Preface

Based on the experience of the Innu resident in Quebec and Labrador, this book is intended to be a work of advocacy for the full extent of the rights of indigenous peoples whose landholdings have been devastated in the Canadian land claims process. As things stand at present, the Innu who are resident in government villages in Quebec have lost their rights to all their land and this makes them almost unique among indigenous groups in Canada. Those peoples who, unlike the Innu, have signed land deals purporting to grant them rights over their own land have, in effect, lost 90 per cent of their ancestral land. Using the experience of the Innu as a template, I shall question Canadian sovereignty over indigenous lands which have been taken without the free, prior and informed consent of the indigenous peoples concerned. More important, my aim is to demonstrate the disconnect between the negotiation process and the reality of human suffering which loss of land entails for the Innu of the Ungava Peninsula and other indigenous peoples.

In 2008, I was invited to observe the land claims negotiations of the Innu of what was then known as the Ashuanipi Corporation, which represented the Innu of Central Quebec who live in government-built villages at Uashat, Maliotenam and Matimekush Lac John. They had two negotiations in progress with the Canadian federal government and the provinces of Quebec and Labrador. The first was to recover land rights which had been extinguished over their heads under the James Bay and Northern Quebec Agreement of 1975. The second was to establish their rights to land which they have owned for millennia across the provincial border in Labrador. The name of the corporation was significant in that it is the name of a lake and has been a meeting place for all Innu and other indigenous peoples of the Ungava Peninsula for at least 4,000 years. Now it is to be ceded to the Crown under the terms of the Tshash Petapen (New Dawn) Agreement signed only by the Innu who are settled in two villages in Labrador. Thus, having chosen to negotiate with only two of the 11 Innu communities who formerly shared the land, the Crown will receive land for which it has no current use in relation to any of the ‘public interest’ purposes such as resource extraction and hydro-electricity which are permitted under the line of judicial decisions starting with R v Sparrow1 and expanded in Delgamuukw v British Columbia2 and subsequent cases (see Chapter 9).

In 1972, all 11 Innu communities on both sides of the Quebec–Labrador border walked away from the negotiation table for rights to the land taken for the James Bay hydro-electricity project. They held to their firm belief that land is not a commodity to be bought or sold, but something which is held in trust for six generations of ancestors and the six generations to come. Land is given to be shared by all and humanity has a duty to take care of it and to conserve it. Although these beliefs are also held by the Cree, in 1972 the Grand Council of the Cree joined with the Inuit, first to assert their land rights through the courts and then to negotiate a settlement which recognised their right to the land but at the same time extinguished the land rights of non-participating indigenous peoples, including the Innu.

In the negotiation process in both these instances, so far as the governments are concerned, the rights to the land of the Innu settled in Quebec have been conclusively extinguished by the parties to the James Bay agreements. The Ashuanipi Corporation and its predecessors spent more than 30 years negotiating for the recovery of the lost James Bay lands. The federal government insisted that any renegotiation must take place between the indigenous parties concerned, but when in 2009 there seemed to be a breakthrough in these negotiations the government closed them down on a pretext. By the time I returned to observe the negotiations, they had ended and the Innu, now reconstituted as the Strategic Alliance, had begun to pursue a court case.

When I returned in March 2009, my purpose was to work on an oral history, in an effort to try to understand the human consequences of such a loss, which would recount the effects of denial of land rights on a people whose identity is defined by land. This aim coincided with the Matimekush Lac John Band Council’s proposal that I record the efforts they had made to recover the James Bay lands so that their descendants would know that they had not willingly given up the territory which in the future should rightfully belong to them. I had also hoped to uncover new arguments in favour of Innu ownership of the land, but the research and documentation prepared by the Innu for the negotiation process presented a very comprehensive case for Innu ownership of the land both in Quebec and in Labrador. This evidence is set out in Chapter 16.

With the aid of interpreters and a recording engineer provided by the Band Council, I conducted interviews with 48 people from a population of approximately 800, who collectively were able to give voice to highly relevant factors which are never raised at the negotiation table – where much indigenous testimony is lost in Euro-centric processes involving lawyers and consultants who speak on behalf of the Innu. My work with the Innu shows that, to those I worked with in Matimekush Lac John, land is not a commodity that can be bought and sold. Their past and future are tied up with the love they have for the land and their duty to protect it. The land belongs to every culture but to no individual or group and should be available for all to use. They can define the difference between the Innu and non-Innu attitude. As one Innu explained, ‘Canadians cherish a country, not the land’.3 Non-natives treat land as a commodity, an investment. To the Innu, one said, the land is everything while to the settler it is only money. The land is the Innu life, their culture and their home. It is their nourishment in every sense of the word.

