Chapter 21

‘Citizens Plus’ or parallel paths?

Innu attitudes to money, discussed in previous chapters, mean that large sums of money do not necessarily benefit indigenous communities. For many generations they lived off the land and its bounty, working hard for their livelihood. Centuries of subsistence living have taught them to live on what is currently available and to share resources, knowing that in times of trouble they too will be supported. When this philosophy is applied to large amounts of cash, the result is seen by settler Canadians as profligacy. The question remains how to extricate both settlers and native peoples from this situation.

The Hawthorn Commission as far back as 1963, and much more recently Alan Cairns and J.R. Miller, backed the ‘Citizens Plus’ model in which native peoples are treated as ordinary citizens with additional benefits given in recognition of their prior ownership of the land. The Royal Commission on Aboriginal Peoples, whose report took into consideration extensive research among and by aboriginal peoples, preferred the model of the two-row wampum: settlers and aboriginal peoples living separately side by side, according to their respective beliefs. This is reflected in Calvin Helin’s proposed solution. Which would better enable aboriginal rights disputes to be resolved?

The Citizens Plus format is said to encourage a solution that is forward-looking. It proposes to give indigenous peoples a stronger voice in mainstream Canadian politics by recognising their rights as individual citizens of Canada so that their requirements are treated as equal to those of settler citizens. Cairns’ solution is for settler Canadians to take greater responsibility for past treatment of indigenous peoples and their issues. However, this solution is still Canadian-centred and it is not specific as to how the realities of current settler–indigenous relations are to be addressed. Even taking on board Judge Murray Sinclair’s remark that, ‘It will take a long time to turn the ship round’,1 due to the overwhelming settler majority in Canada, it is doubtful whether with this approach the indigenous voice would truly be heard. There is no true reciprocity in this solution, no incentive to change the status quo. Kymlicka and Norman point out that: ‘The discourse on citizenship has rarely provided a neutral framework for resolving disputes between the majority and minority groups; more often it has served as a cover by which the majority nation extends its language, institutions, mobility rights and political power at the expense of the minority, all in the name of turning supposedly “disloyal” or “troublesome” minorities into “good citizens”.’2

At heart, Citizens Plus is assimilationist. It is more than likely that the governments would retain their present control of indigenous policy. If the fiduciary duty assumed by the Crown had been honoured from the outset, governments could not have encroached in any way onto indigenous land without the free, prior and informed consent of its peoples. While it ill becomes Judge Lamer to declare in his reasons for decision in Delgamuukw v British Columbia, ‘Let’s face it, we’re all here to stay’, in any case (as the chief land claims negotiator in Matimekush told me) it was never the intention of the indigenous peoples to ask settlers to leave.

If settlement and resource extraction together with the numbered treaties and the modern settlement agreements had been approached in the spirit of the Royal Proclamation, this would not have precluded European use of indigenous land, but it might have given pause for thought before land was ruined for a few years of mineral extraction. The assimilationist experiment would not have devastated so many indigenous lives if the three tenets of equality, respect and dignity had been afforded the original owners of the land. These are the forgotten strands of the two-row wampum. Had there been respect for indigenous beliefs about stewardship of the land and if they had been given equal weight to European considerations in the development of pristine land, the excesses of those whose only motive is glory for the separatist state of Quebec or monetary profit for (often American) corporations might have been curtailed. John Borrows would not have to call for aboriginal involvement in Canadian government decisions which affect the wider population. It should be remembered that it is not only the indigenous peoples of Canada who object to the destruction of their environment for the profit of corporations and governments. As foreseen by Vine Deloria, two protest movements came to prominence in Canada in late 2011: Idle No More and the worldwide Occupy movement. They had very similar aims drawn from each of the parallel paths.

One interviewee in Matimekush asked me to consider what would have been the situation had the James Bay agreements not been signed. At the time of the Malouf Judgment, before the decision in Calder v Attorney General for British Columbia [1973] was published, there was as yet little discussion of the nature of aboriginal title to land. The Quebec Court of Appeal summarily dismissed the Cree and Inuit claim, overturning the Malouf judgment. The corporations would most likely have pursued a much more ambitious scheme, destroying more of the ecology and in total disregard of the needs of the people who had lived on the affected land for millennia. Most likely, like the Innu, the Cree and the Inuit would have been driven off the land with no resources with which to sustain their communities. Like the Innu who live in Central Quebec, they would have made their hunting journey only to discover their land flooded and their livelihood gone.

