Pacts for Full Recognition of the Canadian Aboriginal Rights - Coursework Example

Contents Contents 1 Introduction 2 History of Land Claims 3 Royal Proclamation of 1763 4 Political Reasons for Proclamation 6 Rights 7 How Claims are evaluated and settled? 8 Legal and Constitutional Framework 9 Unfair attitude and Bias 14 Social and economic impacts 16 James Bay Hydroelectric Project 16 Conclusion 18 Works Cited 21 Introduction To make economic and social alignment and adjustment between two different societies, the Federal government of Canada and the aboriginals entered into different treaties and pacts to decide upon full recognition of the rights of the aboriginals. These land claims and the overall process was extensively based upon negotiations mainly between Federal Government and aboriginals however, provincial governments as well as other third parties were involved too. The process is based upon legal treaties and concepts outlining the claims and rights of the Métis, Indians and Inuit. The history of land claims and the Royal proclamation of providing land to aboriginals date back to 1763. Under the Royal Proclamation of 1763, an unspecified tract of land for Aboriginals and restricted the purchase or inhibition of that land by non-aboriginals. This reserved land is now called Canada however; British government as well as the subsequent Canadian governments after 1867 legitimized the European settlement in the area. These practices and the overall gradual possession of non-aboriginals of Canada have therefore made the local population of the land a smaller minority which is now virtually non-existent. This possession of Canada therefore has made aboriginals a smaller minority. Over the period of time, there have been many efforts to issue different legislations to further define the rights of aboriginals for further reducing their rights on the land which was given to them as their own land. This position paper will discuss aboriginal land claims and how the overall legislative framework of the country has affected it. Further, it will also argue as to how unfair practices and legislations have affected the rights of aboriginals in Canada. History of Land Claims Since the establishment of UN Working Group on Indigenous People, there has been a constant debate on defining the foundational nature of relationship of indigenous people with their own lands. The spiritual, culture, economic, political as well as social nature of this relationship therefore outlines that the aboriginals perceive their lands in a relatively different manner. Due to this fundamental nature of the relationship, the issue of land from which indigenous people have been dispersed or evacuated is considered as fundamental issues to be settled with on urgent basis. This trend therefore is not only particular to Canada but to other countries such as Australia and New Zealand also. As a result of colonialism, aboriginals are left with very little land of their own to maintain the survival of their communities and their political as well as economic survival. (Nadasdy) In the past, there has been constant bias towards aboriginals in terms of their land claims and disputes. When Rocky Mountain National Park was built in 1885, aboriginals who used this area for the purpose of hunting and food were forced out of the area and were not allowed to come to the Park. Similarly, further efforts were made to force out aboriginals from their hunting grounds in order to make room for new residential areas as well as parks and other commercial activities. These smaller events do indicate that there has been a bias in terms of allowing aboriginals to settle down or claim the land which was their own. As discussed above, that the land claims mainly focused upon the intense negotiation between Federal, Provincial Governments and third parties with aboriginals in Canada. These negotiations not only defined the rights of aboriginals in Canada but also set up a legal infrastructure and framework which potentially governed the issue of rights. Land claims are also cited as the legal actions taken by first nation to reclaim the land which it believes was taken over by the crown illegally or by force. Legally, land claims can also arise if there is a dispute or disagreement between aboriginals and the Crown over determining the exact rights of aboriginals. It is therefore critical to understand that land claims are individual in nature with each land claim has its own particular history and context within which it is being analyzed. Land claims therefore are not based upon claiming the land in its entirety but rather focus upon individual pieces of lands however, these land claims even can include entire cities also. The overall legal structure of the land claims, court decisions as well as new and old court decisions may redefine the land claims in their entirety therefore the issue of land claims is often considered as a complicated issue involving different socio-political, economic as well as legal factors governing the behavior of First nation and the crown. (Stenbaek) Royal Proclamation of 1763 The overall history of land claims and subsequent legislations starts with the Royal Proclamation of 1763. The Royal Proclamation was issued by King George III to establish administrative arm of the government over North American areas which were formally ceded by France to Britain. This proclamation also established the constitutional framework for negotiation