (2007)19;
- Validates legislation that placed and maintains EFABs against Aboriginal rights in direct opposition to the Constitution Act (1982); and,
- Recently20, sections 6(1)(a) and 6(1)(c) of the Indian Act were found by Canadian courts to violate Aboriginal women’s rights.
The time to remove the Indian Act and provide legislation that affirms the rights of Aboriginal Peoples is at hand. Canada will need a Meaningful Consultation process to develop new legislation that respects Aboriginal Peoples.
The Indian Act (1876) included an enfranchisement process by which Aboriginal people could become full citizens, when they qualified. It did not provide a process through which a former Aboriginal person could once again become Aboriginal. Clearly, assimilation was the policy objective behind the Indian Act21.
The policy of forced Aboriginal assimilation in Canada 1 2 5 came into full force through the Indian Act (1876, 1880 and 1886) and the Indian Advancement Act (1884). Methods of forced assimilation included22:
- The abolition of Aboriginal status as independent, self-governed peoples;
- Legislated rules for band membership;
- Abolition of traditional political systems;
- Imposition of federally-controlled election systems;
- Banning spiritual Aboriginal activities;
- Formal creation of residential and industrial schools administrated by religious clergy; and,
- Mandatory school attendance for Aboriginal children with the later imposition of fines and jail sentences for parents who failed to comply.
The death toll of Aboriginal children in residential schools averaged approximately twenty-five percent23 but at the beginning of the twentieth century it was as high as fifty percent24.
The removing of children from their parents with the goal to change a people or their culture formally became the crime of genocide with the adoption of the United Nations Convention on the Prevention and Punishment of the Crime of Genocidein 194825. Article 2 of the United Nations declaration states:
Article 2: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.”
Prior to 1948, the term genocide did not exist. The recognition of the crime of genocide and the development of international law against it was the direct result of world reaction to the Jewish holocaust and other Nazi extermination policies. However, Hitler’s sterilization and extermination policies were modelled on the treatment of Aboriginal Peoples in Canada and the United States26. Genocide may not have existed prior to 1948,
“… however, the actions of Britain and the settler governments in Australia and Canada clearly demonstrated that the practice of genocide did27.”
Provincial child welfare agencies succeeded residential schools as the preferred care system for Aboriginal children28. Started in the 1950’s, they gained support from recommendations made in the federal government’s 1966 Hawthorne Report29. Aboriginal children were removed from their homes and placed into non-Aboriginal foster care or adopted into non-Aboriginal homes without voluntary parental consent. Children taken from Aboriginal communities were not necessarily placed in homes within Canada. Provincial child welfare agencies were introduced to accomplish some of the residential school purposes and were subject to some of the same types of internal child abuse problems as residential schools. As many as one in four Aboriginal children were removed from native communities and spent at least some part of their childhood away from their parent’s home.
“In many ways, the child welfare system put First Nations children under more pressure to assimilate than did the residential school system … And, with all this pressure, assimilation may have succeeded had it not been for mainstream Canadians’ racist attitude towards people who were visibly of First Nations descent. It was their visibility which prevented many First Nations peoples from being accepted in mainstream society and which, consequently, made it impossible for them to assimilate.30.”
The forced assimilation of Aboriginal Peoples in Canada tends to be referred to as both cultural genocide and genocide27 31 32 33. In 2008, Canada’s Prime Minister, Stephen Harper, apologized to Aboriginal Peoples in Canada for the Canadian policy of Aboriginal assimilation, forced removal of Aboriginal children and residential schooling34. However, Canada does not interpret its policies on forced Aboriginal assimilation as cultural genocide.
“For purposes of Canadian law, we believe that the definition of genocide should be drawn somewhat more narrowly than in the international Convention so as to include only killing and its substantial equivalents … The other components of the international definition, viz, causing serious bodily or mental harm to members of a group and forcibly transferring children of one group to another group with the intent to destroy the group we deem inadvisable for Canada- the former because it is considerably less than a substantial equivalent of killing in our existing legal framework, the latter because it seems to have been intended to cover certain historical incidents in Europe that have little essential relevance to Canada where mass transfers of children to another group are unknown35.”
There is no distinction between genocide and cultural genocide in Article 2 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide36. Enough circumstantial evidence exists that Canada engaged in each of the acts of genocide as set out in the United Nations Convention to warrant, at least, the suspicion that cultural genocide was a national policy in Canada27.
Canada needs Meaningful Consultation as a new policy in its relationship with Aboriginal Peoples. The continued destruction in part or in whole of Aboriginal Peoples in Canada has been a crime of genocide since 1948 and a violation of Canadian constitutional rights since 1982.
One perception of the policy of forced Aboriginal assimilation was as a duty to civilize Aboriginal people. Federal legislation was created that purposely designed educational systems, social policies and economic developments to assimilate Aboriginal Peoples into a better way of life. As a direct consequence of Canada’s policy on forced Aboriginal assimilation, two paths were laid out at confederation:
“… one for non-Aboriginal Canadians with full participation in the affairs of their communities, province and nation; and one for the people of the First Nations, separated from provincial and national life, and henceforth to exist in communities where their traditional governments were ignored, undermined and suppressed, and whose colonization was as profound as it would prove to be immutable over the ensuing decades3.”
Aboriginal Peoples simply had to choose enfranchisement, becoming non-Aboriginal, to enjoy full participation in the affairs of Canada.