On the other hand, had the Royal Proclamation been honoured, all aboriginal peoples with an interest in the James Bay lands would have been properly informed and the project would have depended on their free, prior and informed consent. It would have been recognised automatically that the underlying title to the land was theirs.

The parallel paths model of co-existence was what the indigenous peoples were promised by the Crown. Even if this were not the case, the model offers greater advantages to both communities in that it frees each of them to flourish with all the advantages from their own cultures and to develop together. The parallel paths model should afford the indigenous population the same benefits as Citizens Plus, but without the extinguishment of their rights which the latter model would inevitably entail. The requirements to treat each other with equality, mutual respect and dignity provide the basis for the promotion of similarities between the two peoples – an approach which Cairns believes to be lacking currently. It is absolutely essential that the settler population of Canada learn the full truth about past dealings with indigenous land and how, on settlement in Canada, their governments made the new European inhabitants promises which were not theirs to give. Most important of all, Canadians must accept that the promises made in 1763 are binding today. Only then will they allow indigenous peoples the right to make decisions on behalf of all Canadians.

Final thoughts

Within the relationship set down in the Royal Proclamation, the Treaty of Niagara and the two-row wampum, which establish the fiduciary duty owed by the Crown in all its manifestations, Canada cannot establish title to any land which it has taken without the free, prior and informed consent of the indigenous peoples within its borders. This requirement is also a cornerstone of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Since 1763, all decisions the Crown has made with regard to indigenous land should have been made in the best interests of the indigenous peoples alone. Where such interests conflict with those of settler Canadians, the rights of the indigenous peoples must prevail. The governments must disgorge any profits they have made as a result of their exploitation of indigenous land, however remote in time these are. That is the commitment which was given in the Royal Proclamation. However inconvenient this conclusion, this is the state of affairs which must be conveyed to Canada’s settlers. Unless and until they understand what is owed to the native peoples, no satisfactory solution to the divide between the followers of the parallel paths can be found.

No native grouping has ever called for this, however. The contagion of neo-liberal capitalism has not entered into the beliefs of grassroots native peoples in the way it has affected some of their leaders. Treaties could and should be re-negotiated in the light of the fiduciary duties which were taken on by the Crown. Unilateral extinguishment of rights is not permitted under international human rights law, and this is confirmed by UNDRIP in the case of land rights. The claim of the people of Matimekush Lac John to their traditional lands must be honoured and the necessary adjustments made through a renewed treaty process, preferably backed with a decision of the court.

Resistance to the idea of a trans-Canada indigenous government must be overcome. This was a key recommendation of the Royal Commission on Aboriginal Peoples (RCAP) in its 1996 Report. The Sámi in Scandinavia have separate parliaments which work together with the national parliaments in Norway, Sweden and Finland. They pursue their parallel paths with the national bodies with respect and dignity, if not with full equality. They unite on issues which affect the whole of Sápmi, their traditional homeland.3 This is a forum in which their traditional knowledge can be heard and acted upon. With an indigenous parliament in place in Canada, much of the policy-making would be taken out of the hands of individual chiefs and Band Councils and away from the Assembly of First Nations. There could be economies of scale and accountability which would ensure that funding was allocated more effectively, and the indigenous peoples of Canada would have the voice they need in mainstream politics. The Innu of Central Quebec, who believe they are the last to refuse to sign away their rights, would have those rights respected and could break free from being the wards of the Crown.

The people of Matimekush Lac John have stood up for their rights under the fiduciary duty owed to them by the Crown. They have remained true to their belief that they have responsibility for their land and its ecology. This they have done at great cost to themselves in terms of living standards, health and freedom to take charge of their own destiny. Yet not one of the 48 people I interviewed believed that it was wrong to refuse to sign deals which entailed the extinguishment of their rights. Psychologically they are the stronger for it.

