Since September 17, 1999, the media debate over the Marshall Decision of the Supreme Court of Canada on fishery rights has been framed around two self-serving colonial positions. The Chretien Liberals advocate refurbishing Indian Act segregation with limited fishing licenses under its control, and refuse to negotiate on a nation-to-nation basis. The Canadian Alliance, together with a corporate ‘fisheries alliance', are colluding with the Liberals, arguing that First Nations already enjoy too many pivileges. They oppose what they call a "race-based fishery" policy, spreading hysteria in our coastal communities. Neither are for the peoples -- Mi'kmaq or fishermen -- setting the agenda.

Something happened in Vienna at the World Conference on Human Rights held in June 1993 which merits attention. It concerns the story of the missing ‘s'.

At issue was the insistence of the official Canadian delegation at the conference to have the final conference document refer to indigenous peoples as indigenous people -- a critical difference in terms of definition, with significant legal ramifications.

The original conference draft referred to peoples, as did the Bangkok and San José regional declarations. Nonetheless, at Canada's insistence, the final paragraph adopted reads as follows:

Paragraph 11:

Indigenous People;

The World Conference recognizes the inherent dignity and the unique contribution of indigenous people to the -- development and plurality of society and strongly reaffirms the commitment of the international community to their economic, social and cultural well-being and their enjoyment of the fruits of sustainable development. States should ensure the full and free participation of indigenous people in all aspects of society, in particular in matters of concern to them. Considering the importance for the promotion and protection of the rights of indigenous people, and the contribution of such promotion and protection to the political and social stability of the States in which such people live, States should, in accordance with international law, take concerted positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people, on the basis of equality and non-discrimination and recognize the value and diversity of their distinct identities, cultures and social organization.

Canada's position is very self-righteous when it comes to the Native question. This position is expressed in the document the government issued in preparation for the World Conference on Human Rights, titled: Canada at the World Conference on Human Rights. Under the chapter on "Canada's Record: Rights of Indigenous People" we get a picture of how the government of Canada approaches the issue:

Aboriginal peoples of Canada enjoy the same rights and freedoms as other Canadian citizens and are entitled to all the same services and benefits from government.

This is a source of confusion from the outset. Citizenry refers to membership in the body politic. It is conferred irrespective of a person's national or racial origin, sex, age, religious or other affiliation. To say that "Aboriginal peoples of Canada enjoy the same rights and freedoms as other Canadian citizens", is like saying that people of Italian origin or blacks in Canada enjoy the same rights and freedoms as other Canadian citizens. Those who are familiar with the Canadian Constitution will recognize this as an assertion which merely reveals that, when it comes to citizenship, Canada adheres to a policy of ghettoisation. It describes Canadians on a racial and linguistic basis and on the basis of national origin and "ethnicity", dividing them between those who allegedly belong to the "two founding nations", "Aboriginal peoples", "ethnics" and "visible minorities". As far as telling us anything about the rights of Aboriginal peoples, the above statement is devoid of meaning.

A people refers to a collective, in this case a nation. As peoples, the indigenous peoples of Canada have a relationship not with other Canadian citizens but with the Canadian federation. It is known that the Canadian constitution is delinquent when it comes to recognizing the nations of Canada's indigenous peoples and this is precisely the issue at hand. The government of Canada persists in treating the Aboriginal peoples on a racial basis, which is why it is willing to accommodate the formulation Aboriginal people, but not recognize them as peoples.

The document continues:

In addition, Aboriginal peoples have a variety of unique rights that pertain to them alone, such as Aboriginal and treaty rights, which are protected in the Canadian Constitution.

The issue of the Aboriginal and Treaty rights is yet another extremely sore point and this statement adds insult to injury. The unique rights of the Aboriginal peoples are precisely their hereditary rights -- rights which pertain to them and them alone by virtue of the fact that they are aboriginal peoples. But these are precisely the rights which the government of Canada does not recognize as witnessed by its "native policy". Were the government to recognize them, it would have to recognize the Native nations and their right to self-determination.