While the Indian Act, and the administration it produced, had the objective of displacement and assimilation for enfranchising Aboriginal Peoples, most policy makers and individuals working with Aboriginal people knew nothing about that objective by the 1950’s. Non-Aboriginal Canadians simply believed that mainstream, non-Aboriginal Canada was the only worthwhile way to live in Canada; they truly wanted the best for Aboriginal individuals37. The Hawthorne Report (1966)29 and its recommendations still guide much of the federal policy derived from this benevolence towards Aboriginal Nations. In this policy, help is only available for Aboriginal Peoples if the non-Aboriginal path is chosen. Examples of this can be seen in the following recommendations from the Hawthorne Report:
- Volume 1, Recommendation 3: “The main emphasis on economic development should be on education, vocational training and techniques of mobility to enable Indians to take employment in wage and salaried jobs. Development of locally available resources should be viewed as playing a secondary role …”
- Recommendation 22: “Community development should be viewed as playing a distinctly secondary role for most Northern and isolated, small communities …”
- Recommendation 32: “The general policy of extending provincial services to Indians should be strongly encouraged …”
- Recommendation 33: “Where it is desirable to extend provincial services to Indians, this should be undertaken as expeditiously as possible. Otherwise, as a consequence of the growth in Indian population, the temptation to establish or maintain separate services will become more pronounced …”
- Recommendation 35: “Provincial governments should be encouraged to make the policy decision that Indians are, in reality, provincial citizens …”
- Recommendation 56: “All possible efforts should be made to induce Indians to demand and to accept provincial welfare services.”
- Recommendation 69: “At the present time, the Indian Act, suitably modified where necessary, constitutes the most appropriate legislative vehicle for the development of Indian local government.”
- Recommendation 74: “Reserves should be treated as municipalities for the purpose of all provincial and federal acts which provide grants…”
- Volume 2, Recommendation 1: “The principle of integrated education for all Canadian children is recommended without basic question. The integration of Indian children into the public school system should proceed…”
- Recommendation 2: “The Indian Affairs Branch should recognize a responsibility to see that integrated schooling, once embarked upon, is as successful as possible…”
The Hawthorne Report supported its policy recommendations for non-Aboriginal education, economic development, government and social welfare with recommendations for 100’s of millions of dollars in funding. Federal and provincial authorities applied many of the Hawthorne Report’s recommendations and provided funding for education, economic development, government and social welfare systems. Unfortunately, all funding was for non-Aboriginal-based streams of education, economic development, government and social welfare. No funding was provided for culture-based Aboriginal education, economic development, government and social welfare.
The Hawthorne Report paved the way for a new era in forced Aboriginal assimilation in Canada. Provincial and federal governments now provide funding to Aboriginal Peoples only if their request falls within government funding models. Funding models invariably provide funds for non-Aboriginal solutions to Aboriginal problems; problems that arose from the policy of forced assimilation. All funding for culture-based Aboriginal solutions to Aboriginal problems is denied because these solutions fall outside government program funding models. Canada is currently forcing the assimilation of Aboriginal Peoples by selectively funding only non-Aboriginal solutions for education, economic development, government, social welfare and more.
Canada needs Meaningful Consultation to provide a foundation for a new policy in its funding relationships with Aboriginal Peoples. The machinery that underlays poverty and third world conditions in today’s Aboriginal communities is the withholding of funds by federal and provincial governments for culture-based Aboriginal solutions coupled with the refusal of Aboriginal people to assimilate under the extreme financial pressure.
United Nations Declaration on the Rights of Indigenous Peoples
Canada formally announced an end to its policy of Aboriginal assimilation in June of 2008. Unfortunately, the policy of assimilation is still continued through the functioning of embedded forced assimilation barriers (EFABs). EFABs are active policies, laws, regulations and services that were created within the policy framework of forced Aboriginal assimilation to do the work of assimilation. EFABs have not been identified and removed from the legislative framework of Canada38.
In September 2007, the United Nations passed resolution 61/295, the Declaration on the Rights of Indigenous Peoples19. Canada’s EFABs cause basic Aboriginal rights guaranteed in resolution 61/295 to be withheld from Canada’s Aboriginal Peoples. Canada has and is withholding inherent rights to:
- Self-determination and self-government;
- Pursue economic, social, and cultural development;
- Own and manage lands and resources; and,
- A nationality.
The withholding of these rights prevents Aboriginal Nations from rebuilding traditional culture-based infrastructures needed to end the cycle of poverty and forced assimilation. Closed doors to Aboriginal rights coupled with open doors to non-Aboriginal, enfranchised rights are the hallmark of today’s expression of the policy of forced Aboriginal assimilation in Canada.
Canada is in apparent violation of Articles 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 18, 19, 20, 21, 23, 25, 26, 27, 28, 29, 32, 33, 34, 35, 37, 38, 39 and 40 of the Declaration on the Rights of Indigenous Peoples. Canada continues to withhold these international Aboriginal rights, through EFABs, while vast amounts of Canada’s land mass, rich in natural resources, is land occupied by impoverished Aboriginal Peoples. Canada presents Aboriginal Nations with only two alternatives, assimilate or maintain the status quo of poverty.
Under United Nations resolution 61/295, Articles 1, 3, 6, 9, 40 and 41, and resolution 217A(III) the Universal Declaration of Human Rights39 Article 15, Aboriginal Nations in Canada may now have four choices before them:
- Maintain the status quo with Canada;
- Choose another nationality and another nation as a partner; or,
- Choose to take their place as a nation directly under the protection of the United Nations.
With options three and four, large regions of land and resources will succeed from Canada. The continuing of Canada’s forced Aboriginal assimilation policy by EFABs leaves Canada with only two choices:
- Change: This will result in the removal of EFABs, affirmation of Aboriginal rights recognized in the Constitution Act (1982), reconciliation, and a new relationship between Canada and its Aboriginal Peoples.
- Refuse to Change: This will result in the continued and escalating enforcement of the policy of forced assimilation, the separation of Aboriginal Nations from Canada, and violation of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948), United Nations Universal Declaration of Human Rights (1948), Constitution Act (1982) and the United Nations Declaration on the Rights of Indigenous Peoples (2007).