of different treaties with the aboriginals of the area. The overall importance of this document can be established from the fact that this document is often considered as Bill of Rights for Indians in North America. (Calloway) It is important to note that this document set the foundations for establishing colonial governments in different parts of Canada but also recognized the rights of aboriginals on different areas of Canada. Though under this proclamation, certain areas such as Hudson Bay, Quebec were excluded from the list however, some other areas were assigned to aboriginals in recognition of their ability and power to fight. This document therefore proved as one of the single most important document to explicitly describe the rights of aboriginals. Proclamation set out some important rules and regulations in place which secured the rights of natives in the land. For example, one of the key terms of the proclamation restricted the purchase of land from first nation by any private party including companies. This was enacted in order to ensure that first nation keeps its rights intact while at the same time ensure that private selling and buying is restricted. Further rules set out that if first nation wanted to sell the land, it will first sell it to the crown and crown than have to decide whether to sell the land to the private parties or not. However, any subsequent sale of land should be done with the prior approval and negotiation with the First Nation. There were three main and important points which were explicitly described and discussed in the proclamation regarding the process of land claims. First, it was necessary that for any sale of land, a meeting must be held between the aboriginals and the crown or the Federal government. This condition was put as a necessary condition to improve the participation of all members of First Nation into the overall process of land sale. It was also explicitly decided the land of aboriginals will only be sold to the crown and lastly, it was also decided that any direct land purchase from aboriginals will be considered as illegal. Political Reasons for Proclamation It has been argued that one of the key reasons to provide aboriginals security and a reserved piece of land to inhibit was motivated by the political reasons. One of the key reasons was that British government was willing to stabilize the Western Frontier and the old colonies. This stabilization therefore gave British government a much needed breakthrough to focus its energies on other critical issues to settle with. It is also critical to note that the Proclamation, though, recognized the rights of First Nation however, it also subjected them to the British Empire. According to the proclamation, aboriginals were considered as subjects of the British Empire- a fact which was never accepted by First Nation despite gaining the rights to the land. Later treaties such as Treaty 8 and Treaty 11 were made in order to ensure that the political and economic reasons of Federal Government. These treaties were made because of the discovery of Gold in Yukon area and the discovery of Oil in Norman Wells during 1920. As per the perception of different groups of First Nation, these treaties were done to maintain peace and friendship rather than being utilized to gain commercial benefits. Different bands from First Nation repeatedly asserted that these treaties were made and are being obliged because they were concluded by their elders to maintain peace and friendship. However, these treaties were ultimately used by Crown and Federal Government to expel them from their own lands. What is critical therefore to understand that these treaties have the cultural background also wherein First Nation concluded these treaties as a gesture of friendship & peace in order to maintain political stability in the region however, the same were used against them to expel them from certain regions and even take away their rights to hunt and fish in areas where they were legally allowed to carry out these activities. (Miller, Vandome and McBrewster) Rights It is critical to understand as to under what rights aboriginals actually claim their land according to the Proclamation of 1763. Basically, First Nation claims its land under treaty rights and aboriginal rights. Though these rights primarily govern the rights of the lands but issues such as fishing, hunting, trapping as well as continuation of observing the cultural rights also falls under this. Treaty rights are the rights which are given under a specific treaty and the land claims process therefore operates under the conditions laid down in any given treaty. For example, in Robinson Treaties, aboriginals were given some specific rights in Ontario whereas Crown, in return, got some other concessions. The concept of reserve land also arose while giving the treaty rights to the aboriginals as under the conditions, aboriginals may claim that a reserved piece of land was either not properly surveyed or has been occupied without their information or will. As such, the land which has been reserved for the First Nation keeps their rights intact and any exploration or even modification cannot be done without the consent of aboriginals. Further, the misuse of the land by Federal government may also come under this and aboriginals can claim their land on the pretext of misuse by the government. An aboriginal right is not usually based upon any written treaty between Federal government and