Theirs is a two-way relationship: not only do they own the land on the basis of being the first to occupy it and to continue that occupation, but they also belong to the land and have a duty to protect it from the environmental disasters that come in the wake of Canadian resource development. Without the need for ownership by individuals, the land is their wealth. It provides food, medication, clothing and shelter – but only if it is respected. Further, it has given them the transferable skills of close observation, patience, endurance and flexibility, which are stifled by an existence on welfare payments.

When the Quebec–Labrador border was drawn, in 1927, it had no significance to the Innu, who had walked the entire peninsula together for generations and whose families live in both provinces. At the time they were not even told about the division of the peninsula. It only came to light nearly 50 years later during discussions with the governments and Hydro-Québec over the James Bay Agreement. As was pointed out by one Innu elder, the provincial border had no significance for the anthropologist Frank Speck either when, in 1935, he published his work on the Naskapi and the Montagnais.4 He allocated the whole peninsula to bands of indigenous people. French priests named the Innu ‘Naskapi’ and ‘Montagnais’, depending on whether they were from the North – the Mushuau Innu, whom they called Naskapi; or from the South – the people of the mountains whom they called Montagnais. To themselves they are simply Innu – ‘the people’.

The Innu of Uashat, Maliotenam, Matimekush and Lac John are isolated, the other Innu reserves having signed agreements for the exploitation of resources on their land. While there have always been tensions between the Matimekush Lac John Innu and the Labrador game wardens, in 2008, when the signing of the New Dawn Agreement in Principle was imminent, Innu hunters were threatened that, if they did not get off their lands in Labrador, their hunting cabins would be burned down. This threat was quickly withdrawn but the Innu have been denied the peaceful enjoyment of their land.

The Matimekush Lac John Innu live in the heart of the Quebec-Labrador Peninsula, right on the provincial border. This has enabled them to keep close to the earth and to all it means to them. They are constantly reminded of the stark difference between life in the interior and life on reserve. To sign a treaty extinguishing their rights is also to sign away their obligations to the land but, unless and until they do, they see the prospering all around them of communities who have signed extinguishment agreements and taken the benefits.

At the same time, in Matimekush Lac John the Innu are starved of resources and their children are failed by the standard of education provided in federal rather than provincial schools. They remain wards of the Crown, like children unable to control their own destiny, and deprived of the power to protect their environment. The chiefs and elders at the time of the James Bay Agreement were strong in their culture and, for them, agreement to extinguishment of their rights was impossible in the face of deeply held spiritual convictions. The community was kept informed and consulted about the negotiations, and support for refusal to sign any such agreement was virtually unanimous.

Settler Canadians identify indigenous peoples by where they live on reserve but, historically, the Innu and many others lived out on the land in the interior, only coming to summer meeting places to trade and to escape the mosquitoes and blackfly which make life unendurable to hunters and caribou alike in the two summer months. This was the mindset I encountered on reserve in Matimekush Lac John. Most of the people I interviewed, including the school students, indicated that they were settled in the government villages against their will and that their identity depended on their connections with the land which, even in the face of all government attempts at assimilation, remain strong.

There is a firm basis for indigenous land claims in the Royal Proclamation of 1763 (reproduced in Appendix A), in which George III of the United Kingdom undertook to protect the land of the indigenous peoples of North America from the incursions of other empire-building nations and from waves of settlers from Europe. The Proclamation decreed that it was made for the protection of the indigenous people and that no indigenous land could be purchased or taken in any way other than through the British Crown.

This undertaking was never revoked and it was recorded both in the Treaty of Niagara of 1764 and in the wampum belts which were widely distributed and which embody the indigenous understanding of the terms of this Treaty – that settlers and indigenous peoples should live side by side, following parallel paths which preserve their respective cultures, joined in mutual respect, peace and friendship. Where the indigenous peoples believed the arrangement to be a treaty of peace and friendship, however, those who signed on behalf of the Crown described it as a treaty of offensive and defensive alliance. At the time, the Crown was dependent on its indigenous allies in its wars with the French, and subsequently with the independent states of America.

By the beginning of the 19th century, however, the British were firmly established in what was then British North America, north of the 49th parallel. They no longer had need of allies for war. They needed land for settlement and later for resource extraction. This book is an account of the ways in which the Crown in Right of Canada set out to circumvent the promises given in the Royal Proclamation.