To some, the notion of Aboriginal Peoples separating from the body politic of Canada is extreme and alarmist. However, on July 25, 2008, a small group of Saskatchewan First Nations signed a memorandum of understanding with Taiwan’s state-owned Chinese Petroleum Corporation to develop tarsands40. Chinese Petroleum pledged up to $800 million towards the venture.
The United Nations Declaration on the Rights of Indigenous Peoples contains a process within Articles 19 and 27 for resolving and preventing conflict between Indigenous Peoples and colonizing nations. That process is consultation.
Canada needs another relationship with Aboriginal Peoples for equitable sharing and managing of land and resources in Canada. Meaningful Consultation is an essential part of developing that new relationship. It gives Aboriginal Peoples in Canada a new, fifth, option.
Recognition of the Innu Nation
The United Nation Human Rights Committee noted in 1999 the situation with Canada’s Aboriginal Peoples was the most pressing human rights issue facing Canada41. In 2004, a report from the United Nations’ Special Rapporteur on the situation with Canada’s Aboriginal Peoples indicated Aboriginal people were still justifiably concerned over continuing inequalities and the slow pace of their constitutional Aboriginal and treaty rights recognition42. One of the most profound failures in Canada’s recognition of Aboriginal rights is with the Innu Nation in Labrador43. Canada’s treatment of the Innu raised a rallying cry from around the world44 45.
The Innu were the original fur-trading allies of the French. The Innu of Northern Québec and Labrador never signed a treaty with the French or British during Canada’s early colonization. With confederation in 1867, the Innu Nation was geographically divided between Northern Quebec and Labrador. Newfoundland and Labrador (N-L) remained under British rule until 1949 when they entered confederation. At the time of union, N-L’s Aboriginal people included Innu, Mi’kmaq and Métis. N-L had no concept in law or legislation for Aboriginal rights at the time of union and no mention of N-L’s Aboriginal Peoples was placed in the terms of union46; N–L’s Aboriginal Peoples were not recognized. A very truncated history of Canada’s recognition of N-L’s Innu follows:
- 1867: The Constitution Act gives the federal government jurisdiction over Indians and lands reserved for Indians. The Innu of N-L are not within Canada and so are not recognized in the Constitution Act. They remain a sovereign nation.
- 1876: The Indian Act comes into force. It has no application to the Innu of N-L.
- 1947-1949: Officials decide that after union, responsibility for N-L’s Aboriginal Peoples will fall to the federal government and the Indian Act will apply. However, no agreement was reached on defining responsibility for the Aboriginal Peoples of N-L47.
- 1948: The United Nations Convention on the Prevention and Punishment of the Crime of Genocide and the Universal Declaration of Human Rights are resolved and signed by Canada. The sovereign Innu Nation acquires the rights afforded to them by the United Nations’ resolutions.
- Prior to 1949: The Innu were not recognized by N-L and were a sovereign nation of Indigenous Peoples with international rights under the United Nations. There is no government department or agency responsible for Aboriginal affairs in N-L.
- 1949: The Union of N-L with Canada occurs with no mention of Aboriginal Peoples. The Innu of Labrador remain a sovereign nation with rights under the United Nations. Provincial laws and regulations are forced on the Innu.
- 1951: A national census of Aboriginal people is held but N-L is excluded. Canada introduces the concept of band lists and establishes Indian Act bands. The Innu are not included.
- 1956: Section 9 of the Citizenship Act was amended to grant formal citizenship to Aboriginal people eligible under the Indian Act and Inuit. The 1956 amendment to the Citizenship Act is made retroactive to January 1947, before Canada signed the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. The Innu of N-L are not recognized by Canada and the Indian Act. They remain a sovereign Indigenous people protected by the United Nations and its resolutions.
- 1960: Aboriginal people recognized by the Indian Act and Inuit in Canada are fully enfranchised as citizens and given the right to vote without loss of Aboriginal or treaty rights (rights recognized and affirmed later in 1982). The Innu are not recognized by Canada and maintain sovereign rights guaranteed to their nation by the United Nations.
- 1970s: The Upper Churchill hydro-electric development floods approximately 6,000 square miles of Innu land and Innu graves without prior consent.
- 1982: The Constitution Act recognizes Aboriginal Peoples as Indian, Inuit and Métis. The Aboriginal Peoples of N-L, including the Innu, are not recognized. The Innu remain a sovereign Indigenous People.
- 1989: United Nations C169 Indigenous and Tribal Peoples Convention48 is adopted. Canada refused to sign the convention. Innu of N-L fall under the umbrella of C169.
- 1990: Canada and the Innu Nation of N-L begin land claims negotiation but to the date of this writing there has been no agreement.
- 1997: Canada-Innu Transfer Agreement is signed in principle. A federal Order-in-Council authorizes Minister of Indian Affairs and other ministers to treat Innu “as if they were registered Indians living on reserves” but Innu are to continue paying tax, unlike other First Nations. Provincial programs, including education, social services, and policing, are exempt from the agreement. There is an impasse over jurisdiction and funding responsibility and the Transfer Agreement fails. The Order-in-Council placed restrictions on the Innu, not fully recognizing them as Aboriginal people under the Indian Act and did not include the Innu into the Constitution Act(1982).
- 2002: Innu begin registering for the partial implementation of the Indian Act in their communities and the creation of reserves. Innu families begin moving from Davis Inlet to Natuashish, which will be an Indian Act reserve.
- 2003: Recommendation is made to the N-L Royal Commission on Renewing and Strengthening Our Place in Canada for N-L to officially recognize all the Aboriginal Nations of N-L since they constitute nations consisting of people holding Aboriginal rights46.