In this work I have traced the development of indigenous law in Canada from its beginnings with the Royal Proclamation in 1763, when indigenous nations were strong. The meaning of the Royal Proclamation was confirmed by the wampum belts distributed at the meeting which led to the Treaty of Niagara of 1764. The Crown gave a solemn undertaking that indigenous peoples would be free to live on their land in accordance with their tradition and world view. However this unwritten record, like much oral history of native peoples, has been ignored in the rush to take land for settlement and subsequently for resource extraction.

Under the Royal Proclamation, the Crown took to itself the responsibility for disposing of indigenous land. This was done for the benefit of the Crown in order that all settlers took their title to land from the Crown. Such an arrangement also precluded other interested European nations from buying up indigenous land. In agreeing to this, the indigenous peoples acted to their detriment, placing the Crown under a separate duty to treat indigenous lands as trust property. This means that the Crown received only an empty title to the lands, the full benefit resting with the indigenous people concerned. Yet it was not until the decision in Tsilhqot’in Nation v British Columbia – 250 years later – that this was acknowledged by the Supreme Court of Canada.

Looked at from the point of view of property law and equity and trusts law, the Crown in Right of Canada can, like any other body which finds itself under a fiduciary duty, be called on to account for all it has taken by way of lands, resources and profits from the indigenous beneficiaries of the relationship. The only exception to this is when the indigenous group concerned has given its free, prior and informed consent to the settlement and has received a fair market value for the land and resources expropriated. Neither of these preconditions appears to apply to any modern land claims settlement. In the case of the Innu who live in Quebec, they were not even informed when their land was taken.

Despite 250 years of assimilation, indigenous beliefs and values survive. Even among those who have chosen to settle land rights with the governments and corporations, the underlying values of sharing the land remain intact. In the James Bay Agreement, the Innu lost their lands in Quebec. Now they expect to lose their lands in Labrador, although they have joined together to fight through the courts to retain them.

The Conseil Attikamekw-Montagnais, Ashuanipi Corporation and Strategic Alliance negotiators have compiled an excellent, thorough and cohesive case for their right to the lands both in Quebec and in Labrador. Similar rights were recognised over the James Bay lands by Judge Malouf in 1974. He has been proved right by subsequent cases in higher courts whose decisions have extended the application of the Royal Proclamation to all indigenous land rights in Canada. He was also correct in his assessment of the environmental damage which follows in the wake of hydro-electric and other resource extraction projects. It was thus vital to federal and provincial governments planning to profit from such initiatives that this judgment be suppressed at the earliest opportunity.

Now, however, it is time for it to be revived and reconsidered. The decision in Tsilhqot’in has been handed down in time to give the Innu who object to the New Dawn Agreement hope of recognition of their lost rights. However, any such settlement is likely to be worked out at the negotiation table. It would appear that the principle of justification on grounds of overriding public interest put forward in R v Sparrow is ill-founded, although further research is needed into the intention of parliament when it drafted section 35(1) of the Constitution Act, 1982.

Turning to the negotiations with the provincial governments which took place from the signing of the James Bay Agreement by the Cree, Inuit and subsequently the Naskapi, the records at the Tshakapesh Institute show that the Innu have withdrawn from negotiations for the recovery of their land whenever the federal and provincial governments have insisted that all rights not specifically granted in a forthcoming settlement be extinguished. Under the new rules in Tsilhqot’in, this is not a legitimate demand for the governments to make, since extinguishment is not necessary for the public purpose on which they rely as justification for taking the land. Insistence on an extinguishment clause (now renamed a ‘certainty’ clause) is a prime example of the governments’ disregard of their fiduciary duty. At the same time, government insistence on negotiation from a fixed agreement with no attempt to address and accommodate the requirements of a particular indigenous group is a failure to uphold the honour of the Crown. Furthermore, failure to identify those who are selected to represent the indigenous group in a free and fair way, according to the procedures traditionally used by the group concerned, is not only a stain on the honour of the Crown – it is also a contravention of the standards laid down in UNDRIP. Where the federal government may regard UNDRIP as ‘aspirational’, the indigenous peoples intended to benefit from the rights it endorses have repeatedly called on the federal government to abolish the discriminatory Indian Act and replace it with legislation enabling UNDRIP to pass fully into Canadian law. Again, failure to do so is a breach of the Crown’s fiduciary duty and a stain on the honour of the Crown.

