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The Quest for Justice

The Quest for Justice: Aboriginal Peoples and Aboriginal Rights

Menno Boldt
J. Anthony Long
in association with Leroy Little Bear
Copyright Date: 1985
Pages: 463
  • Book Info
    The Quest for Justice
    Book Description:

    It contains some twenty-three papers from representatives of the aboriginal people's organizations, of governments, and of a variety of academic disciplines, along with introductions and an epilogue by the editors and appendices of the key constitutional documents from 1763.

    eISBN: 978-1-4426-5776-2
    Subjects: Sociology

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Preface
    (pp. ix-2)
  4. Introduction
    (pp. 3-14)

    The issue of aboriginal rights is now firmly entrenched on the public-policy agenda in Canada. The constitutional status of aboriginal peoples and the constitutional affirmation and recognition of aboriginal rights commit both present and future generations of Canadians to seek a resolution of the issue. The issue subsumes difficult questions about the political, legal, and constitutional steps that should be taken to redress historic injustices to Canada’s aboriginal peoples and, on a broader scale, how aboriginal people as culturally distinct ethnic groups should relate to the larger society.

    The aboriginal peoples of Canada are defined by the Constitution Act (1982)...

  5. 1 Political and Philosophical Perspectives on Aboriginal Rights by Indian, Inuit, and Metis Leaders

    • Introduction
      (pp. 17-18)

      The purpose of section introductions in this book is not to represent or criticize the authors’ perspectives. The authors speak for themselves and all papers deserve to be read in their entirety. In the introductions we will briefly identify selected salient themes, perspectives, and issues that interest us in the contributions, and we will attempt to ‘tease out’ some of the connections among the diverse perspectives presented in the collection.

      In this section native leaders discuss aboriginal rights. The first four authors (Lyons, Ahenakew, Plain, and Snow) speak from the status Indian perspective; Ittinuar from the Inuit point of view;...

    • Traditional Native Philosophies Relating to Aboriginal Rights
      (pp. 19-23)

      The issue of aboriginal rights presents a difficult problem for the governments of Canada. Statements are issued by government ministers about what aboriginal rights are; batteries of lawyers are running about trying to define aboriginal rights; constitutional amendments are passed. Do we have aboriginal rights or don’t we? Lawyers talk about the issue as though they understand it, and judges make decisions about it, but afterwards everyone asks, ‘What did he say?’ No one knows. Aboriginal rights must exist, or else the Canadian and provincial governments wouldn’t be so worried about them.

      Aboriginal rights were given to us by the...

    • Aboriginal Title and Aboriginal Rights: The Impossible and Unnecessary Task of Identification and Definition
      (pp. 24-30)

      The most precious aboriginal right of the First Nations is the right to self-government. Just as the wording of section 91(24) of the Constitution Act, 1982 refers to ‘Indians and lands reserved for the Indians,’ the concept of First Nation self-government is usually understood to mean two broad groups of jurisdictions: each First Nation governing its own people and their affairs, and governing their land and its use. Traditionally among First Nations, these two concepts are combined. The Creator gave each people the right to govern its own affairs, as well as land on which to live and with which...

    • A Treatise on the Rights of the Aboriginal Peoples of the Continent of North America
      (pp. 31-40)

      I want to deal in this paper with our understanding of the meaning of ‘aboriginal rights.’ First of all, I want to quote from a paper produced by the Union of Ontario Indians in 1970. I was president of the union at that time, and I authorized the following statement, which was presented to a special committee dealing with the constitution of Canada.

      As Indian people we will always see our special status and our legal right as flowing from the original sovereignty of our nations. The colonial legal system to a large degree denied that sovereignty, but they never...

    • Identification and Definition of Our Treaty and Aboriginal Rights
      (pp. 41-46)

      These are difficult and trying times in our history. We have been in difficult situations before, but today we have come to perhaps the most critical crossroads in our lives. Today we are being asked to spell out our Indian rights in a foreign language – the English language – in constitutional form. We are accustomed to talking about our rights in our own languages with our elders. Because of problems in interpretation we have always been in a weak position in our dealings with government. We have experienced an additional disadvantage because we have had to pursue our rights...