First Nation however, aboriginals can claim that the land belong to them under aboriginal rights. If any land is actually claimed under this right, government will therefore have to negotiate with the aboriginals to even gain access to the area claimed and further negotiate about the rights of each party regarding any specified piece of land. Normally, as a result of such negotiations, government determine a fair compensation to the aboriginals however, this compensation is not based upon the actual cash value of the land claimed by aboriginals as their own. How Claims are evaluated and settled? The overall process of claims is considered as a complex issue requiring the intervention of not only the government but that of other stakeholders. The complex layers of courts and court rulings also make it relatively difficult for government and First Nation to actually settle the claims smoothly. The overall process is not only complex but also requires significant time and effort on the part of different stakeholders involved. The sequential process of claim settlement requires Office of Indian claims to evaluate, research and decide if the claims are based on facts. The overall process of researching therefore takes on average 20 years to complete which involves not only researching about the land but also about different other aspects involved which can hamper the rights of other stakeholders. A claim to reach the stage of settlement therefore goes through different stages such as research and negotiations. Negotiation process in particular is considered as lengthy in order to allow each party involved a chance to gain something out of the overall negotiation process. There is a Specific Claims Branch responsible for settling the claims wherein aboriginals actually submit their claims. Branch, based on the documents submitted by First Nation, research the claim and validate the same. Specific Claims Branch in collaboration with the Justice department than proceeds to decide if there is substantial evidence available to proceed on the matter and decide as to whether the claim is justified or not. If the justification for the claim is established, this branch enters into negotiation process with the First Nation and if the claim is not verified and justified, negotiation process does not start and the claim is discharged. The Indian Claims Commission has also been established in 1991 to make an independent commission which could not be politically influenced. This commission was actually established to hold public inquiries into the claims made by aboriginals and which have been rejected by the government. This commission was actually established to remove that ambiguity and element of bias in the overall process of claim settlement. There have been other provincial and government organizations which also cover the comprehensive claims. Indian Claims Commission however, only looks for the specific claims and also supports the overall negotiation process between the government and the First Nation to arrive at a negotiable solution. (White) Legal and Constitutional Framework Though it is argued that most of the rights enjoyed by the Aboriginals is because of the Canadian courts however, the judicial history of the country suggests that there have been unfair judgments and practices to discourage the overall process of land claim. The rulings of Supreme Court of the country during last few decades however, were particularly favorable to the first nation. Over the period of time, there has been complete ignorance by the government to take any serious note of the land claims by the Aboriginals. Courts were also considered as biased towards this issue and most notably, this lack of interest was mainly due to racist approach of both the government as well as the judiciary of the country. One of the key reasons as to why government ignored the rights of First Nation was based upon an effort to civilize aboriginals. In a bid to civilize them and to discourage the protection of their culture, federal government took lesser interest in settling the land claims. Government remained under the impression that by blocking the land claims, government can actually force them to shed their culture and become civilized. Another important reason as to why government took very little interest in the land claim disputes was the court rulings and legislative orders passed from time to time. During 1885, the Judicial Committee of the Privy Council ruled that natives can only have a claim to land based upon their occupancy. If a land is not occupied and later on claimed by the Natives, the same may not be claimed under this ruling. Another unfair judgment came in 1888 when Judicial Committee of the Privy Council ruled that natives only got the rights because they were given by the Crown. This judgment therefore implied that Federal Government is not binding on the decisions of the Crown and can take these rights back and withdraw them. The constitutional act of 1867 further provided an absolute authority to the Federal as well as Provincial Governments over the land as well as reserved land. This legislation therefore further weakened the position of natives in terms of claiming their land and put their interests in direct conflict with that of the government. Another complex issue which remained as one of the key legislative challenges was the defining of lands under the Constitutional Act 1867. There have been many ambiguities in terms of