- 2007: United Nations Declaration on the Rights of Indigenous Peoples is adopted. Canada refuses to sign the declaration. The Innu Nation of N-L continues under the umbrella of the United Nations without recognition from Canada.
- 2008: Prime Minister Stephen Harper apologizes to Aboriginal Peoples in Canada for the policy of forced assimilation and residential schools. Prime Minister Harper refuses to recognize the suffering of Inuit and Innu of Labrador in residential schools49.
- 2008: The Innu sign the Tshash Petapen agreement with the Government of N-L and the Energy Corporation of Newfoundland and Labrador. It is an agreement in principle for the development of the Lower Churchill River hydro-electric project and compensation to the Innu Nation for the project’s impact. To the date of writing, the details for this agreement have not been finalized and it has not been ratified by the Innu Nation of N-L.
The Innu of N-L are a nation that was not conquered and did not relinquish its land to colonization. The rights of the Innu are protected by the United Nations from a time before the union of N-L with Canada. At the time of union in 1949, Canada and Innu were separate nations. Since that time, Canada has consistently refused to recognize and receive the Innu Nation into Canada. The fact the Innu are not recognized as Aboriginal People under the Constitution Act (1982) was evidenced by the need for an Order-in-Council to extend nominal benefits under the Indian Act to the Innu. Without constitutional recognition, the Innu have no existing Aboriginal and treaty rights in Canada to recognize and affirm. The rights of the Innu are still recognized and affirmed by international law through the United Nations. The Innu are a non-extinguished, non-enfranchised nation upon whom the full force of the Canadian policy of forced assimilation has fallen. The United Nations conventions that are in full play with the Innu include:
- Universal Declaration of Human Rights (1948)
- Convention on the Prevention and Punishment of the Crime of Genocide (1948)
- C169 Indigenous and Tribal Peoples Convention (1989)
- Declaration on the Rights of Indigenous Peoples (2007)
There is no retroactive amendment to the Citizens Act regarding the Innu. As a nation, they have the right to file claim or charges with international courts for the dire treatment they have endured, and are enduring, as a nation within the nation of Canada. There is no time limitation on the prosecution of the crime of genocide except the death of individuals to be prosecuted. Articles 3 and 4 of the convention on genocide read:
Article 3: “The following acts shall be punishable:
- Conspiracy to commit genocide;
- Direct and public incitement to commit genocide;
- Attempt to commit genocide;
- Complicity in genocide.”
Article 4: “Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”
There is enough circumstantial evidence documented by the media and the United Nations to warrant an international investigation into Canada’s actions against the Innu.
Canada needs a Meaningful Consultation process to recognize the Innu Nation, affirm their Aboriginal rights and to reconcile for its treatment of the Innu.
Department of Indian and Northern Affairs Canada
Section 91(24) of the Constitution Act (1867) transferred legislative authority over Aboriginal people and lands reserved for Aboriginal people to the federal government. The earliest predecessor of the current department of Indian and Northern Affairs Canada was established in 1868. In 1876, all legislation on Aboriginal people and their land was consolidated into the Indian Act and placed under the control of INAC, in its early morphology. Principal features of INAC’s early administration were the50:
- Superintendent of Indian Affairs and his in-community Indian Agents who governed Aboriginal people using extensive powers provided by the Indian Act. Aboriginal people were not citizens and so INAC exercised the power of citizenship for them. Aboriginal People were children (wards) over whom INAC had absolute authority.
- Indian band which was a non-traditional form of government created by the Indian Act. It was imposed on Aboriginal people and controlled by INAC.
- Church Mission which focussed on teaching colonial morality so that adult Aboriginal people would become Christian, civilized and educated; assimilated and ready for enfranchisement into Canada. The mission work was administered by INAC.
- Residential schools used to force the assimilation of Aboriginal children. They were administered for INAC by other, usually religious, organizations.
The Report of the Royal Commission on Aboriginal Peoples (1996) revealed that INAC’s authority over Aboriginal people and their lands was laid on a foundation of four false assumptions; assumptions that were racist, or at best ignorant51. These four assumptions are52:
- Aboriginal people are inherently inferior and incapable of governing themselves;
- Treaties and other agreements are not covenants of trust and obligation, and, are less expensive and more acceptable tools than armed conflict. They are bureaucratic Memorandums of Understanding to be formally acknowledged but ignored when convenient. Policy, legislation, regulations and programs can run roughshod over treaty obligations;
- Wardship is appropriate for Aboriginal peoples. Actions deemed to be of benefit for Aboriginal people can be taken unilaterally without their consent or involvement in design or implementation; and,
- Concepts of development are defined for Aboriginal people by non-Aboriginal values. This applies to the individual, community and nation. This concept of development is equally applied whether to civilization and assimilation, or, resource development and exploitation of the land.
These prejudiced assumptions are a reflection of the time in which they were formed, a time of ignorance, displacement and forced assimilation. Under these conditions, bigoted assumptions prospered and became incorporated into government policies. These policies were an abuse of Canada’s fiduciary responsibility to Aboriginal Peoples enabling INAC to abuse its power over Aboriginal people and their land.
“We also draw attention to the abuse of power that took place — not just periodic unfairness, but excessive and systematic political dominance, reflected in both the processes and the outcomes of governance … Once the cycle has begun, however, cause and effect can be, and often are, interactive; abuse of power produces new ideas that are false.51″
INAC’s abuse of power reveals itself by virtue of its actions. The power abuse has two telltale attributes53:
- The crude, unjust intrusiveness of the instruments used by INAC against Aboriginal Peoples. These policy tools were not designed to guide and influence Aboriginal people. They were tools meant to invade lands, lives, families, and homes. These tools included:
- The Indian Act;
- Forced Residential Schooling;
- Forced Relocations; and,
- The unimpeded exercise of INAC’s authority and its accompanying bureaucratic refusal to change. INAC has often administered in a punitive fashion or with unconscionable use of bureaucratic power. The department should be guided by Ministerial authority but the institution that is INAC maintains its own status quo, refusing to change.
