Chapter 11. First Nations from Indian Act to Idle No More
The White Paper and the Red Paper demonstrated how far out of sync Ottawa was with respect to the Aboriginal leadership across Canada. It was, however, a moment in Canadian history that catalyzed First Nations groups into new political action.
When one looks at the period between the Great War and the late 1960s, it might seem that Aboriginal peoples mustered very little opposition to colonialism. Although resistance was widespread, and small victories were won at the immediate, on-reserve level, the systemic obstacles to Aboriginal protest were too significant to be bypassed. Aboriginal people who held Status could not vote until 1960, so that avenue was closed. Moreover, although band leadership was typically elected, it was often at the mercy of the local Department of Indian Affairs Agent, whose interests were very frequently at odds with those of the bands. In the 1920s there were two telling developments. Section 141 of the Indian Act forbade bands from hiring lawyers to pursue entitlements or damages owed by the federal government; raising funds to do so was itself a criminal offence. In a stroke, Ottawa had criminalized legal action in support of Aboriginal rights. Almost simultaneously, the RCMP was directed to be more aggressive in suppressing Aboriginal cultural events: one outcome of Dan Cranmer’s potlatch in 1921 at Alert Bay was the arrest of more than 40 participants, and the conviction and imprisonment of roughly half their number. (Another outcome was the confiscation and subsequent loss of several generations’ artistic creations, sacred items, and cherished family possessions.) Starting in the 1930s, Aboriginal people from Coast to Coast found themselves being relocated. In Nova Scotia in 1942, for example, 20 settlements were consolidated into 2 to ease administrative and assimilationist processes, entirely in the face of Mi’kmaq opposition. Housing and services were inadequate for the growing populations, and by the 1950s, the provincial government in Halifax lost interest in trying to fix the mess the Federal Government had created.
At mid-century, a similar situation emerged on the Labrador Coast. Davis Inlet (aka: Utshimassit) was attractive to coastal traders from the late 18th century on because of its deep natural moorage. At around 1870, the Hudson’s Bay Company offered Aboriginal traders access to inoculation against smallpox and a variety of trade goods, but the site had no profound, traditional meaning to the Innu who visited it only when it served their purposes. Missionary work in the region was intermittent at best until the 1950s. At that time, growing interest and commerce in the region led to an outbreak of alcohol abuse. The missionaries stayed aloof from families and households in which drinking was routine and/or problematic; the Innu who suffered from alcoholism also steered clear of the church and held themselves separate from non-drinkers as well. This phenomenon exposed fissures within the Innu population that — when they were relocated wholesale north to “New Davis Inlet” — became part of a new dysfunctional and divided normalcy. Moving from tents into Euro-style housing appeared — to observers outside the community — to indicate permanence and settlement, but it concealed deep social problems that were to manifest in violence, several kinds of abuse, and horrendous suicide rates.
Like so many other Aboriginal peoples, the Mi’kmaq at Shubenacadie and Eskasoni and the Innu at New Davis Inlet were impoverished by relocation and the structural unemployment that was sustained by anti-Aboriginal racism. Also, they were fearful of further decapitation of community leadership by governments that didn’t seem reluctant to incarcerate troublemakers. First Nations facing these conditions and others struggled to find strategies and tactics suitable for the modern era of colonialism. In 1951 Ottawa lifted the barriers to raising funds for legal challenges, sanctions against the potlatch and other ceremonies were dropped, and steps were taken toward enfranchisement. A new era in Aboriginal-Newcomer relations was about to begin.
Political organizations had been struggling for years, but the White Paper gave them new life, as did 1960s organizations like the American Indian Movement (AIM) and the civil rights movement in the United States. Harold Cardinal (1945-2005) gave voice to Aboriginal concerns at the time in his 1969 book The Unjust Society, which took its title from Prime Minister Pierre Trudeau’s 1968 campaign slogan of a “just society.” The Union of BC Indian Chiefs (UBCIC) and the National Indian Brotherhood (NIB) were established the same year as a further response to the White Paper crisis. The NIB grew out of a foundation established by the Federation of Saskatchewan Indians and the National Indian Council, and its creation also included a divorce from the leading Métis organization.
The movement faced challenges from the outset as First Nations with treaty rights pulled in one direction and those without pursued solutions under Aboriginal rights. The leadership of George Manuel (1921-89) was critical in the early years of the NIB. A Secwepemc leader from Neskonlith on the South Thompson River, Manuel emerged as a capable spokesperson and a theorist. His conception of the Fourth World, a category of largely small and colonized Indigenous populations around the globe, resonated with those advocating for Aboriginal rights, informed the thinking of Aboriginal organizations in Canada generally, and contributed to the establishment of the World Council of Indigenous Peoples, which Manuel led in the mid-1970s. Manuel was able to secure federal funding for research into a variety of native claims and set the movement on a solid financial footing for the first time.