Instead, it is making much ado about recognizing their hereditary right to self-government. Without the right to self-determination, the right to self-government is reduced to permission to take over the administration of areas such as health care and education. Many fear that this is, in essence, a move on the part of the federal authority to divest itself of its fiduciary and moral responsibilities towards the Native peoples. As a result, Native nations are proceeding with great caution by insisting that nothing will abrogate their treaty rights.

At the time of the conquest and up to the 19th century, what is called the "Indian policy" was diplomatic and military in orientation. In other words, both the English and the French conquerors recognized the Native nations. Besides other proof, it is known that they sought and formed alliances with various nations on a sovereign and independent basis. Their policy towards these nations was military and diplomatic, which means they were forced to form alliances with them for purposes of defence and for purposes of making advances in the fur trade, in exploration, etc.

In 1763, at which time the problem of settlement began to be posed, the Crown gave an assurance by Royal Proclamation, that the Indians would not be disturbed in their territories beyond the settled colonies. Indian land could be surrendered only to the Crown and only by a General Assembly of Indians. This system formed the basis of the later treaty system. There are many areas of Canada where treaties were not made including Newfoundland and Labrador, Quebec, the High Arctic, most of the North West Territories, the Yukon, most of British Columbia and parts of the Maritime provinces. However, in Ontario, which was then called Upper Canada, in those places where the lands belonging to the Indian peoples were needed for settlement, treaties were made to extinguish Aboriginal rights to the land according to the principle of the Royal Proclamation of 1763. This also took place in what is today Manitoba, Saskatchewan and Alberta. In the older colonies in the Maritimes and in Quebec, in contrast, treaties were made involving promises of peace and friendship, but they generally did not involve land cession.

Today, interpretation of promises made through the treaties is one of the biggest points of legal contention. For instance, the Gunshot Treaty of 1787, which covered lands along the shore of Lake Ontario and as far inland as a gunshot could be heard on a clear day (about 19 km) led to such ambiguities that the Mississauga are still not satisfied with its interpretation, in spite of a more comprehensive treaty signed with them in 1923. The so-called Numbered Treaties, signed between 1871 (Treaty Number 1) and 1921 (Treaty Number 11), are also hotly contested. They were land cession treaties signed by the Dominion of Canada when it acquired the Hudson Bay Co. territories in 1870. They generally provided for reserve lands in proportion to population (usually 128 acres per capita); a token annual payment to each person; farming and agricultural assistance; schools and education assistance; ammunition and fishing twine; uniforms, medals and flags for the principal chiefs. Fishing and hunting were to continue as before, subject to government regulation from time to time.

Much of the discussion which took place at the time of the signing of the treaties was not included in the treaties themselves and subsequent interpretation by the government of Canada has been imposed on the Native peoples by means of the courts. For instance, Treaty Number 6 provides that a medicine chest shall be kept at the house of the Indian agent. The Native people have pointed out that in modern terms this represents a promise of free medical care. The courts ruled that the promise entitles Treaty Number 6 Indians to free medicine but not free medical services. Another example is the promise of certain school facilities. The Native peoples have pointed out that in modern terms this means free education to the post-secondary level but the government does not agree.

Clearly, the treaty system was the expansionist arm of the "Indian policy". The issue to understand is that any interpretation of these treaties on the basis of old definitions is unacceptable. This really is at the base of all disputes.

What is called the second phase of "Indian policy" covered the period from Confederation to the mid-20th century. At the time of Confederation, the Constitution assigned legislative jurisdiction over "Indians and lands reserved for Indians" to Parliament. One distinct department dealt with civil rights and status Indians and another with reserve lands. The first federal Act was passed in 1868, based largely on earlier legislation of the Province of Canada. In 1869, further legislation was passed which entrenched the policy of assimilation and laid the basis for the genocidal treatment of Native peoples for the next century.