The decisions taken by the Crown on behalf of the native peoples to whom it had offered protection took no account of the fiduciary duty it had assumed under the Royal Proclamation. Negotiators sent by the British North American authorities to bargain for land which belonged to the natives failed to observe the duties of utmost good faith assumed by the Crown under the Royal Proclamation. Negotiations took place according to settler custom under the common law. There were no words in indigenous languages for the terms which were eventually written down, under which the land was taken by the Crown in absolute ownership in exchange for a small annuity, supplies, education and medicine which in no way represented the value of the land which had been ceded. This is exactly the sort of situation which the law on fiduciary duties is intended to prevent. Here the Crown, as the dominant party, took advantage of its superior bargaining power and the special relationship which the Royal Proclamation created with the indigenous people.

Unable to see any worth in the cultures of the indigenous peoples with whom they treated, the Crown assumed that they would soon be assimilated into settler society. In order to accelerate this process, native children were taken from their families and sent to residential boarding schools where they were deprived of their language and culture in the most brutal way, and most were so damaged by the experience that they were left with no future either in settler society or in their own families. Following Confederation in 1867, steps were taken to settle native peoples into villages owned by the government – which later became the model for concentration camps in the South African Boer War and subsequently in Germany.

Under this process, the Crown claimed that it was observing its fiduciary duty by making the ‘Indians’ wards of the Crown, i.e. treating them as minors, unable to make decisions for themselves. Indigenous destinies lay in the hands of an Indian Agent who had virtually unlimited power to decide who could leave the village, and who was to receive seeds and farming implements to allow them to lead a sedentary life. Far from being allowed to pursue their parallel existence in an atmosphere of respect, peace and friendship, the indigenous peoples of Canada were deprived of their land, language and culture and thus their identity. They had no control over their own destiny. This in no way represents the nature of the fiduciary duty imposed by the Royal Proclamation – which is founded on an undertaking given nation-to-nation regarding land, and between parties of equal standing.

Through the lens of the common law and, in particular, the law of trusts and fiduciary duties this book examines the devices used by the Crown to deprive the indigenous peoples of their lands. It will demonstrate that there is no need to look to indigenous law to make a case that indigenous land to this day is owned outright by indigenous people. Under the terms of the Royal Proclamation, the British Crown had assumed responsibility for all dealings in indigenous land. This was the basis of the fiduciary duty. The party who assumes a fiduciary duty may never take advantage of that position and must act always in the best interests of the party to whom the duty is owed. This precludes all dealings in land and other assets and information obtained as a result of the relationship. Thus the Crown is prohibited from dealing in indigenous land for its own benefit without the free, prior and informed consent of its indigenous owners. Any interpretation of the Crown’s duty to the indigenous peoples which falls short of this is a stain on the honour of the Crown, a concept discussed at length in Chapter 8. Having observed such duties in my professional life and subsequently having impressed their fundamental importance on generations of law students, it became a personal imperative that I make an attempt to clarify this issue.

The indigenous rights decisions heard by the Supreme Court of Canada, while acknowledging the existence of such rights, would balance them against the general public interest of those who had settled in Canada. Similarly, the Canadian and provincial governments negotiate with individual indigenous peoples whom the governments have called ‘nations’ on a ‘take it or leave it’ basis, purporting to grant rights to rather than to receive rights from the indigenous people concerned. The Canadian legal system seems not to be able to conceive of solutions to these intractable problems of indigenous land rights from an alternative world viewpoint to its own. It appears to see no value in the indigenous system of landholding whereby land is shared by all.

Intent on acquiring the land for development, the governments and their commercial partners will pay sums of money which hold the promise of a better future for Innu youth. On closer examination, however, the payments are divisive and destructive of communities. The Innu I interviewed were fearful of the large sums of money which would be available in the village following the reopening of the mines. They knew that drugs and alcohol would threaten the relative stability which the community had enjoyed in recent years.

In the court cases from Delgamuukw onwards the land claims settlement process is said to be one of reconciliation – the reconciliation of indigenous rights with Canadian sovereignty. Yet a system under which the governments provide a set agenda on a ‘take it or leave it’ basis and take 90 per cent of aboriginal land on the pretext of granting rights to 10 per cent cannot work towards a long-term solution of the ‘Indian problem’.

Across Canada, land settlement agreements are couched in remarkably similar terms. Any attempt to allow indigenous peoples to continue a life based on subsistence are firmly resisted. For governments, it is preferable to assume the huge cost of keeping indigenous people in idleness on reserve rather than to allow them to continue their hunting life, which is the antidote to the epidemics of drug misuse, alcoholism, diabetes and domestic violence that plague native communities. What the Canadian governments are seeking is not reconciliation but an updated version of assimilation.

