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Symposium On Amerindians: Indian Land Claims And Rights

Lloyd Barber

SASKATCHEWAN INDIAN      FEBRUARY 28 1975      v05 n03 p07  
Dr. Lloyd Barber has been the Indian Lands Claims Commissioner since 1969. Since his appointment by the Privy Council of Canada, he has done extensive research Into Indian Land Claims. His job is not to make judgement on the claims but rather to work with both the governments and the Indian people to, process the settlement. Following is a speech he gave to the symposium on Amerindian to the Royal society of Canada.

Indian grievances have been with us in this country since the early stages of European penetration of the North American continent. Until very recently, they have received minimal public attention. During the 1960's, the Federal Government made attempts to form an Indian Claims Commission, which would act as an adjudicatory body and would have the authority to settle claims brought before it. As I understand it, the legislation, which was never passed, would have created a Claims Commission in Canada not unlike the Indian Claims Commission in the United States. In the late 1960's, the government apparently decided that not enough was known about the nature and extent of Indian claims to launch into an adjudicatory process. Accordingly, the government found it preferable to arrange for extensive preliminary study and consultation before establishing special processes for claims settlement.


Funds provided

Special funds were provided to Indian organizations so that they could carry out research on grievances and rights and subsequently articulate their claims At the same time, the government undertook to appoint someone outside the Indian community and outside government, to enquire into the issues, in consultation with Indians, and provide an independent "outside" source of advice. As a result, I was appointed Indian Claims Commissioner in December of 1969. Essentially, my job is to make recommendations on machinery or processes for settlement. I have no authority to settle claims though I can and do attempt to evaluate specific claims, which come to my attention for the purpose of making recommendations on how to go about settling the issues involved.


Christianity

The colonial policy of Great Britain with respect to Indians in Canada was set out in a Royal Proclamation in 1763 shortly after the Treaty of Paris. The history of native lands prior to that time is very interesting and is relevant to current issues in the St. Lawrence Valley sad in the Maritimes. In the early 1600's, with the establishment of Champlain's colonies in the St. Lawrence Valley, the settlers were involved with the Indian people of the area in the r trade, the economic lifeblood of the colony. Thus the Indians were essential partners with the colonists from the very early days.

Efforts to convert the Indian people to Christianity and to European ways were undertaken by missionary societies. Some Indian colonies were established under the auspices of the missionaries but the favored method was for missionaries to go out among the tribes in their homelands and work with them. While the fur trade grew and expanded, the population of New France during the French regime was not large, being fewer than 100,000, and such agriculture as was carried- on around settlements did not seriously encroach upon Indian lands. France, as a colonizing nation did not form an explicit theory of aboriginal title and did not treat with the indigenous people for surrender of their rights in the land. This, as we shall see later, poses special problems for Indian claims in those areas of the country originally colonized by France.

After the transfer of New France to Britain, various British precedents and practices with respect to Indian lands began to be applied. These were confirmed by the Royal Proclamation of 1763, which followed immediately upon the cessation. The Proclamation provided for the protection of Indian lands from settlers and others until such time as the Indian rights to the land had been surrendered to the Crown. In effect, it precluded anyone other than the Crown from dealing with Indians for land and laid the basis for the treaty-making process in Canada. This process, which in certain respects is still underway, resulted in the surrender of Indian rights over vast territories, the creation of Indian reserve lands, and the establishment of a variety of promises in exchange for native land rights.


Treaties

The first of these treaties in Canada was carried out in Southern Ontario and was very simple in format. The Indians involved simply surrendered their rights for cash payments, some reserve land, and the right to hunt and fish on unoccupied Crown land. However, as settlement moved westward, there evolved a somewhat better deal in .he light of adjustment faced by Indian people as settlement came upon them. The treaties gradually evolved to a format where the government agreed to additional provisions for health, education and economic development.

The major treaties cover Indian people in Ontario, the Prairie Provinces, the Northwest Territories and parts of British Columbia. For Indians in most of British Columbia, in the Yukon, in Quebec and the Maritimes, and for the Inuit, there have been no treaties or minor treaties only. Under the B.N.A. Act, responsibility for Indians and Indian lands was vested in the Federal Government (by contrast Australian responsibility for Aborigines was vested in the states). In 1867, the Inuit were not though of and no mention was made of them. However, a Supreme Court decision of 1939 defined Eskimos as Indians for purposes of the B.N.A. Act. As a result of this history and other details which I have not sufficient time to explore here, about half of Canada's registered Indian people and the Inuit have not had treaty settlements with the Canadian government. The position of Canada's non-status native peoples is an entire story in itself.