defining who the real Indians are as well as the powers of Provincial governments to manage unexinguished land. Section 35 of Constitution Act 1982 however, further formalized the role and existence of Indians in the region. This was probably for the first time that this act recognized Indians, Inuit and Metis as the Canada’s aboriginal people. Their rights were considered under Canadian Common law and further consolidated these rights as collective rights. The rights were however, recognized as a result of the practices, culture, customs and traditions of aboriginal people which were enjoyed by them before European settlement in the region. Under Section 15 of the Charter of Rights and Freedoms, every citizen is considered as equal in the eyes of the law and there shall be no discrimination against any group or individual. This section has remained one of the most important and much used sections by the aboriginal people to dispute the decisions made by the government and even courts. This legislation further clarified that the equality of rights however does not prevent government and courts to actually work in the interest of disadvantageous people of the land. This charter therefore not only provides some protection to the aboriginal people but also asks for balancing the act in such a manner that unprivileged and under-privileged citizens of the country are not vindicated and victimized and their rights are taken care of. As per Section 25 of the Charter, reconciliation between the rights of aboriginals and others should be balanced. Further, the rights given to aboriginals are based upon groups and as such rights enjoyed by individuals are also considered as the rights of the groups. The Charter of Rights and Freedoms therefore was one of the positive efforts made in order to ensure that all the citizens of the land actually get equal treatment and the rights and obligations of each citizen are protected. However, despite such emphasis on equality of the rights, the overall behavior and actions of the courts have not remained positive. Over the period of time, court rulings have been largely against the aboriginal people. Paulette Case in 1973 brought forward an important issue of how treaties were drafter and understood by the representatives of First Nation. Denes, one of the bands of First Nation, contested that written treaties do not contain what was perceived and understood by the people who signed these treaties on behalf of First Nation. It was argued that the written versions of treaty 8 and treaty 11 actually failed to reflect the actual understanding of elders who signed these treaties. Subsequent court rulings by Supreme Court of Canada clearly outlined that there were significant doubts over the fact that these treaties actually extinguished the aboriginal title. (Foster, Raven and Webber) Indian Act of 1876 was also enacted in order to end the distinct way of Indian living and to control the political, economic as well as social sphere of Indian life. Though treaties were considered as agreements in their own sense however, Indian Act 1876 remained one of the dominating legislative frameworks which governed much of the interaction between Federal Government and First Nation. Indian Act was therefore considered as a serious effort to curb the rights of self government of Indian people as well as breaking the overall spirit of treaties which were made earlier. As per the current concept of human rights, this act was also considered as violating the basic human rights and subjected people of First Nation under extreme hardships and seclusion. . This act also set some fiduciary responsibilities of the Federal Government to take care of the Aboriginal land as well as money and other resources so that they can be protected. However, this act gave this authority to the Minister for Indian Affairs and other authorities rather than giving the same control to the Aboriginals. This aspect of the act therefore put the rights of aboriginals at stake while at the same time allowing Federal Government to violate the right of self government of aboriginals. Indian Act was also detrimental to the interests of Indian woman who married to non-Indians. According to the provisions of this act, any Indian woman marrying to a non-Indian will lose her status and band memberships. This section was subsequently challenged in the Supreme Court of the Country during 1973 however court upheld this section. It was however, later on taken to UN Human Rights Committee which gave its ruling that this section violates International Covenant on Civil and Political Rights. As a result of this ruling, amendment in constitution was made to restore the status of Indian woman marrying to a non-Indian. (Asch) Calder Case is considered as one of the landmark cases in the history of Canada wherein Supreme Court of the country specifically laid down certain principles and rules regarding the aboriginal title and the rules and responsibilities of Federal government in securing the rights of aboriginals. Though Lower Courts refused to give any ownership and credibility to the aboriginal title to their lands however, Supreme Court, for the first time, acknowledged that aboriginal title did existed at the time of Royal Proclamation. This judgment therefore is also considered as the first instance wherein judicial system of the country actually acknowledged the existence of aboriginal title and paved the way for subsequent changes which