    • The Inuit Perspective on Aboriginal Rights
      (pp. 47-53)

      Any discussion of the Inuit perspective on aboriginal rights must begin with the recognition that we have existed as a distinct people in the North for thousands of years. We have maintained our own culture, our own religion, our own economy, our own language, and our own decision-making structures. Our long survival in one of the harshest environments in the world should attest to the viability of our culture. To put our historical experience in more contemporary terms, one could say that we have exercised our aboriginal rights freely for countless generations. In the context of the present discussions over...

    • Aboriginal Rights and Land Issues: The Metis Perspective
      (pp. 54-61)

      Legal terms relating to the rights of the aboriginal peoples of Canada have often been used interchangeably. ‘Aboriginal title,’ ‘Indian title,’ ‘native title,’ ‘usufructuary rights,’ and ‘aboriginal rights’ have at one time or another been used to attempt to describe the rights the colonizers felt aboriginal peoples possessed.

      In the early 1500s, after America became known to the Europeans, several writers and theologians spoke on behalf of the Indian peoples. They stated that Indians, although heathens and non-Christians, nevertheless were capable of ownership of land and had sovereignty over their territories. Spain, Portugal, France, and England did not accept these...

    • Aboriginal Rights: The Non-status Indian Perspective
      (pp. 62-68)

      To ask ‘What is the non-status Indian perspective on aboriginal rights?’ is to admit to a basic misunderstanding of aboriginal title. Aboriginal rights flow from aboriginal title. All the descendants of the original occupants of the land retain aboriginal title to the land as well as the rights that flow from that title. This will always be the case because no generation or special group has the right to sign away the rights of any future generation. Even if land claims are resolved today, the future descendants of the original occupiers of the land will be entitled to negotiate their...

  6. 2 Aboriginal Rights in the Constitutional and Policy-Making Processes

    • Introduction
      (pp. 71-72)

      The 1982 constitutional accord formally signalled the end of the exclusive relationship that historically existed between status Indians and the federal government. The policy and process of integrating Indians into provincial political, administrative, economic, and social institutions has been in evidence since the Second World War, and was fuelled by the 1969 federal government White Paper. However, the Constitution Act, 1982, which entrenches existing aboriginal and treaty rights, represents a watershed in Indian–Canadian relations because it set these relations on a course that now requires formal participation by the provinces in the development of future Indian policy. This change...

    • Aboriginal Rights in the Constitutional Process
      (pp. 73-82)

      In this paper I will briefly review the key events relating to aboriginal rights as I saw them in the constitutional process during the period of patriation from about 1978 to 1982. Unfortunately, most of the activities took place without any written transcripts or minutes of proceedings, so I will present my version of the key events that transpired during that period. Second, I will consider some questions regarding the section 37 conferences, and offer some advice based on my experience with the constitutional discussions. As I reflect on the constitutional proceedings, I realize how frequently the arguments were circular,...

    • An Alberta Perspective on Aboriginal Peoples and the Constitution
      (pp. 83-113)

      This essay has three distinct but related purposes. It provides a historical account of events of the aboriginal constitutional process during the period between November 1981 and March 1984. It provides an analysis of particular events and an interpretation of certain sections and amendments to the Constitution Act, 1982. Needless to say, this analysis is not exhaustive or entirely unbiased. As Nietzsche put it inThe Will to Power, ‘There are no facts, everything is in flux, incomprehensible, elusive; what is relatively most enduring is – our opinions.’ As in most such analyses, a particular perspective is presented. In this...

    • The Hidden Constitution: Aboriginal Rights in Canada
      (pp. 114-138)

      Most countries have a national myth – an account that purports to relate the central events of a country’s history in compressed form, that explains how the country has come to be and what it stands for. National myths are useful and perhaps indispensable ways of making the complex past relevant to the perplexing present. They provide the framework for much historical writing, and subtly influence lawyers and judges on constitutional issues. All national myths involve a certain amount of distortion, but some at least have the virtue of broad historical accuracy, roughly depicting the major forces at work. The...