The thrust of the NIB’s efforts and those of its successor, the Assembly of First Nations (AFN), was to obtain progressively greater and greater degrees of self-governance for Aboriginal communities. Social work and child welfare were priorities, although it was in education that the greatest victories were won. As the role of the Department of Indian Affairs and Northern Development (DIAND) was progressively reduced, band offices took up a larger share of local responsibility. The AFN — established in 1978 — played a key role along with the UBCIC in securing recognition for Aboriginal rights in Section 35 of the Constitution Act, 1982.
New Legal Precedents
The first court case to significantly change the landscape of Aboriginal-Canadian relations came in 1973. The Nisga’a First Nation of northwestern British Columbia successfully demonstrated that title to their land had never been extinguished. The Calder Case worked its way through the BC court system and reached the Supreme Court of Canada. Although the Court agreed that Aboriginal title existed before Confederation, it was split on whether title persisted after 1871. The British Columbia government took this as a signal that they owed nothing to the Nisga’a (nor, if it came to that, to any other First Nations with which post-1871 administrations had failed to negotiate a treaty or purchase of land); Ottawa, however, took the view that the Calder decision demanded the start of a new treaty negotiation process. The entrenchment of Aboriginal rights in the Constitution Act gave further weight to this position and, with the election of a new NDP government in BC in 1990, Victoria joined in the process of seeking a new generation of treaties. In 1998 the Nisga’a Final Agreement was reached. By that time, 13 other post-1973 treaties had been negotiated.
At roughly the same time that the Nisga’a brought forward their initial claim, the Cree and Inuit of Northern Quebec sought a legal solution for their own situations. The expansion of Quebec into the Ungava Peninsula in 1911 was meant to be followed by a round of treaty negotiations, which never took place. Despite Aboriginal protests, the Provincial Government’s aggressive mid-century hydroelectricity development program around James Bay uprooted and displaced First Nations. Late in 1973, the provincial courts made it clear that the province’s obligation to negotiate a treaty had not disappeared and, in the year that followed, an agreement was reached with the Grand Assembly of the Cree and the Northern Quebec Inuit Association. Although this was an “Agreement,” it was a “Treaty” in every other respect and is regarded as the first in 50 years. Using the courts to get provinces and Ottawa to the bargaining table was rapidly becoming an accepted process.
Courtroom challenges and precedents were slowly won, and every time a significant watershed was crossed, it happened at the Supreme Court of Canada. In 1990 — the same year British Columbia joined in the treaty-making process — a precedent was set by the case of Regina v Sparrow. Five years earlier, Ronald Sparrow, a fisherman and member of the Musqueam (aka: Xwméthkwiyem or xʷməθkʷəy̓əm) First Nation, was caught using a drift net that exceeded the dimensions permitted by the Fisheries Act. Sparrow admitted the offence but challenged the charge, citing Aboriginal rights provided under Section 35(1) of the Constitution Act (1982). The case was initially lost, but successive appeals were made, all the way to the Supreme Court of Canada where Justices reached a unanimous decision that supported Sparrow’s position. Specifically, any activity or “right” that existed before 1982 that had not been explicitly and specifically extinguished was recognized as continuing unabated. This was the first significant test of Aboriginal rights, and it was an important win for First Nations.
In the case of Delgamuukw v British Columbia, the Gitksan-Wet’suwet’en First Nations decided against the slow federal treaty negotiation process (in which British Columbia’s Provincial Government had initially refused to participate) and sought a resolution through the legal system. At first this went very badly for the plaintiffs: in 1991 Chief Justice Allan McEachern (1926-2008) ruled — contrary to Calder — that Aboriginal rights existed only because, and so long as, the colonial power said they did. Moreover, he ruled that oral tradition did not constitute a viable source of evidence. Also, McEachern’s tone was condescending to such an extent that it swung public support toward the Gitksan-Wet’suwet’en side. The Supreme Court of Canada decided in 1998 that McEachern was wrong in both regards. On the topic of oral history, the court stated:
Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.
As regards Aboriginal title, Delgamuukw was definitive that (a) it existed, and (b) it was exclusive. That is, a province and/or Ottawa could not lay claim to land within traditional territories without extinguishing title first through treaty negotiations.