In 2007, all but four UN member states endorsed the United Nations Declaration on the Rights of Indigenous Peoples. Canada was one of the four. Yet the Declaration simply spelled out the duties already assumed by the Crown in Right of Canada through the Royal Proclamation. Finally, in 2010, Canada endorsed the Declaration. So far as can be ascertained, the Innu resident in Labrador were never advised of the significance of the Declaration vis-à-vis the Tshash Petapen Agreement in Principle, ratified in 2011. Despite the parliamentary apology to the Indian Residential School survivors, which would have provided an ideal opportunity, the Declaration has never passed into Canadian law, although Prime Minister Justin Trudeau has issued his own apology for the catastrophic effects of the Indian Residential Schools system and Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples was only introduced on 3 December 2020. British Columbia had introduced similar legislation in November 2019.

New hope has also been given to indigenous peoples across Canada who are ‘negotiating’ land claims with the delivery of the Supreme Court decision in Tsilhqot’in Nation v British Columbia.5 The position of the Innu who live in Quebec has been fully vindicated. The Supreme Court of Canada in a unanimous decision of the eight senior judges who heard the case has confirmed that aboriginal title includes title to land used by nomadic and semi-nomadic peoples and that, once title is acknowledged, the consent of the claimants must be obtained for any incursions onto that land. This decision could finally bring the overlong period of fruitless negotiations to an end and lead to a land claims settlement which does not require the Innu to agree to the extinguishment of their rights.

Although Tsilhqot’in comes close to confirming that the Canadian governments must hold fast to their fiduciary duty, Chief Justice McLachlin nevertheless maintains the principle laid down in Sparrow which permits governments and corporations to proceed without consent with schemes on native land for the general public good, which include hydro-electric projects and resource extraction. In Chapter 9, I dispute the validity of such an exception.

The approach taken in Sparrow demonstrates the inability of governments and courts to conceive of a true reconciliation between settler and native peoples where the undertakings given in the Royal Proclamation are fully honoured. Academic writers who have long supported the indigenous peoples in their struggle for recognition of their rights also draw back from full restoration.

The concluding section brings together the legal and sociological analyses of the foregoing material. In order to do this, I examine texts which propose solutions to the situation in which settlers and indigenous peoples find themselves today. None of these authors fully support the proposals of the Royal Commission on Aboriginal Peoples, namely of two separate peoples living side by side.

The indigenous peoples of Canada set out, in the Report of the Royal Commission on Aboriginal Peoples (RCAP), their requirements for a true reconciliation of the differences between Canada and the original peoples. To date this vital document has been largely ignored. In the wake of the Report of the Indian Residential Schools Truth and Reconciliation Commission, there have been renewed calls for the implementation of the recommendations of both the RCAP Report and the United Nations Declaration on the Rights of Indigenous Peoples. In spite of its declared intention to do so, we must wait to hear how far the present Liberal government is prepared to go along this road.

Outline of the book

Part One: The Innu

This section of the book is intended to bring to the fore the severe consequences for indigenous peoples of the way in which the Canadian federal and provincial governments seek to deprive them of their land. Drawing on the oral history I conducted in 2009, I recount the treatment of the Innu and the many broken promises which were made to them. In Chapter 1, their voices tell the story of the move north to the new town of Schefferville. Chapter 2 tells what happened when the iron mines closed in 1982 and Chapter 3 what life is like in the villages today. Nevertheless, I demonstrate that the Innu culture and way of life are strong despite the ravages of the fur trade, residential schooling, mining and the activities of game wardens – which are discussed in Chapter 4 – and racism, recounted in Chapter 5. All chapters in the book are interleaved with Innu perceptions of their fate at the hands of the governments and corporations, as well as at the hands of other indigenous groups, which deprived them of their rights.

Part Two: The Royal Proclamation and questions of trust over Canadian indigenous land

This part explores the nature and extent of the fiduciary duty owed by the Crown, traces it to its logical conclusion and sets out the implications for the ownership of indigenous land in Canada. It examines the duty to obtain the Innu’s free, prior and informed consent to any transaction or resource extraction concerning their land as enshrined in the United Nations Declaration on the Rights of Indigenous Peoples, which fully reflects the duties of a fiduciary.