No amount of recent Ministerial or Prime Ministerial delegation has changed INAC’s policies or direction; including, the public apology given to Aboriginal Peoples by Prime Minister Harper in 2008.
“… the more intrusive the agencies and instruments of policy were, the harder they were to unravel and change. The exercise of unbridled authority leads inevitably to resistance to change and to a perverse inertia …54”
For the last 141 years INAC has had control over Aboriginal lives and lands. INAC was founded on racist assumptions which bred policies of displacement and assimilation. Some tools INAC used have changed, others have not. Until founding attitudes are removed from the institution that is INAC by removing policies, legislation, regulation, services and programs (EFABs) bred from these attitudes, INAC is incapable of working in the best interest of Aboriginal Peoples and Canada. Canada has renounced its policy of forced assimilation. INAC needs to change to meet that new policy objective. Canada can not change its relationship with Aboriginal Peoples unless INAC changes.
INAC will need to redefine its mission and responsibility within Canadian bureaucracy. The United Nations recommended4that INAC focus on human rights and use a participatory development approach in dealing with Aboriginal issues. In essence, INAC should respect national and international Aboriginal rights using a consultation process to accommodate Aboriginal rights. INAC has two choices:
- Change: INAC can become the agency Canada needs to forge new, equitable partnerships between Canada and its Aboriginal Peoples; an agency that empowers and respects Aboriginal rights through Meaningful Consultation; or,
- Maintain the Status Quo: INAC can continue to refuse change becoming ultimately accountable for hardships Aboriginal Peoples have endured through its policy of assimilation and abuse of power.
The Report of the Royal Commission on Aboriginal Peoples’ recommendation 2.3.45 states the Government of Canada should present legislation to abolish and replace INAC55. INAC needs a Meaningful Consultation process capable of respecting and reconciling Aboriginal rights with non-Aboriginal rights.
The Policy of Assimilation
The essence of the policy of Aboriginal assimilation is that Aboriginal Peoples in Canada have no rights unless they assimilate and become Canadian (enfranchisement). Canada apologized for and renounced this policy of Aboriginal assimilation on June 11, 2008. However, nothing has improved for Aboriginal Peoples, their rights have not advanced. This is because the policy of assimilation has become deeply embedded into the fabric of Canada since confederation. In practical terms, the policy of assimilation gave rise to other policies. These secondary policies, whether individually conceived or functional derivatives, dictated legislation, regulations, and services from which programs, or a lack thereof, were created. This paper has just examined eight of these policies that must change to provide a new legal basis in legislation. There are more. These secondary assimilation polices can be referred to as the “assimilate-by” policies. They are assimilate-by:
- Breach of Promise: Unfulfilled treaties deny Aboriginal rights.
- Exclusion: Creating legislation that does not recognize Aboriginal rights.
- Legislation: Creating legislation against Aboriginal rights and culture, the Indian Act.
- Cultural Destruction: Cultural genocide from residential schools and provincial child welfare agencies, the Indian Act, forced relocation and provincial education systems.
- Attrition: Selective funding and infrastructure development to support non-Aboriginal definitions of development and civilization.
- Acquisition: Crown ownership versus inherent and international Aboriginal rights to land and resource ownership.
- Apathy: Indifference to adversity caused by the refusal to recognize the Innu Nation and Aboriginal Peoples of Newfoundland and Labrador.
- Abuse of Power: INAC’s refusal to change maintaining embedded forced assimilation barriers, blocking Meaningful Consultation and preventing reconciliation.
Legislation, regulation, services, and programs, or a lack thereof, created from these secondary assimilate-by policies are the EFABs that prevent the advancement of inherent, international and constitutionally guaranteed Aboriginal rights in Canada. Many of these EFABs will be found in INAC but many others will be found dispersed throughout the legislative framework of Canada. Canada’s policy of assimilation will remain active until assimilate-by policies are identified and EFABs removed. Assuming INAC changes, one of its primary responsibilities will be the removal of EFABs through the screening of all current and future government legislation, regulations, services and programs.
Meaningful Consultation will be an essential part of the process for removing EFABs and accommodating Aboriginal rights in Canadian legislation, regulation, services and programs.
3. Need to Reconcile:
The Report of the Royal Commission on Aboriginal Peoples made a number of recommendations to the Government of Canada regarding residential schools56. Canada consequently made a Statement of Reconciliation to residential school survivors in 1998 and created the Aboriginal Healing Foundation. In 2003, the Government of Canada launched a Dispute Resolution plan to compensate survivors that fell far short of the expectations of Aboriginal Peoples in Canada. In response, the Assembly of First Nations, with Grand Chief Phil Fontaine, launched a class action lawsuit in 2005 against the federal government. As a settlement in that case, the Government of Canada signed the Indian Residential Schools Settlement Agreement (IRSSA) in 200657.
The IRSSA was implemented on September 19, 2007. Included within the IRSSA was schedule “N”, the mandate for a truth and reconciliation commission (TRC)58. The TRC began its work on June 1, 2008. Prime Minister Stephen Harper announced the start of the work for the TRC when he, and leaders for every major political party in Canada, apologized to Aboriginal Peoples for the residential schooling system. They decreed there was no place left in Canada for the policy of forced Aboriginal assimilation.