    • Federal Difficulties with Aboriginal Rights Demands
      (pp. 139-147)

      In this paper I will identify the major reasons for the federal government’s difficulties in dealing with aboriginal rights demands from native groups. I will provide some observations on this complex issue, and I will illustrate them with references to the evolution of ‘native policy’ in the 1970s. I see aboriginal rights as a political not a legal matter, and I understand ‘aboriginal rights’ to be a broader term than ‘aboriginal land rights.’ First, however, I will define what I mean by native policy and aboriginal rights.

      In my view, the major federal policy innovation of the past decade with...

    • Statement by the Prime Minister of Canada to the Conference of First Ministers on Aboriginal Constitutional Matters, 8–9 March 1984
      (pp. 148-156)

      A study the government made a few years ago of the conditions of the Indian peoples presents a sorry state of affairs.

      Their life expectancy is ten years less than for the population as a whole.

      Violent deaths are three times the national rate. Suicides, particularly in the 15–24 age group, are more than six times the national rate.

      Between 50 and 70 per cent receive social assistance.

      One in three families lives in overcrowded conditions. Less than 50 per cent of Indian houses are properly serviced, compared to a national level of more than 90 per cent.


    • Notes for an Opening Statement to the Conference of First Ministers on the Rights of Aboriginal Peoples
      (pp. 157-164)

      It is an honour and an important duty for me to participate with you in this unique undertaking, this conference of first ministers on constitutional matters relating to the Inuit, the Indians, and the Metis of Canada. Although many of you have attended the two previous conferences, this is my first. As such, I want to set out my objectives for what I consider to be an essential undertaking for our federation.

      It is not my intention, nor that of the new federal government, simply to follow the course which has been charted before. I believe there is new ground...

    • Tribal Philosophies and the Canadian Charter of Rights and Freedoms
      (pp. 165-180)

      On 17 April 1982, the Canadian government proclaimed the Constitution Act, incorporating the Charter of Rights and Freedoms. In introducing the Charter the Canadian government was inspired by its liberal-democratic cultural and political tradition. From this perspective the provisions of the Charter are deemed to be progressive and beneficial for all Canadian citizens, but especially for members of disadvantaged minority groups. It is ironic, therefore, that the Charter’s severest critics have been native Indians, the most disadvantaged of Canada’s minorities.¹ In this paper we will probe into the philosophical, social, and political ideas that underlie the objections raised by Indian...

  7. 3 Historical and Contemporary Legal and Judicial Philosophies on Aboriginal Rights

    • Introduction
      (pp. 183-184)

      Although recent efforts by aboriginal peoples to gain recognition for their definition of aboriginal rights have centred on the constitutional process, Indians in Canada have on a number of occasions sought such recognition in the courts. Some of the court decisions have been helpful to Indian claims, but overall the courts have not validated Indian definitions and interpretations of aboriginal rights.

      The papers in this section provide historical and contemporary perspectives on the status of aboriginal rights in European and North American law. From the first colonial administrations to the present, the courts have consistently decided aboriginal-rights cases in the...

    • The Doctrine of Aboriginal Rights in Western Legal Tradition
      (pp. 185-220)

      The role of law in the development of the democratic state was created to guarantee the supreme goods of social life, order, and freedom to all people. Public laws were necessitated by the enmity of peoples competing for scarce resources and reinforced by the need for collaboration that marks social existence. Public rules placed limits on the pursuit of private ends, thereby ensuring that natural egoism and desires would not turn society into a free-for-all in which everyone and everything was endangered. This was called the principle of order. Public laws also facilitated mutual collaboration by granting the power to...