This decision was further reinforced in Haida Nation v British Columbia in 2004 and as recently as 2014 in the case of Tsilhqot’in Nation v British Columbia, both of which involved provincial forest policies and grants. In the case of Haida, a dispute over corporate access to forest resources on Haida Gwaii (aka: the Queen Charlotte Islands), Crown rights to grant access, and Haida Aboriginal rights to harvest red cedar began in 1961. More than 40 years later, it was decided by the British Columbia Court of Appeals that the Crown has a duty to conduct meaningful negotiations with First Nations over the use of resources in unceded territories and to accommodate their interests. Tsilhqot’in strengthened this position in 2014 in a dispute over licenses to log forests on unceded traditional territory. Once again, appeals took the case from the provincial level to Ottawa and the Supreme Court and, once again, the highest court in the country decided against the Provincial and Federal Governments. The Court concurred with earlier decisions that Aboriginal title exists and, almost ironically, turned the Indian Act back on the governments, stating that a fiduciary responsibility exists between the Crown and Indigenous people. In short, governments cannot hand over to third parties resources that are unceded, since doing so would be to cheat the First Nation in question out of their inherent value. The implications of Tsilhqot’in Nation is still being worked out but, on the face of it, it prohibits resource extraction on any unceded territories without the permission of the relevant First Nation(s). (It is worth noting at this point that the approach taken by settler society has been to identify, catalogue, pursue, extract, and profit from individual and specific “resources” or commodities; Aboriginal societies, in contrast, generally perceive their lands more holistically, not as a vault full of riches from which one may selectively make withdrawals.)
The fact that so many of the key legal precedents come out of British Columbia speaks to its distinctive (although not unique) experience of treaties. Apart from the dozen or so Douglas Treaties signed by Governor James Douglas in the colonial era, and the part of Treaty 8 that spills over from Alberta into the British Columbian Peace District, there were no attempts to extinguish title with the vast majority of First Nations in the province. On the East Coast, as well, the treaty system developed very differently. Treaties were never signed with the Aboriginal peoples of Newfoundland and Labrador. The Mi’kmaq of Newfoundland are politically related to their cousins on the Maritime mainland but not in terms of treaty. The situation for the Innu and Inuit of Labrador is similar. They have had full Canadian citizenship for about a century now, which includes voting rights, and they never have been covered by the Indian Act; thus, notions of Status and non-Status are irrelevant to them. Moreover, they never have been wards of the state. This means that they have escaped some of the worst effects of colonialism but, at the same time, they were rendered invisible to the D.I.A. What the Innu call Nitassinan has been viewed by outsiders as so bereft of human occupancy and culture that the region has been repeatedly pounded by NATO aircraft on training missions.
A different story unfolded in the North West Territories (NWT) beginning in the late 1970s. Ottawa engaged the Inuit Tapirisat of Canada (now called Inuit Tapiriit Kanatami) in negotiations over claims to the eastern third of the NWT (what was, at the time, called the District of Keewatin). The idea of a separate, autonomous Inuit administrative unit gained ground and, in 1982, a referendum of residents of the whole Territory showed overwhelming support for the idea. It took another decade to complete the land claims negotiation process (the Nunavut Land Claims Agreement Act, 1992), and that was followed by legislation that created the new Nunavut Territory. The government in Iqaluit represents a population that is more than 80% Inuit, and Inuktitut is the Territory’s first official language.
Reforming the Indian Act
The White Paper failed at the first hurdle, and the Red Paper set a new agenda for change. Nevertheless, legislative change was slow in coming. The Penner Report in 1983 recommended to Ottawa a form of autonomy that represented to most Aboriginal leaders an advance on what had gone before it, but the government changed, and Prime Minister Brian Mulroney’s administration took a different approach. Informed by a neo-conservative fear of fiscal mismanagement and public dependency, the Mulroney government first looked for ways to reduce spending on band issues. Offering up a kind of municipal-level of self-government, the Tories hoped to dismantle the bureaucracy of guardianship that had existed for a century. To many native leaders, this looked like White Paper 2.0, and they pointed to the implicit shift in dependence from Ottawa to the provinces (to which municipalities are subservient); only a small number of bands perceived it as an opportunity to seize upon. The overall effect of the first year of Conservative government was a sudden increase in rancour and bad press. The Mulroney administration looked elsewhere to secure change.