Grievances

From these circumstances flow two broad classes of Indian claims and grievances in Canada. The Indians covered by treaty claim in general that treaty provisions have not been fulfilled; that promises made at treaty time were not recorded in the treaties and have not been lived up to; that lands set aside for Indians were surrendered under dubious circumstances, thus depriving many Indian people the opportunity for economic self-sufficiency in a new way of life; and that, in general, the spirit of the treaties has not been lived up to by the various governments in Canada. While there are a variety of specific claims falling into this category of misfeasance, malfeasance and nonfeasance, one concrete example will, serve to elucidate some of the issues and some of the complications in dealing with even the simplest of these claims.


Treaty 7

Treaty 7, which covers southern Alberta, has a provision which requires the payment to the five bands of Indians involved of $2000 worth of ammunition each year unless ammunition becomes comparatively unnecessary, at which time, the $2000 will be spent otherwise for the benefit of the Indians with their consent. The Indians claimed that t hey received ammunition intermittently if at all and that their consent was never received for other expenditures. On this basis, they asked for 90 years back payments with interest - a sum of some $650,000. Following the production of inconclusive records by the Federal Government, negotiations began with the Indians sticking by their $650,000 figure and the government countering with $160,000, or 80 years of ammunition payment without interest. An agreement was reached for $250,000 plus $25,000 expenses.

I would like to say that this matter has been settled. Unfortunately, not all of the stipulations have been agreed upon. One of these was that the Indian bands would decide how the money was to be split amongst them. This they have not decided. Two of the bands are large in, size and understandably interested in a per capita distribution. Three of the bands are small in number and understandably desire a five-way split of $250,000. This by way of example of the great complexity involved in settling this kind of claim.


Claims

The other broad category of claim stems from the lack of any original settlement of the native right in the land. While the circumstances vary somewhat from area to area in Canada, the basis for the aboriginal claim in British Columbia, the Yukon, the Northwest Territories, Quebec and the Maritimes has its roots in common law as emphasized in the Royal Proclamation as outlined previously.

When the present boundaries of Quebec were established in 1912, the Quebec Boundaries Extension Act obliged Quebec to recognize the native interest in the added territory and to compensate for it. As the Act states " . . . the province of Quebec will recognize the rights of the Indian inhabitants in the territory above described to the same extent, and wilt obtain surrenders of such rights in the same manner, as the Government of Canada has heretofore recognized such rights and has obtained surrender thereof, and the said province shall bear and satisfy all charges and expenditure in connection with or arising out of such surrenders".

You are all aware, from the press coverage of the events, of the efforts of the natives affected to stop work on the James Bay hydro project pending the settlement of the Indian rights in the land in northern Quebec and of the judgment rendered in their favor by Mr. Justice Malouf. Negotiations between the Government of Quebec and the native people of the north are in an advanced state of progress.

We can expect to hear more in the near future on this important extension of the historic process of recognizing rights in the land possessed by pre-European inhabitants.

In the Yukon, negotiations are underway between the Federal Government, Territorial Government and the status and non-status Indians of the Territory. These negotiations arose following the presentation of the paper "Together Today for Our Children Tomorrow" by the Yukon Native Brotherhood to the Prime Minister and some of his colleagues. While negotiations are slow and difficult, progress is being made in working toward a concrete recognition of the rights of the native population to land, neither surrendered by treaty nor seized in combat.


Negotiations

The Northwest Territories is a case different from all others. In the first place, the vast bulk of the Territories, a million square miles or so is Eskimo country. The Inuit, you will recall, have no treaty. They are now engaged in putting together their position on land claims and in conjunction with this effort are undertaking, with the support of the Department of Indian and Northern Affairs, a land use study to determine the traditional patterns of movement over and use of that vast country. Preliminary discussions to outline the issues are now underway and progress is being made.

The MacKenzie River area, including Great Slave and Great Bear Lakes, has traditionally been Indian country. This area, some 450,000 square miles, is covered by two treaties. Treaty 8 was done in 1899 and covers the region south of Great Slave Lake and includes most of the north half of Alberta, part of northeastern British Columbia, and some of northwestern Saskatchewan. Treaty 11, done in 1921, covers the remainder of the MacKenzie River area.

Both Treaties 8 and 11 provide for reserve lands of 640 acres per family of five. These reserves were never established

Dr. Lloyd Barber
Dr. Lloyd Barber


Symposium On Amerindians: Indian Land Claims And Rights

SASKATCHEWAN INDIAN      FEBRUARY 28 1975      v05 n03 p08  
in the Northwest Territories and the treaty provisions remain fulfilled. From time to time, here have been attempts to settle these treaties. In 1959, a Commission under Mr. Justice Nelson of Prince Albert examined this situation and made recommendations. No action was taken.