The TRC ran into trouble within a few short months of its commencement with the staggered resignation of appointed commissioners and INAC’s replacement of its executive director. In testimony before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, the new bureaucratic executive director of the TRC, Aideen Nabigon, admitted that $3.4 million in funds would be used before the TRC would start its work and that there was no mandate for a final report from the TRC. If a final report was prepared, it and a mandated interim report would be subject to revision by the Minister of INAC before presentation to Parliament. Ms. Nabigon indicated that the TRC’s goal was solely to lay a foundation for reconciliation, there was no goal for reconciliation59.
Reconciliation is the act of reconciling where, in this instance, to reconcile is to restore, repair or make good again to achieve a settlement. The TRC’s mandate does not include reconciliation but Aboriginal Peoples need a process of reconciliation to achieve settlement. There is no mechanism currently in place that will result in the change needed to restore lives destroyed by the policy of forced Aboriginal assimilation and its residential schooling tool. Nothing has changed since the IRRSA was signed to the date of this writing.
Aboriginal People need to be given back tools taken from them through which solutions can be built; tools destroyed by the policy of forced assimilation. These tools are normally found within societal infrastructure. Unfortunately, poverty and despair were created in Aboriginal Nations because the policy of forced assimilation destroyed the evolution of Aboriginal infrastructure, preventing today’s solutions from coming through culture-based Aboriginal infrastructure. Core Aboriginal infrastructures that have been completely or partially destroyed include:
- Trade and commerce;
- Traditional Food;
- Resource Management;
- Government; and,
Now that Canada has acknowledged the carnage caused by the policy of forced Aboriginal assimilation, Aboriginal Peoples are left with absent, insufficient or inappropriate infrastructure in each of the areas that Aboriginal infrastructures should have developed to keep pace with the changing needs of Aboriginal citizens. Nothing will change for Canada’s First Nation, Inuit, Innu and Métis Nations until missing culture-based Aboriginal infrastructures are restored and harmonized into both the Canadian and global systems38. When this is done, reconciliation in Canada with Aboriginal Peoples will be achieved. Traditional, culture-based Aboriginal infrastructure can be reconciled through Meaningful Consultation.
Need for an Aboriginal Culture Database
To affirm Aboriginal rights, Canada needs to:
- Recognize Aboriginal law, regulation and roles; and,
- Respect Aboriginal law, regulation and roles in Canadian law and regulation.
To recognize and respect Aboriginal law and regulation, Canada needs to know and understand Aboriginal culture. Unfortunately, Canada’s policies have been centred on forcing assimilation and not on learning Aboriginal culture. Canada needs a focussed database on Aboriginal law and regulation as part of the process to affirm Aboriginal rights.
Recommendations 1.7.1 and 1.7.2 in the Report of the Royal Commission on Aboriginal Peoples56 called for Canada to fund and create a historical database by 2016 that reflected Aboriginal Nations in Canada. The commission recommended that creation of the database respect:
- The right of Aboriginal Peoples to represent their culture and history; and,
- The diversity of Aboriginal Peoples, regions and communities.
To accomplish this, Canada will need a consultation process that can facilitate Aboriginal Peoples’ sharing of their culture and history across the country.
The database called for by the Royal Commission on Aboriginal Peoples would include generalities of Aboriginal law and regulation but without specific tasking, it would not provide enough detail on Aboriginal law and regulation to affirm Aboriginal rights in Canadian law and regulation. Canada needs a consultation process that can also provide detailed meaning to Aboriginal law and regulation.
A nation can be functionally defined by its laws and regulations (Nation = Law + Regulation). For simplicity, a nation is a body of people sharing a common culture. A nation’s culture is defined by its traditions and customs (Culture = Tradition + Custom). If one steps out of the twenty-first century’s political vernacular and uses the terminology of an oral history-based nation, traditions are laws and customs are regulations. In this context, a nation can be defined by its traditions and customs. Connecting the dots, one sees that, Nation = Culture = Tradition + Custom = Law + Regulation. In practical terms, for Canada to respect:
- Aboriginal Nations, Canada must respect culture;
- Aboriginal Culture, Canada must respect Aboriginal law and regulation; and,
- Aboriginal Law and Regulation, Canada must respect tradition and custom.
With these simple equations, the functional key to a consultation process is defined. Canada must focus consultation with Aboriginal Peoples on culture, tradition and custom, to obtain an understanding of Aboriginal law and regulation. With a database on Aboriginal tradition and custom, Canada can ensure its laws and regulations respect Aboriginal laws and regulations. With mutual respect of law and regulation, Canada can affirm Aboriginal rights, reconcile with Aboriginal Peoples and respect Aboriginal culture.
A database on Aboriginal culture will provide the knowledge base necessary for governments and industry to build infrastructure that respect Aboriginal rights. Respectful infrastructure will reconcile Aboriginal rights with the interests of government, industry and other Canadians.
SEPT 15, 2012
Residents Under Secret O.P.P. Surveillance
Plainclothes O.P.P. Spies Caught Lurking at Amid Local Residents and Working With Walton Development Group
Watlon Executives John Plastrias & Jason Child Attempt to Hide From Justice Amid Suspected O.P.P. Plainclothes Cops (who are now accused of perverting justice by permitting corporate ‘officers’ to evade service and flout the rule of law / civil procedure)
First Nations Under Surveillance
Harper government prepares for Native “unrest”
Documents obtained by Access to Information requests reveals that almost immediately upon taking power in 2006, the Department of Indian and Northern Affairs Canada (INAC) was given the lead role to spy on First Nations. The goal was to identify the leaders, participants and outside supporters of First Nation occupations and protests, and then to closely monitor their actions.
To accomplish this task, INAC established a “Hot Spot Reporting System.” These weekly reports highlight all those communities across the country that engage in direct action to protect their lands and communities. They include bands from the coast of Vancouver Island to the shores of the Atlantic Ocean.