Efforts were made in 1985 to reform some of the most egregiously discriminatory elements of the Indian Act. The most noteworthy of these changes pertains to Status and Aboriginal women. Before Bill C-31, the Indian Act specified that Aboriginal women who married non-Aboriginal men lost Status. What’s more, children of that marriage also lost any claim to Status. Aboriginal men who married non-Aboriginal women, however, were not similarly impacted. Since bands were (and are) funded based on the number of Status members on their lands, an incentive exists to prevent non-Status members from residing on-reserve and making demands on band services. Loss of Status meant that Aboriginal women and their children got the right to vote, which was offset by their potential loss of community.
The 1985 reforms restored Status to Aboriginal women and children from whom it had hitherto been stripped. It was celebrated at the time as a significant step forward for Aboriginal women’s rights and, symbolically at least, it was. However, the amended law simply carried forward into the next generation the prospect of losing Status through marriage to non-Aboriginals. In that respect, it was more of a temporary amnesty rather than a wholesale elimination of a discriminatory law.
Several factors contributed to the rise of protest tactics among Aboriginal leaders. One was the American Indian Movement (AIM) that appeared in the late 1960s in the United States. Sometimes described as Red Power (in a nod to the Afro-American Black Power movement), AIM inevitably reached across the border to Canadian First Nations with shared grievances against colonialist forces. Beginning in 1970, AIM-style demonstrations appeared in Canada including road blockades, the occupation of government offices, and attempts to seize lands that had either been unilaterally cut out of reserves or never covered by treaty. The frequency of protests increased through the decade, many of which became high profile confrontations. In the North West Territories, Dene mobilized to block the proposed Mackenzie Valley Pipeline. A Royal Commission from 1974 to 1977, chaired by Justice Thomas Berger (b. 1933), accepted much of the Dene case and called for extensive land settlement agreements before the pipeline project could proceed. Effectively, this established a moratorium on a major infrastructural development, a significant win for Aboriginal activists. Similar confrontations took place in northern Quebec over the James Bay hydroelectric development program, a process that hardened Innu and Cree sentiment against Péquiste separatism.
The temper of events cooled in the 1980s, but when it returned, it had changed in tone. The town of Oka, a village to the northwest of Montreal, in 1989 approved the expansion of a private golf course into land claimed by the Mohawk of Kanesatake, and which contained a Mohawk graveyard. The band’s response included a blockade of access to the proposed construction site in July 1990, which engendered the Oka Crisis. Beginning with a party of 30 armed Mohawk band members, a teargas attack by the Sûreté du Québec led to a firefight in which one Sûreté member was killed. The ranks of the Oka protesters grew almost overnight to nearly 100 and then to 600. Another Mohawk community at nearby Kahnawake supported the standoff by blockading access to the Mercier Bridge. RCMP reinforcements were sent to Oka in support of the Sûreté, which were soon augmented by members of the Canadian Armed Forces’ Royal 22nd Régiment (the Van Doos). Seventy-eight days after the confrontation began, the Mohawk forces at Oka stood down. Although the golf course expansion was cancelled, none of the outstanding land claims issues were addressed.
Similar events unfolded at the other end of the country near Gustafsen Lake in central British Columbia in the summer of 1995. Secwepemc spiritual leaders had established an annual sun dance on rangeland claimed by a local rancher, and which was within the traditional and unceded lands of the Secwepemc. Despite initial cooperation between the parties involved, goodwill evaporated in the winter of 1995, leading to a confrontation between Indigenous and non-Indigenous allies against the RCMP. As at Oka, gunfire was exchanged, although there were no fatalities. The RCMP mobilized enormous resources, including helicopters, armoured personnel carriers, and several hundred tactical squad members. In September, the Aboriginal side dismantled its position and left Gustafsen Lake. As at Oka, arrests of protesters followed, and 15 people received sentences of 6 months to 8 years.
Gustafsen Lake was still simmering when another protest flared at Ipperwash Provincial Park at the south end of Lake Huron, where a stretch of shoreline that contained an Anishinaabeg burial site was expropriated from Kettle Point 44 Reserve under the War Measures Act during WWII. Ottawa promised to return the land at the end of the war but did not follow through. In 1994 members of the Kettle Point band initiated a round of occupations and protests to remind authorities that this issue had not been resolved. In September 1995, a group of protesters set up a camp in the park for a more formal and sustained protest. At the outset, the Ontario Provincial Police attempted to achieve a negotiated outcome so as not to repeat the mistakes of Oka, or to echo events concurrently underway in British Columbia. This strategy was replaced by riot police with shields, batons, and helmets. On September 6, the two sides confronted one another in the park, and events quickly spiralled out of control. Gunfire occurred (participants disagree as to whether shots were fired both ways), and Dudley George (1957-1995) was struck three times by a police sniper. Attempts to get George to a hospital were blocked by the OPP, and the man bled out. The sniper, Sergeant Ken Deane, was subsequently tried and found guilty of criminal negligence. The role of the Ontario Provincial Government, led by Conservative Premier Mike Harris (b. 1945), was resolutely opposed to the Anishinaabe protest. Harris was quoted by his Attorney-General as saying “I want the fucking Indians out of the park.”