    • Canadian Legal and Judicial Philosophies on the Doctrine of Aboriginal Rights
      (pp. 221-229)

      The doctrine of aboriginal rights is fairly well established in the United States, but not in Canada. Aboriginal rights can be defined in terms of political, social, or constitutional theory. Unfortunately, Canadian law has no complete theory of aboriginal rights. Canadian courts have not recognized the rights of any aboriginal group in this country, nor have they expressed much interest in defining aboriginal rights. The new constitution recognizes and affirms ‘existing’ aboriginal and treaty rights, yet neither the government nor aboriginal groups are able to say precisely what those words mean. Whether that inability is an imperfection, an immaturity, or...

    • Metis Aboriginal Rights: Some Historical and Contemporary Problems
      (pp. 230-246)

      After long and bitter controversy, amendments to the Canadian constitution approved in 1982 have entrenched the aboriginal status of the Metis. The relevant sections are 25 and 35:

      25 The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including

      (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and

      (b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada...

  8. 4 Negotiated and Supranational Approaches to Securing Aboriginal Rights

    • Introduction
      (pp. 249-250)

      The papers in section 2 provided an overview of the almost incomprehensible complexity associated with efforts to achieve meaningful recognition for aboriginal rights through the constitutional process. In section 3 the writers gave us a pessimistic analysis of the prospects for achieving recognition of aboriginal claims through court action. In this section, alternative approaches to achieving aboriginal rights are considered and evaluated.

      Gurston Dacks, Billy Diamond, and Leon Mitchell propose that aboriginal leaders should shift their goal from seeking to enshrine the principles of aboriginal rights in the constitution and in law to negotiating for the substance of aboriginal rights,...

    • The Politics of Native Claims in Northern Canada
      (pp. 251-264)

      The native claims settlement process north of sixty degrees is glacial: it advances very slowly and, like the glaciers, will leave a profound social, economic, and political mark on the North for generations to come. Until the claims are settled, it will be difficult for northern political institutions to develop. Native people have stated that their claims must be settled either before or as part of any process of institutional development in the North. Significant devolution of power to the territorial governments will be resisted by native people who interpret such moves as undermining their claims. If Ottawa disregards this...

    • Aboriginal Rights: The James Bay Experience
      (pp. 265-285)

      Aboriginal and treaty rights of the aboriginal peoples of Canada are recognized and affirmed by the Constitution Act, 1982. A series of conferences on constitutional matters directly affecting the aboriginal peoples of Canada is under way. Thus, the definition of aboriginal rights, their extent, and how they are to be dealt with are part of an ongoing process. I propose to present a short history of some of the principal factors relating to aboriginal rights that were involved in the complex James Bay settlement.

      The area traditionally occupied by my people, the James Bay Crees, consists of over 150,000 square...

    • Using Mediation to Resolve Disputes over Aboriginal Rights: A Case Study
      (pp. 286-291)

      In 1976 I was appointed mediator in a dispute between a group of five Indian bands from northern Manitoba on the one side and Manitoba Hydro, the Manitoba government, and the federal government on the other. The dispute arose out of the proposed diversion of waters from the Churchill River to the Rat River, the Burntwood River, and the Nelson River. The diversion was to enable Manitoba Hydro to build hydroelectric generating stations. The consequences of this diversion for the Indian bands were serious: hundreds of thousands of square miles of traditional fishing and hunting territory, which constituted their main...

    • Aboriginal Rights: The Search for Recognition in International Law
      (pp. 292-303)

      Indigenous people have repeatedly sought support for their aboriginal rights beyond the borders of the nation-state within which they live. The appeals of Canadian Indians to the United Kingdom and to international bodies over the constitutional reform issues is one of the most remarkable examples of the use of this strategy.¹

      A supranational strategy for recognition of rights is not normally available to minority groups. International interest cannot be assumed, because international concern for minorities has an uneven history. Traditionally, minority-rights questions were seen as ‘domestic’ issues and therefore beyond the reach of international law. This has never been wholly...

    • Fourth World Wars: Indigenous Nationalism and the Emerging New International Political Order
      (pp. 304-316)

      The descendants of ancient nations exist in the shadows of the massive, modern states that surround them and exploit them. In fulfilment of ancient prophecies uttered by Hopi, Naga, Basque, Cree, Saami, and Kanak thinkers, fourth-world indigenous nations are re-emerging as independent states in their own right. A new international political order, based on concepts of diversity and decentralization, is evolving under the influence of a global political movement led by indigenous populations. Modern states are slowly, reluctantly, yielding to the increasing demands of indigenous populations who seek to regain their natural place in the family of nations.

      The desire...

  9. 5 Aboriginal Rights and Indian Government

    • Introduction
      (pp. 319-320)

      The concepts of aboriginal rights and sovereign Indian self-government are considered by most Indian leaders to be virtually synonymous. That is, sovereign self-government is held to be an aboriginal right, and without sovereign self-government aboriginal rights are rendered meaningless. Canadian government policy, however, makes a sharp distinction between the two concepts. The federal and provincial governments reject all notions of sovereign Indian government as an inherent aboriginal right. However, they are ready and willing to negotiate a more limited form of self-government for Indians on the understanding that such self-government will be granted as a constitutional or legislative act. Even...

    • Aboriginal Rights and the Penner Report on Indian Self-Government
      (pp. 321-332)

      Concepts of aboriginal rights and of Indian self-government have evolved rapidly in Canada in recent years and have become fused with each other. Indian self-government is now advocated as an aboriginal right by Indian spokesmen and a variety of aboriginal rights are advanced as aspects of Indian self-government. Both ways of using the concepts seem appropriate. Indian self-government may well come to be considered the pre-eminent, overarching, collective aboriginal right, subsuming whatever other more particular aboriginal rights may be advanced. In any case, Indian self-government is now the major policy item on the agendas of both Indians and government, even...

    • Tribal Traditions and European-Western Political Ideologies: The Dilemma of Canada’s Native Indians
      (pp. 333-346)

      In their quest for political and cultural self-determination, Indian leaders in Canada have adopted the concept of sovereignty as the cornerstone of their aspirations. They advance claims to inherent sovereignty in order to establish the legal, moral, and political authority that will allow them to nurture and develop their traditional tribal customs, values, institutions, and social organization. The concept of sovereignty represents for the current generation of Indian leaders a means to an end rather than an end in itself.

      Recently, Indian leaders have taken their claim to inherent sovereignty into the international arena in an attempt to bring external...

  10. Epilogue
    (pp. 347-354)

    To understand the present and future problems in resolving the aboriginal rights issue, we need to understand the broader Canadian political agenda within which those issues exist. The same controversies that beset most social and economic policy-making in Canada also plague aboriginal policy-making. At the core of any attempt to deal with aboriginal peoples is the conflict of federal and provincial interests and jurisdictions. This was evident during the second and third constitutional conferences. When Prime Minister Pierre Trudeau proposed a constitutional amendment at the second constitutional conference to entrench the principle of aboriginal self-government and to commit the governments...

  11. Appendices

    • A Royal Proclamation of 1763 (excerpt)
      (pp. 357-358)
    • B A Declaration of the First Nations (1981)
      (pp. 359-360)
    • C Metis Declaration of Rights
      (pp. 361-361)
    • D First Ministers’ Accord Pertaining to Aboriginal Peoples in the Constitution, November 1981 (excerpt)
      (pp. 362-362)
    • E Sections of the Constitution Act, 1982, Pertaining to Aboriginal Peoples
      (pp. 363-363)
    • F Resolution to Amend the Constitution Act, 1982 (1983)
      (pp. 364-365)
    • G Proposed Constitutional Accord on the Rights of the Aboriginal Peoples of Canada (1984)
      (pp. 366-369)
    • H Indian Treaty Areas
      (pp. 370-370)
    • I First Ministers’ Conference on Aboriginal Constitutional Matters: Proposed Accord Relating to the Aboriginal Peoples of Canada (1985)
      (pp. 371-378)
  12. Table of Cases
    (pp. 379-380)
  13. Notes
    (pp. 381-403)
  14. Contributors
    (pp. 404-406)