initiated the process of land claims. (Kulchyski) Though natives lost that case as Supreme Court gave a split decision however, despite this, Canadian Government initiated a comprehensive program for land claim settlement and initiated the process which gave some hope to aboriginals to actually reclaim their lands. Similarly, British Columbia also started to recognize aboriginal claims and paved the way for much larger scale land claim process. Unfair attitude and Bias Canada has an unquestionable history of voicing against racism and was one of the few countries which adapted a comprehensive policy for encouraging multi-culturalism. However, despite such history, Canada’s domestic policies do not seem to corroborate its historical stand on this issue. The life standards of minorities especially that of aboriginals is far inferior as compared to the living standards enjoyed by the majority. (Kaplan). Life expectancy is relatively low in aboriginals; their level of education has been low whereas there is a large unemployment existing in aboriginals. These figures suggest that there has been a historical process of violating and deliberately marginalizing a political majority which once existed. Land claims therefore may also be considered as one of the steps towards further marginalizing political majority of the country and taking away economic means of survival also by occupying the lands which provided ground for hunting and fishing for aboriginals. Despite the complex web of treaties and legislations, there has been a constant argument that Federal and Provincial governments in Canada were not fair in terms of honoring their commitments. Right from 1800’s, it was felt by aboriginals that government is not only revoking the rights given under earlier treaties but were also not fulfilling the oral promises. One such revocation involved the rights of aboriginals to hunt anywhere in the crown land however, it was later on changed and aboriginals were forced out from many areas which were traditionally used by them for the purpose of hunting. History of Canada is considered as the history of colonization of aboriginal people as they were not only subjugated to extreme social and political pressures but their land was occupied too in order to settle White Population in the region. It is argued that colonization need not to be in the shape of military occupation but can also occur to subjugate a nation by occupying agricultural and other resources of the nation. In case of Canada, this is exactly what happened as Crown and later on Federal and Provincial governments kept on making changes which gradually eroded the political and economic power of aboriginals and finally marginalized them in order to possess large and unextinguished tracts of land. It has been estimated that the First Nation has almost 98% of their original land due to different treaties and legal decisions. Such massive land occupation therefore has made Canadian history look like the history of Colonization by occupying the land which belonged to aboriginals but were forcefully and illegally taken over for commercial and other purposes. Case like Haida Nation and Taku River clearly outlined as to how Provinces neglected the right to be consulted on any lands claimed from these nation. In both of these cases, it was maintained that First Nation were not consulted on the actions taken by the government of British Colombia however, B.C. argued that it was not required to do so as no treaties were being formulated. Supreme Court of the country however, ruled that, in the honor of crown, it is the responsibility of government to take care of the right to consult of the aboriginal people before any land claims are made or processed. This ruling of the Court therefore put relatively extra pressure on the Government to consult with the First Nation regardless of the fact that any land claims were made or not. This was however, done in the name of honor of the Crown as the court have to rely on a certain principle to give native people a right to being consulted for important issues pertaining to their living. Social and economic impacts One of the key arguments put forward in this regard is based upon the violation of the rights of people who have already settled on the land which is now claimed under the land claims. Many argue that the land claim process has significant social and economic impacts on those who have already settled on the lands. The negotiation process between the First Nation and the Federal Government is also viewed as gains to the first nation and a quantifiable loss to others. However, the losses incurred by aboriginals are hardly taken into consideration while deliberating on the misuse of aboriginal land for commercial purposes. James Bay Hydroelectric Project James Bay Hydroelectric Project was considered as the project of Century however as time passed on, it became clear that this project has some serious social and political repercussions for aboriginals. In the first phase of construction of this project, aboriginals were never informed about this and were forced out of the region where this project was planned to be built. What is also significant to understand that this project became a symbol of violating the rights of aboriginals and this issues became more sensational due to increase world awareness towards how the rights of natives have been violated all over the world including Canada. Cree- aboriginals living in the Northern