Four years after Ipperwash, confrontation over resources on the East Coast captured the headlines. The Burnt Church Crisis of 1999-2002 bears similarities with Sparrow in that it proved a test of Aboriginal rights over resource gathering. In this instance, the Burnt Church First Nation, a Mi’kmaq community at the mouth of the Miramichi River in northeastern New Brunswick exercised what they understood to be their right to harvest reasonable amounts of maritime resources, regardless of Department of Fisheries ideas of seasonality. Their attempt to trap lobster “out of season” resulted in confrontations with non-Aboriginals (mostly commercial lobster trappers) who attacked Mi’kmaq equipment and, reportedly, thousands of lobster traps. The conflict expanded into a community-wide civil war with attacks launched by both sides against property and individuals. By 2002 the Department of Fisheries itself was attacking Mi’kmaq boats as the region descended into near-lawlessness. Agreements were reached in the same year that permitted the Mi’kmaq to fish for subsistence and not for commerce, regardless of “seasons.”
Aboriginal people continue to pursue redress, compensation, and rights through legal avenues and protest. Democratic processes are limited in their ability to achieve results because First Nations constitute relatively small and mostly isolated populations with limited ability to secure change through the ballot box. Even at the local level, bands are not always united on the best strategy to pursue and so do not always speak with one voice in formal negotiations. From a historical perspective, attempts to win advances using extra-parliamentary means speaks to the fact that Aboriginal peoples have a working relationship with the Crown and an adversarial relationship with Canada.
- Legal challenges to Canada’s approach to Treaty obligations were essentially illegal until the 1950s, which significantly dampened Aboriginal people’s recourse.
- Resettlement and dispossession of traditional lands accelerated in the 20th century.
- Once legal organization was permitted, new Aboriginal organizations like the UBCIC and the NIB were established to advance First Nations’ concerns.
- Following effective lobbying, Aboriginal rights were enshrined in the Constitution.
- Legal precedents tended to favour Aboriginal claimants beginning in the 1970s with Calder, R. v Sparrow, and Delgamuukw. These cases served to clarify the extent of Aboriginal title and rights, particularly in the absence of treaties.
- The benchmarks for Status were changed in 1985 in a move that remedied the situation of many Aboriginal women and their children.
- The failure of Parliament to address outstanding issues and the costs and slowness of pursuing legal remedies encouraged some Aboriginal leaders to make use of more confrontational strategies beginning in the 1980s, especially where the issues were immediate. Examples include Oka, Gustafsen Lake, Ipperwash, and Burnt Church.
Mohawks watching Oka crisis news on barricades (Online MIKAN no.3602895) by Benoît Aquin / Library and Archives Canada / e has nil restrictions on use.
[Kettle Point Reserve no. 44. Plan showing the Kettle Point and Stony Point Indian Reserves, Ont.] [cartographic material] (Online MIKAN no. 3694469) by Library and Archives Canada is in the public domain.
- Lynne D. Fitzhugh, The Labradorians: Voices from the Land of Cain (St. John’s, NF: Breakwater, 1999), 261-263. ↵
- J. R. Miller, Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada, revised edition (Toronto, ON: University of Toronto Press, 1991), 231-233. See also "George Manuel," accessed January 9, 2016, http://indigenousfoundations.arts.ubc.ca/home/community-politics/george-manuel.html. ↵
- Delgamuukw v. British Columbia,  3 S.C.R. 1010 at para. 84. File No.: 23799. ↵
- Lynne D. Fitzhugh, The Labradorians: Voices from the Land of Cain (St. John’s, NF: Breakwater, 1999), 376-377. ↵
- The ways in which the new laws impose a “two generation cut-off” is described nicely in Thomas King, The Inconvenient Indian: A Curious Account of Native People in North America (Toronto, ON: Anchor Canada, 2012), 167-169. ↵
- Ontario, Report of the Ipperwash Inquiry, Vol.1 (Ontario: Government of Ontario, 2007), 363. ↵