Treaties 8, 11

The Indians of the Northwest Territories claim that Treaties 8 and 11 did pot have the effect of removing their native title in the land but were merely treaties of peace and friendship. Mr. Justice William Morrow in his judgment in the celebrated caveat case, added weight to this view by indicating that he thought the Indians had a sufficient interest in the land to be allowed to file a caveat against the land.

Since the judgment came town in the fall of 1973, the, Indians of the Northwest Territories have further developed heir thinking in relation to heir interest in the land. In a recent speech in Saskatoon, Mr. James Wah-shee, President of to Northwest Territories Indian Brotherhood, summed up the thinking of Territorial status and non-status Indians this way, "The Indian and Metis people of the Northwest Territories at a historic, week long meeting at Fort Good Hope in June, 1974, declared their continuing ownership of 450,000 square miles of traditional land and rejected land surrender in return for compensation as a land settlement model. In so doing, they embraced an approach to settlement of native claims, which is a radical departure from the tradition of dealing with the land rights of Indian people. They have rejected the notion that land settlement necessarily means the extinguishment rather than the preservation of rights."


Gov't reluctant

For its part, the government is reluctant to become involved my process, which might appear to be a re-negotiation of treaty. However, there is recognition of the fact that the treaties in the north, which were virtually carbon copies of treaties made much earlier in the south and are based upon options that agriculture would substitute for a hunting economy, are not satisfactory northern conditions. In areas of the north, 640 won't keep one moose alive let-alone a family of five.

Because the land provisions of provisions 8 and 11 are unfilled, the government is prepared engage in discussions to a comprehensive settlement in the Northwest Territories. Very preliminary discussions have been under with the main topic of being the form and for further discussion and negotiation.

Maritimes, the Indians at title to their land was extinguished by the few lone in the area. As one this, they point to the lack of any compensation as is in other treaties, both post confederation.

While the Maritime region was under French control, the Micmac and Malecite Indians were allies of the French. When Acadia was ceded to the British in 1713, the British claimed that the resident Indians thereby became their subjects and that title to their lands fell to the British Crown. Both the French and the Indians denied these assertions.

The French maintained that the Indians had been allies, not subjects, of the King of France. The French could not, according to that reasoning, have transferred to Britain a sovereignty and land title, which they did not hold themselves.


Aboriginal claim

To date, the issues of aboriginal claim in the Maritimes has neither been fully acknowledged nor repudiated. The Union of Nova Scotia Indians has advanced a strong position asserting their right to be included within the aboriginal rights negotiation process. The Federal Government policy on these issues, enunciated in August, 1973, is: "In all these cases where the traditional interest in land has not been formally dealt with, the government affirms its willingness to do so and accepts in principle that the loss and relinquishment of that interest ought to be compensated."

"There are other areas of the country where no treaties of surrender were entered into, such as southern Quebec and the Atlantic Provinces. The government's view is that and claims in these areas are of a different character from those referred to earlier in this statement."

The situation in British Columbia is moving along, but slowly. A couple of years ago the Union of British Columbia Chiefs submitted its claims for redress based on the loss of traditional use and occupancy of land in British Columbia.

Since that presentation, the claim of the Nishga Indians, which related to their traditional homeland in the Naas Valley was fought to a draw in the Supreme Court of Canada. However, the Government of Canada has entered into negotiations with the Nishga and into discussions concerning the larger issues in British Columbia.

Unfortunately, so far, the British Columbia government has not acknowledged any responsibility for the aboriginal rights of its native inhabitants. As in other areas of the country, failure by the provinces to participate fully in the process of redress can render the possibilities for satisfactory resolution of the issues very difficult, if not impossible.


Band claims

In this brief overview, I have tried to provide a summary of the background and current situation regarding two main categories of Indian Claims in Canada. In doing so, I may have concentrated unduly on the comprehensive and aboriginal rights areas to the detriment of the more specific land loss and band fund type claims. However, even a brief run through of a few representative cases would lake far more time than is available. Let me simply state that it is quite likely that all 550 or more bands in the country will have one or more of the specific type claims regardless whether they are located in the treaty areas or the non-treaty areas of the country.


Basic approach

All this, of course, points to a need for machinery to deal with the various kinds of grievances that the Indians will bring forward. In this regard, it is useful to look to the experience of the United States where there have been two basic approaches to settlement of Indian claims.

The first of these is the Indian Claims Commission; a special tribunal, which was, established nearly 30 years ago and which has now completed something over half of its work. This body has carried out its work by relying on an adversary process whereby the Indians and the Justice Department argue the issues before the Commission which, after hearing the cases, issues a verdict. This approach has not been satisfactory. It is slow, costly, and does not seem to get at the sense of grievance, giving rise to the claims, but rather relies upon money compensation to settle the issues. Canadian Indians have not favored this kind of an approach.