Quebec area claimed that despite receiving huge amounts of money in compensation, this project has radically altered the way their community living was. The basic argument was therefore based upon the notion that the construction of this project has destroyed the community living and thus forcing Cree from freely practicing their own culture and social life. Further, since main economic source of survival for Cree people in the area was fish therefore contamination of water has reduced their options to rely on fishing as their sole source of employment and earning. Further, the erection of roads has further allowed importation of goods like Alcohol which has further damaged the community living of Cree people in the area. As a result of large scale construction activities in the areas, some of the hunting fields were badly damaged too thus further reducing the hunting options for indigenous people in the region. Further, the permanent jobs which were created as a result of this project were not given to Cree people thus further subjecting them to economic loss. (Linton) It is also important to understand that due to development of this project, natives living in and around this area were subject to different diseases. As a result of a change in lifestyle brought about by this project, natives changed their eating habits and started to take on diet based upon refined food. This shift from traditional fish based diet therefore created mal-nutrition, diabetes, and other diseases. It has also been reported that smaller towns of natives around the project witnessed increased psychological symptoms such as depression, wife beating, teenage pregnancies etc. This project therefore significantly affected the way natives used to live in a community based living and the cost they paid to make a shift towards modern living has been relatively large enough. The systematic subjugation, undermining of the cultural values, suppressing political rights of the native communities as well as socially marginalizing them has potentially destroyed vibrant and beautiful cultures which could have added more color and charm to Canada. Conclusion Canada is a multi-cultural country with representation from different nations which contributed towards its development and progress. However, its history is full of bloodshed, economic and political suppression of indigenous people living in the area since centuries. Royal Proclamation of 1763 gave specific rights to aboriginals and established their ownership rights on land and other resources of the area. This proclamation is also often cited as the bill of rights for aboriginals as this document, for the first time, explicitly set out and attempted to establish the rights of indigenous people. However, as country started to progress and made its transition towards modernity, it started the practices which clearly violated the basic human rights of aboriginals living in the area. By gradually occupying the lands reserved for aboriginals and validating them through dubious treaties and court rulings, Federal and Provincial governments in Canada attempted to kill the culture and community of aboriginals. Various treaties as well as agreements and acts were specifically made in order to occupy the lands of the aboriginals for commercial as well as other purposes. Projects like James Bay Hydroelectric project virtually killed the community living of natives and subjected them to a cultural change for which they were ill prepared. Though it has been argued that this has been done in order to include natives into the mainstream society however, this seems to have back-fired and despite such efforts natives done little to adapt the new culture. Land claims therefore were initiated by Canadian government to enter into the process of negotiation with the natives to settle their claims on lands which were their but were later on occupied by the Federal and Provincial governments. Land claims therefore served as a way to give back what originally belonged to natives. Works Cited Asch, Michael. "From Calder to Van der Peet: Aboriginal Rights and Canadian Law, 1973-96." Havemann, Paul. Indigenous Peoples’ Rights in Australia, Canada, & New Zealand. Oxford: Oxford University Press, 1999. 428-445. Calloway, Colin. The Scratch of a Pen: 1763 and the Transformation of North America. . Oxford: Oxford University Press, 2006. Foster, Hamar, Heather Raven and Jeremy Webber. et Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights. Vancouver: UBC Press, 2007. Kaplan, David H. "Two Nations in Search of a State: Canada's Ambivalent Spatial Identities." Annals of the Association of American Geographers 84.1 (1994): 46-67. Kulchyski, Peter. "Calder." Mills, Don. Unjust Relations: Aboriginal Rights in Canadian Courts. Oxford: Oxford University Press, 1994. 61-126. Linton, J J. The James Bay Hydroelectric Project- Issue of Century. 1992. 09 April 2012 . Miller, Frederic P., Agnes F. Vandome and John McBrewster. Royal Proclamation Of 1763. Toronto: Alphascript Publishing, 2010. Nadasdy, Paul. ""Property" and Aboriginal Land Claims in the Canadian Subarctic: Some Theoretical Considerations." American Anthropologist 104.1 (2002): 247-261. Stenbaek, Marianne. "Forty Years of Cultural Change among the Inuit in Alaska, Canada and Greenland: Some Reflections." Arctic 40.4 (1987): 300-309. White, Graham. "Treaty Federalism in Northern Canada: Aboriginal-Government Land Claims Boards." Publius 32.3 (2002): 89-114. Read More