Chapter 6 sets out the historical background of European land acquisition on the American continent and sets the Royal Proclamation in context. Chapter 7 explains the nature of the fiduciary duty owed by the Crown, while Chapter 8 demonstrates how the Crown in Right of Canada circumvented its fiduciary duty and traces the treaties and court decisions through which this was done. This chapter also discusses the validity of the Sparrow decision and I suggest that, under section 35(1) of the Constitution Act 1982, there can be no justification for exploiting indigenous land for the public good without the free, prior and informed consent of the original owners of the land. Chapter 9 examines the nature of the ‘honour of the Crown’, a fundamental principle which has been revisited recently by the Supreme Court of Canada in a line of cases culminating in Tsilhqot’in.6

Part Three: The modern treaties and Canada’s Comprehensive Land Claims Policy

This part of the text examines the relationship between the Quebec government and the indigenous peoples whose lands they sought to use for a massive hydroelectric project centred on James Bay, the southern arm of Hudson Bay. The provincial government proceeded with no acknowledgement whatsoever that indigenous rights to the land might exist. The Cree and the Inuit sought an injunction to stop work on the project and the ensuing Malouf judgment formed the basis of the James Bay Agreement.

Chapter 10 gives the background to the project, describes the life of the Cree and Inuit who shared the land with the Innu before construction started, and describes the James Bay project and the political reasons for its implementation. Chapter 11 describes the application for an injunction brought by the Cree and Inuit and provides an analysis of the judgment handed down by Judge Albert Malouf in these proceedings. The reasons for the decision in this case are very rarely discussed in depth, as they are in this chapter. Chapter 12 follows the ensuing negotiations for what was to be the first modern land claims settlement. Chapter 13 provides a review of the implementation of the James Bay Agreement and its consequences for the Innu, who shared the land with the Cree and the Inuit. Chapter 14 covers the developing Comprehensive Land Claims process of successive Canadian governments.

Part Four: The Innu experience of the Comprehensive Land Claims process

Chapter 15 describes and analyses the 40 years of fruitless negotiations in which the Innu of Central Quebec have tried to recover their lost James Bay lands. In Chapter 16, I look at the Comprehensive Land Claims process across the border in Labrador, where Quebec Innu land rights have been ignored or written out. I analyse the terms of the New Dawn Agreement in Principle (AIP) and the subsidiary Impacts and Benefits Agreements, examining the extent of the land which has been sold to Canada for the Lower Churchill Falls hydroelectric project. I trace the process of ratification of the AIP and raise questions as to its validity through two lenses: the duty to consult the aboriginal group and the fiduciary duty to uphold the honour of the Crown. I also look at the duties of indigenous representatives, lawyers and consultants involved in the negotiation process and the impact of the AIP on the Innu resident in Quebec. In Chapter 17, I examine the position of the Innu resident on the other side of the border in Quebec who are seeking to establish their rights over the New Dawn lands. Finally, in Chapter 18, I look at the consequences of constructing the dam at Muskrat Falls, with its ensuing dangers to life, without a Tshash Petapen Final Agreement in place.

Part Five: ‘Citizens Plus’ or Parallel Paths?

Chapter 19 reviews the work of settler writers who have been influential in directing current perceptions on the question of indigenous rights in relation to the de facto sovereignty claimed by the Crown in Right of Canada. I review the work of J.R. Miller and Alan Cairns, political scientists who propose that indigenous peoples be treated as ‘Citizens Plus’ – Canadian citizens with additional rights. I contest the assertions of Tom Flanagan, a former adviser to the Conservative Harper government, that indigenous peoples have few rights in the land they occupied long before first contact with Europeans; and also the assertions of his former student, Christopher Alcantara. I dispute the opinion of Widdowson and Howard that there is an ‘aboriginal industry’ which inappropriately fuels the conflict over such rights, an argument used in support of Christopher Alcantara’s thesis that reconciliation of indigenous rights is fully served by the terms of the New Dawn Agreement. None of these writers acknowledge the full impact of the promise given in the 1763 Royal Proclamation. In Chapter 20, I compare their views with those of indigenous scholars such as John Borrows, Taiaiake Alfred, Vine Deloria and Calvin Helin. Finally, in Chapter 21, I give my own conclusions.

Throughout the text, I try to give priority to indigenous voices in order to reflect their arguments should they ever be properly represented at the negotiating table. This text should be read as a proof of evidence, and thus I have interleaved the chapters with direct quotations from the people of Matimekush Lac John, Municipality of Schefferville, Northern Quebec. Consistent with this approach, at no time have I contacted the lawyers and consultants advising the Innu Nation of Labrador.

Map 1: Territory of the Innu Nation. Note: The final territorial delimitation remains to be defined by the Innu Communities. The shaded area represents the non-definitive limit of Nitassinan.