What we see in these documents—from the hot spot reports themselves, to the intelligence-sharing between government and security forces—is a closely monitored population of First Nations, who clearly are causing a panic at the highest levels of Canadian bureaucracy and political office.
In 2006, INAC gave the name”hot spots” to those First Nations conflicts of “growing concern” due to “unrest” and increasing “militancy.” In a briefing presentation that INAC gave the RCMP that year, they identified certain communities as hotspots: Caledonia, Ontario (Douglas Creek Estates occupation); Belleville, Ontario (Montreal/Toronto Rail Blockade in sympathy to Caledonia); Brantford, Ontario (Grand River Conservation Authority Lands); Desoronto, Ontario (Occupation of Quarry); Grassy Narrows (Blockade of Trans Canada Hwy by environmentalists); and Maniwaki, Quebec (Blockade of Route 117).
But the “hot spot binder” prepared each week by INAC officials closely monitors any and all action taking place across the country and names dozens more communities as sources of potential unrest. A particular concern of the federal government is that these “hotspots” are unpredictable. ‘Hotspot’ protests are generally led by what the federal government labels “splinter groups” of “Aboriginal Extremists.” As INAC describes in the same presentation to the RCMP:
Incidents led by splinter groups are arguably harder to manage as they exist outside negotiation processes to resolve recognized grievances with duly elected leaders. We seek to avoid giving standing to such splinter groups so as not to debase the legally recognized government. Incidents are also complicated by external groups such as Warrior Societies or non-Aboriginal counter-protest groups.
Telling in the INAC statement above is that the identified protests are “outside of negotiation processes” with elected councils. Canada is clearly spooked by the spectre of First Nations demanding Crown recognition of Indigenous sovereignty and self-determination, as well as Aboriginal and Treaty Rights, beyond the narrow confines of Crown land claims and self-government policies. These so-called “splinter” groups also threaten the status quo by demanding their own First Nation leaders, staff and advisors to pull out of the compromising negotiations
Judging from the INAC briefing to the RCMP, Indian Affairs now operates less as an institution of reconciliation and negotiation and more as a management office to control the costs of Native unrest.
In addition to hotspot reporting, the Deputy Ministers of Public Safety Emergency Preparedness Canada and INAC directed that a summer operational plan be prepared in 2006 to deal with Aboriginal occupations and protests. A progress report on the operational plan reveals the blueprint for security integration on First Nations issues.
The Standing Information Sharing Forum, for example, is chaired by the RCMP and includes as its members the Canadian Security Intelligence Service (CSIS), the Department of Fisheries, Government of Canada, Natural Resources Canada, Transportation Canada, and involves weekly conference calls and continuous information dissemination by INAC to its partners.
The inclusion of these government departments at the Information Sharing Forum should also alert us to the commercial threat of Aboriginal resistance to the free trade agenda.
Aboriginal people who are defending their lands are now treated on a spectrum from criminals to terrorists. Under Harper, an intensification of intelligence gathering and surveillance procedures now govern the new regime.
Haudenosaunee/Six Nations Iroquois Confederacy
The reports mention “Warrior Societies” and an “illicit agenda” referring at several points to concerns around smuggling. The federal government deems the tobacco/cigarette trade as “illicit” because Canada is not getting paid taxes by the Mohawks who are operating the businesses.
However, the 1995 federal Aboriginal Self-Government policy, which was developed unilaterally by the federal government, does not allow First Nations to share jurisdiction with government over trade and commerce matters. The federal self-government policy only allows small business operations on-reserve. Historically, the federal government has used the Indian Act to control and manage on-reserve economic development to prevent adversarial competition with surrounding non-Indian businesses and towns. For example, On the prairies, First Nations agriculture was undermined and led to the failure of farming on-reserve because of complaints from non-Indians. This policy of non-competition is still the reality today.
The federal government is particularly concerned about the Haudenosaunee/Six Nations Iroquois Confederacy actions at Caledonia. As the INAC 2006 report describes it:”Caledonia was and remains a significant event in risk management.”
The RCMP agree. In a 2007 report to CSIS, they state: “Caledonia continues to serve as a beacon on land claims and Aboriginal rights issues across Canada.”
The Canadian government is extremely worried about First Nations taking back lands and resources outside the scope of their one-sided land claims and self-government “negotiation processes,” as was done at Kanenhstaton/Caledonia.
In order to contain the situation, the Crown governments have dispatched hard-nosed, experienced negotiators who have presented fixed negotiating positions from the Harper government, which is likely why there hasn’t been any negotiated resolution of the situation at Kanenhstaton/Caledonia to this date. The Crown government obviously remains worried more lands will be “occupied” by the Six Nations “extremist” “splinter groups.”
Ever since the 1990 stand-off in Kanesatake and Kahnawake, the federal government, the security and police agencies, and the Canadian army have been worried about a repeat of coordinated First Nation political actions across Canada.
The 2007 National Day Of Action
Specific information about policing First Nations was obtained in a series of Access to Information requests about the AFN National Day of Action that took place on June 29th, 2007. A 2007 RCMP brief to CSIS lays out a number of concerns regarding the National Day of Action. The RCMP were mainly concerned with protecting their men and women in uniform from First Nations protesters who confronted the police on the front lines. They were also concerned, by the bad public relations that might result from a particularly heavy handed approach to protesters at the event: “The often disparate and fractured nature of these events can lead the police to become the proverbial meat in the sandwich and the subject of negative public sentiment.”
The RCMP also show concern that a lack of coordination, or “a fractured and inconsistent approach” by police forces, could “galvanize Nations throughout Canada.” In response, cooperation between departments, security forces, and ministries are deemed to be necessary to provide a strong united front against First Nations protest.