Well prepared

The second approach, used in Alaska, draws from the experience of the Commission, but relies on negotiation, and attempts to relate settlement to current and future needs of the people. The Settlement Act, passed in December, 1971, calls for a cash payment of roughly half a billion dollars over a' period of years, together with royalty payments of roughly half a billion dollars more and a land allotment of approximately 40 million acres, which is in the order of 15 per cent of the State. These assets are to be administered through native corporations and the general idea is that they will be used for social and economic development.

In contrast to this experience, we in Canada have just begun to recognize the need to settle Indian grievances fairly and honorably. Appropriate mechanisms are slow to evolve because of the complexity of the issues and the reluctance of Indian people to get locked into any process, which has the capability of providing solutions, which to them would be unsatisfactory. The Indians have been engaged in a period of researching their claims. Many are now coming forward in a well-prepared manner. However, the process of research and articulation of claims is far from over. It would be inappropriate, in my view, and counter productive to lock in to any given settlement mechanism until such time as processes now underway are given much greater opportunity to work through to fruition.

In the meantime, ad hoc negotiation on specific issues is taking place. As I have pointed out, a great deal of negotiation or discussion leading to negotiation is underway at present and while there have been few settlements so far, the process is working in a healthy direction, despite its inherent "messiness". This is not to say that arbitration machinery will not be necessary, but simple to point out that the experience in courts in Canada, and in the Claims Commission in the United States, has caused Indian people in this country to shy away from any process which has finality inherent in it.

I hope this outline gives you some appreciation of the current state of Indian claims in Canada. I would like to close with some observations on the implications of all of this for Indians and for other Canadians.


Difficulties

In simple term's, we are faced with a backlog of grievances which go back 100 or 200 or even 300 years in history. Normally, our governments do not attempt to go back this far in examining and correcting injustices and it is easy to see why this is so as a general rule. The case for Indian grievances, however, is unique and exceptional.

The original people of this country have never been in a position to make their case and insist on their unique rights.

Until very recently, their grievances have' not been fully brought to light because of serious weaknesses in communication and the very one-sided nature of the relationship between Indians and others in this country. Indian grievances are not new to Indians nor are they new to the Department of Indian Affairs. The rest of us, however, have not known much about them and the Indians have never been in a position to put their claims forward in a clear and forceful way, which would make them fully understandable to us. For this reason alone, if is valid that these very old grievances be dealt with now, in spite of all of the difficulties.


Distrust

There is an additional and overriding reason why the grievances must be dealt with in a just and equitable manner. Over the years, the relationships between Indians and the government have been such that strong feelings of distrust have developed. This distrust goes far beyond distrust of government to the entire society, which has tried, since day one, to assimilate Indian people. Indian people, who once dwelt proud and sovereign in all of Canada, have resisted with stubborn tenacity all efforts to make them just like everybody else. If seems to me that it is from these roots that all of the grievances stem. Indians have constantly insisted, and will continue to insist that they are a special people who have an inherent right to a special status as a nation within a nation.


Rightful place

Indians are concerned with their future as Indians within a large and powerful society and culture. They are now demanding in an educated, articulate and forceful way, that past transgressions against their special status and special rights be cleared up as a pre-condition to their self determination about how they will fake their position, proud and independent, side by side with us in shaping a new future. They have given up much in this country, and they feel that the assistance they receive from the government to achieve those objectives must be seen as a right in recognition of this loss and not merely as a handout because they are destitute. In short, the grievances are real, the claims arising from them are genuine, and redress must be provided if our native peoples are to find their rightful place in this country.

The implications of all of this for Canadians are significant. Extensive settlements in the north and elsewhere will give natives a strong position, economically and politically. It will no longer be necessary to indulge in token involvement because in many areas they will have the power to play an increasingly important part in the developments, taking place.

This presence will, in many ways, make things difficult for white developers and governments who, want to hurry on with frontier developments but it seems to me that this will be much healthier than the consequences of development which does not include native people in a direct and influential way.

Recent signs of militancy by some Indians must have made even the most indifferent Canadian aware that native frustration is building and that we cannot expect that native people will much longer confine their misery to their own communities as they have in the past.


Canadians

Finally, it seems to me, that we Canadians, rich and successful beyond the fondest dreams of our ancestors, have an unique opportunity to demonstrate to our native brethren and to the world that we can deal with a different internal problem in an enlightened way and to show that people can resolve their differences, complicated and historic though they be, and live harmoniously through democratic processes.