Perhaps the most important evidence of the Crown’s breach of fiduciary duty is given in the testimony of the Innu of Matimekush Lac John. They testify to the harm that government policies of assimilation and failed promises of improved conditions under the cash economy has inflicted on them. By allowing the Innu to fall behind in education, health, status and self-determination, the governments have ceased to acknowledge that they have any duty to improve their quality of life and ability to provide for their families. Despite having demonstrated their good stewardship of the land for which they feel responsible, the Innu also have to stand by and see that land destroyed for a few years of mineral extraction or for an eternity of artificial inundation. At the same time, they are blamed, either directly or indirectly, by both their indigenous neighbours and the governments for staying true to their beliefs rather than ‘moving on’. The inhumanity and indignity they suffer through these processes is never taken into account at the negotiating tables.

Now the Innu of the Strategic Alliance expect to lose their lands in Labrador under the New Dawn Agreement. As discussed, the Newfoundland Labrador government has been aware for more than 30 years of the Quebec Innu claim to this territory. The ratification vote on the New Dawn Agreement is also invalid because there was no free, prior and informed consent to the acquisition of the lands or for the Lower Churchill Falls project from the Labrador Innu beneficiaries of the agreement. There is strong evidence that C$5,000 was paid for each ratification vote. The withholding of the full text of the Agreement in Principle from those called upon to vote on it also invalidates the ratification. Further, the Innu owners of the land, whether they are beneficiaries of the Final Agreement or not, are entitled to compensation for the destruction of the environment resulting from the Muskrat Falls project due to the commencement of construction without the Final Agreement in place.

The very purpose of the fiduciary duty created by the Royal Proclamation was to protect indigenous groups from the seizure of their land by settlers. The Proclamation is intended to shield the beneficiaries from unscrupulous dealing. For well over a century, governments and corporations were permitted to act as though indigenous peoples had no proprietary right to the land by the decision in St Catherine’s Milling v R, but this decision has been overturned. Tsilhqot’in established that the principle of terra nullius never applied in Canada because, the court said, it was overridden by the Royal Proclamation. The court might also have said that it never applied because it was an invalid concept from the outset. The principles of equity which govern the law relating to fiduciaries demand that the highest standards of conduct are observed by the fiduciary towards the beneficiary at all times and in all ways relating to the beneficiaries. This is what the honour of the Crown comprises. Since the 2004 decision in Haida Nation v British Columbia, the Supreme Court has given prominence to this principle as a means to achieve reconciliation between the differing indigenous and settler relationships to the land. What the court has failed to do, however, is to lay down concrete principles under which land claims negotiations should be conducted.

There are many ‘dead letters’ in Canadian aboriginal law – the Report of the Royal Commission on Aboriginal Peoples, the Charlottetown Accord, the Kelowna Agreement and now UNDRIP. It would seem that they will soon be joined by the Report of the Indian Residential Schools Truth and Reconciliation Commission. These various documents all have one thing in common. They are directed towards honouring the Crown’s promise in the Royal Proclamation of 1763 rather than towards a ‘reconciliation’ process through negotiation which enables Canada to exploit indigenous land. There can be no reconciliation unless the honour of the Crown is upheld and aboriginal peoples are given back the lands and rights they enjoyed before contact.

The Muskrat Falls dam stands as a symbol of the dire situation in which indigenous peoples find themselves. Now that the dam is completed and partially filled, the land can never be recovered and nothing can save it for those who hold true to the core belief that land is held on a sacred trust to be preserved for future generations. The last generation to lead a life according to indigenous tenets of belief and practice is fast dying out, and with them the wisdom which could help all Canadians to turn back the Doomsday clock and prevent the catastrophic genocidal and ecological disaster about to befall the indigenous peoples on ‘Turtle Island’.

Rafael Lemkin wrote:

Genocide has two phases: one, destruction of the national pattern of the oppressed group: the other, the imposition of the national pattern of the oppressor.4

In 1948, the United Nations rejected Lemkin’s wider definition of genocide but, in the provisions of UNDRIP, many of the actions of state governments which are proscribed are genocidal under Lemkin’s definition. It remains to be seen whether the current Trudeau government and the Canadian settler nation have the courage and commitment to turn away from its catastrophic path.