The RCMP also caution that “Aboriginal and non-Aboriginal extremists often see these events as an opportunity to escalate or agitate the conflict.” By inference, we can guess that they may be referring to groups unaffiliated with the Assembly of First Nations (AFN), unwilling to negotiate under Crown policies, or prepared to engage in tactics not sanctioned by the official leadership, such as property destruction and armed conflict. Non-Aboriginal groups are also cited here as potentially threatening, giving credence to recent targeting of G20 “ringleaders” who feel their Indigenous solidarity work has made them targets of the Crown and police forces.
Cost is a serious concern to the RCMP as well. The price tag for policing these nation-wide events is “exorbitant” and therefore can lead to rash policing decisions where force is used in order to bring a quick end to conflicts. The economic risks of blockades are themselves potentially catastrophic. As the RCMP warn, “The recent CN strike represents the extent in which a national railway blockade could effect the economy of Canada.”
The RCMP also express this curious concern: “The police role may be complicated by the conventional and sometimes political view that there is a clear distinction between policy and police operations.” Clearly, where the distinction slips between police and policy roles, the RCMP become simply Indian Agents, carrying out the colonial work of the department. Given the information disclosed here, this distinction is impossible to maintain. Where police intimidate and arrest Indigenous peoples on their own lands, there is no law on the police’s side.
There is also a considerable public relations issue at stake here. The RCMP displayed concern at the potential fall-out of a number of “perception” problems that could befall the forces:
Perception of a two-tiered approach to enforcement can generate significant criticism and motivate non-Aboriginal activists.
An intense and protracted event may lead to long-standing erosion of relationships for the police and the community—they are usually always the victims.
Because there are limitations on what the police can negotiate and success often depends on others, the role of the police can become frustrating.
It appears as though the RCMP realize to some extent that they must choose between First Nations approval of their policing tactics and the wrath of a public convinced that blockades are criminal, rather than political acts. The police, however, contrary to their assertions, are not the victims here. They are just the dupes in a much older game of cowboys and Indians.
The above RCMP statements show that even with federal financial and managerial control over First Nation Chiefs and Leaders, the same Chiefs and Leaders were still not trusted by the federal government.
One insight emerges strongly here: most threatening of all to security and government forces is coordinated First Nations action. At one point in the 2007 INAC to RCMP briefing, concern is expressed about a First Nations conference because, “The 2006 Numbered Treaty Conference proposed a ‘national’ movement of independent actions to express discontent.”
The concern is obvious in the documents where the government follows the trajectory of the Day of Action. It was first proposed by Chief Terrance Nelson at the Assembly of First Nations’ general assembly, where the motion carried. After having been approved at the AFN general assembly the nation-wide day of action was later confirmed in a personal meeting between the RCMP Commissioner and then-National Chief Phil Fontaine. “Mr. Fontaine expressed his concern over the sense of frustration that seems to exist among First Nation leaders and the growing resolve to support a June 29th blockade,” a memo states.
The growing unrest, of course, cannot be resolved through greater coordination of security and government forces. First Nation frustration with this strategy will only continue to mount.
Crown Reward-Punishment System Divides Leaders and People
If coordinated action gets the goods, special attention must be paid to the government’s particular interest in “splinter” groups.
Under Canada’s colonial system, the struggle for Indigenous sovereignty, self-determination, Aboriginal and Treaty rights has historically been undermined by First Nations who cooperated with the Crown government turning in those members of First Nations who were resisting the Crown’s colonial system.
Over time this evolved into the Crown dividing First Nations into the “progressive” Indian Bands and the backward or “traditional” Indian Bands. Through its various Indian Affairs departments the federal government developed an approach to reward the “progressive’ Indians and punish the “traditional” Indians.
This federal reward-punishment approach still exists, although the “Indian Agents” have been replaced by Band Councils who now do the job of delivering Crown programs and services to their community members. Funding for Band Councils and other First Nation organizations’ is tightly controlled by the federal government’s bureaucracy through a system of legislation, policies, terms and conditions.
The First Nations Chiefs and Leaders who become more known and prominent are largely the individuals who have been trained and supported by federal bureaucrats. These individuals become known for their seeming ability to get federal funding for First Nations’ projects.
However, many of these individuals depend on federal support to advance their political careers. This is the reward system at work. Those Chiefs and Leaders who do not cooperate with the federal government often have their funding requests ignored or given less precedence. In some circumstances the federal government will even support “splinter” groups to take out the offending Chief or Leader. A current prominent example of this is the Algonquins of Barriere Lake in Western Quebec, but this also occurred historically at the Six Nations Grand River Territory.
The INAC and RCMP documents make it clear that while the Canadian State Security Apparatus is concerned by “splinter” groups, they are also apprehensive even when dealing with the current Aboriginal establishment. The reports indicate a belief that Chiefs and Leaders from Indian Act Band Councils and First Nation establishment organizations like AFN and their Provincial/Territorial Organizations have the potential to become Aboriginal “extremists.”
What the INAC and RCMP briefings show is that there needs to be unity on the ground with coordinated political actions between First Nations Peoples in order to protect, defend and advance First Nation pre-existing sovereignty, and First Nation Aboriginal and Treaty rights to lands and resources. Divide and conquer tactics can only be met with new strategies of alliance-building, and by bringing the leadership back down to the land.
Russell Diabo is a member of the Mohawk Nation at Kahnawake, Quebec, and a policy advisor. Shiri Pasternak is a Toronto-based writer, researcher and organizer. An earlier version of this article appeared in the Mediacoop.ca and the First Nations Strategic Bulletin.
Know your limits. Cultural taboos go where legislation fears to tread – in limiting freedom of speech.
What brings out the paid trolls?
Harper Conservatives to use social media to woo Canadians:
Are Right-Wing Libertarian Internet Trolls Getting Paid to Dumb Down Online Conversations?:
US spy operation that manipulates social media: