5. CHAPTER 5: TOWARDS A NEW ‘SOCIAL CONTRACT’: THE
1985. After six months of work, the TF presented important numbers: there were 90 meetings (50 of which were held with Native groups) and 73 submissions (52 of which were from Indigenous groups and 21 from non-native groups), involving Federal agencies, Provincial governments, Federal negotiators, private companies, civil society organizations, scholars, lawyers, private citizens, and especially a considerable number of Aboriginal groups- Métis, Inuit and First Nations - across the country.
However, neither those records nor the significant impact the report had on the land claims policy was sufficient to attract scholarly interest to the process. Touted by Chief Gary Potts of the Teme-Augama Anishnabai First Nation as “the first time since 1763 that government has made an effort to hear from the first nations of Canada in a Treaty making policy formulation” (CANADA, 1985, p.2), we decided to go deeper into the TF work and provide a detailed account of this process involving Native groups in Canada. We intend to provide a full picture of the policy review process and the contributions of the parties involved, with particular focus to the contribution made by First Nations.
This chapter has the following objectives: firstly, to provide a full and detailed account of the process of policy formulation started with the White Paper in 1969 and that ended up with the process aforementioned. The current CLCA policy should be understood as the culmination of a process that began after the backlash faced by the Canadian government subsequent to the failed attempt to repeal the Indian Act in the late 1960’s. Zooming in on this period, just briefly cited in the last chapter, it will provide for a more accurate account of the changes to the policy during the period considered.
Secondly, we go beyond the official report and analyze the actual process of Indigenous participation in light of the data available. We look for the arguments advanced in formal submissions or meetings with the TF, highlighting the Indigenous proposals related to aspects of the policy such as the scope of negotiations, policy goals and objectives and overlapping issues, among others. The arguments and proposals of the other participants are also considered, providing a rich and complete picture of the process. The primary data used here are the documents collected at the Canadian institutions already considered in the introduction of this dissertation.
Finally, we analyze the case in light of the variables advanced in the first chapter of this dissertation, discussing their potentials and shortcomings to the
explanation of the role of Indigenous participation in the process of reviewing and designing a policy that directly affects them. To base our arguments, we draw not only on the primary data but also on a series of documents and secondary data.
5.2. The winds of change: from the 1969 Statement of the government of Canada on Indian Policy to the 1973 new policy on Indigenous land claims.
In the wake of the major social movements that agitated the world during the late 1960’s and the election of the Liberal Government of Pierre Elliott Trudeau in 1968, the Canadian policy towards First Nations suffered a major shift in its course.
In 1968 and 1969 the Trudeau administration decided to carry out a significant revision of the legislation and policy concerning Indigenous peoples in Canada.
The political content of the 1968’s discussion handbook titled “Choosing a path: a discussion handbook for the Indian people” (CANADA, 1968) is in consonance with the later “Statement of the government of Canada on Indian Policy”, presented to the House of Commons by the Minister of Indian Affairs and Northern Development, Jean Chrétien, in 1969 (CANADA, 1969). The rationale behind the two documents is the following: the historical approach to Indigenous peoples in Canada has led to “apartheid” between settler society and those groups, practically two radically distinct societies living in two different countries. While Canada inhabited by the citizens of European ascent is prosperous and socially just, the other is miserable and sad. Moreover, the Indian Act is an excrescence of the colonial era, and racially- based laws cannot be accepted in a modern Western-liberal democracy. However, the “special treatment” dispensed to Indigenous groups was nothing more than “legal discrimination.” Thus, from this basic premise follows the core proposals of the Statement: repeal the Indian Act and “wind up that part of the Department of Indian Affairs and Northern Development which deals with Indian Affairs.” Therefore, the stated goal of the proposal was to allow “full, free and non-discriminatory participation of the Indian people in Canadian society” (CANADA, 1969, p.5)
According to the liberal worldview professed by the 1969 Statement, it proposes that the traditional lands in Canada should be under full control of First
Nations, which would have “free choice of use, of retention or of disposition”
(CANADA, 1969, p.12). In this sense, Native groups could use the land for mortgages and leasing and should accept land value tax in the future.
Finally, in 1973, the new policy on Indigenous Land Claims was presented by the Trudeau government through the Statement on claims of Indian and Inuit people made by the Honorable Jean Chretien to the Parliament. Such action exposes, from the outset, that the policy announced includes “Inuit or Eskimo people” and is intended to settle longstanding grievances with Native groups that had not signed historic treaties with the Crown, notably in Northern Québec, Northwest Territories, British Columbia and Yukon. It was by Chretien’s understanding that the new policy was “intended and designed to remove the sense of grievance and injustice which impedes the relationships of the Indian and Inuit peoples with the governments concerned and with their fellow Canadians” (CANADA, 1973, p.30).
The Statement affirms that “it is basic to the position of the Government that these claims must be settled and that the most promising avenue to settlement is through negotiation” (CANADA, 1973, p.4) and that the Canadian government is ready to engage in negotiations with First Nations organizations. Importantly, the new policy stressed the importance of the participation of the Provinces in processes of land claims settlements. In verbis, “settlements with Indian and Inuit groups in those provinces can only be satisfactorily reached if the provinces concerned participate along with the Government of Canada in the negotiation and settlement” (CANADA, 1973, p.5).
Considerably, those were the bedrocks of the new Canadian policy on Indigenous land claims: the centrality of the negotiation as the procedure to reach agreements with Indigenous groups, with the participation of the Provincial governments. Furthermore, it represented a rupture with the previous policy of the Canadian government during the first half of the twentieth century and returned to the previous pattern of negotiation, characteristic of the historic treaties, howbeit, in a completely different political landscape.
In All Fairness: the first revision of the 1973’s Land Claims Policy.
Although relevant, a policy statement is not enough to build up a policy.
Nonetheless, it develops its tools and concepts progressively in practical contexts of real relationship with the targeted population. Native Land Claims began to have the increasing attention of the government from 1973 onwards, as a review on Annual Reports of the Department of Indian Affairs and Northern Development reveals. In addition, the Office of Native Claims (ONC) was established in 1974 to deal specifically with the claims under the new policy. In 1975 the Cree and Inuit of James Bay settled the first modern treaty; the Council of Yukon Indians signed an agreement-in-principle in 1978; the Inuit from the center and eastern Arctic entered in negotiations with the Canadian government, as well as the Nisga’a in British Columbia and the Métis of Mackenzie Valley.
Nevertheless, if some major claims were filed over the 1970’s, the pace of negotiations was slow, frustrating the expectations of First Nations. Succeeding eight years of its adoption, the general evaluation was that “there has been moderate success but much remains to be done” (CANADA, 1981, p.3). In essence, the Honorable John C. Munro, Minister of the AANDC, proposed a first revision of the 1973 Statement presented in a booklet titled “In All Fairness.”
Substantially, in this first major policy review, some guidelines are set out.
Firstly, it affirms that all negotiations should lead to a scenario where no future claims would be made against the Canadian state or, in other words, the negotiations must be final. Secondly, the negotiations would be designed to deal with “non-political matters” arising from the discussions regarding fishing and hunting rights, monetary compensation, among other topics. The scope of the reviewed policy was clear: “the thrust of this policy is to exchange undefined aboriginal land rights for concrete rights and benefits” (CANADA, 1981, p. 19).
There is a resolute defense of the negotiation as the best procedure to conclude agreements with native groups. In contrast to the procedures adopted by the United States and Australia to settle significant native claims in those countries, Munro affirms that negotiations are preferable to court disputes and arbitration because it “allows them to participate in the formulation of the terms of their own settlement” (CANADA, 1981, p.21). Moreover, native groups would be able to express their concerns and grievances. Finally, it permits more elasticity in dealing with Native concerns.