This Act considered Indian status as merely a transitional one, until such time Indians were assimilated into the "European way of life". Towards this end, measures were taken to have them adopt European agricultural methods, and have them educated in missionary schools away from their families and tribes so that they would lose their language, culture and traditions. The Act provided for enfranchisement whereby any indigenous person who applied for Canadian citizenship lost their Indian status. The policy of enfranchisement led to over 20,000 people of Indian origin "losing" their Indian identity, in legal terms, between 1876 and 1974.

The first so-called Indian Act was adopted in 1876, the civilian Indian Department having replaced the military-authority and the legal concept of Indian status having replaced the policy of dealing with Indian nations. Today the Indian Department, which became a federal office in 1868, is called the Department of Indian Affairs and Northern Development (DIAND). Up to the time the Indian Act of 1876 was revised in 1951, all "Indian policy" was made by the federal government without consulting Indians. By the mid-twentieth century, due to the complete failure of its policy of assimilation to eliminate the Indians, and due to the state of misery to which the Indian people had been reduced, the government was forced to hold a series of consultation meetings between 1968-69.

In June 1969, the government issued a White Paper which completely ignored all the priorities stated by the Native peoples. Instead, the government merely proposed getting rid of the problem by putting an end to Indian status and repealing the Indian Act. The opposition of the Native peoples and general public opinion to this attempt of the government to wash its hands of all responsibility was so fierce that the government was forced to retreat. Nonetheless, it did not amend the Act. It subsequently persisted in its attempts to accomplish the same thing through other means.

In 1974, an Office of Native Claims was established to represent the federal government in claims negotiations with Native groups. According to the Indian Act, Parliament has the right to make laws in relation to "lands reserved for the Indians". Under Canadian constitutional law, the federal government has the power to bargain with Native groups for the release of Native land rights. Once such a release is given, the lands come under the provincial ownership of crown lands and natural resources and the federal government loses all rights to deal with such lands "on behalf of the Natives". A federal-provincial agreement is needed to apply the Indian Act as concerns federal management of surrendered Indian reserve lands.

In Canada, the land rights of the Native peoples are largely undefined but they have been described as usufructory. This refers to a right defined by Roman law to use land owned by another. In other words, this land is technically owned by the Crown and the Indians have the right to use it according to set terms. As defined by the Indian Act, the land is communal in nature, belonging to the group rather than to any individual member. It cannot be bartered away except by the group to the Crown in right of Canada.

In the 1970s, including transferring federal expenditures on programmes and services to provincial and band authorities, the federal expenditure on Native peoples lagged far behind that spent on the society at large. In 1978-79, total federal expenditures for these programmes and services amounted to $829 million, or 1.7 per cent of the federal government's annual budget. During this time, per capita expenditures on the Indian population increased by 15 per cent whereas for non-Indians they grew by 128 per cent.

In the Constitution Act 1982 and in the first amendment to the Act in 1984, Aboriginal and treaty rights are included for the first time giving land claim settlements constitutional force. In 1983, the Penner Report was issued which recommended to the House of Commons the formation of a special committee on Indian Self-Government. It proposed to provide Indian communities with options for new forms of band government to replace the limited structures under the Indian Act. It recognized that Indian nations were self-governing before and recommended the establishment of Indian government as another order of government separate from the federal and provincial. "Present policy aims to replace ‘paternalism' with self-determination, assimilation with cultural development and destitution with personal and community well-being", the report says.

The Canadian government today has no intention of righting historical wrongs against the Native peoples by recognizing them as nations. To do so would be to recognize their right to self-determination and sort out the issue of their land title. This would place the decision-making power squarely in the hands of the Native peoples, wherein the Indian nations and federal government would have to bargain as equals. Racist policy would be ended once and for all, including the government's broad discretionary powers to regulate life on Indian reserves and, to a certain extent, off reserve. The prerogative of the Crown to veto any decisions which concern the Native peoples would be ended.

To avoid this, the government has persisted in advancing its notion of Indian self-government. This is another term for home rule as applied to the bantustans in South Africa, for which the system of reserves in Canada was the model. This third level of government would be no more representative than the federal and provincial governments are in the society at large.

In light of the history of Native policy , the following statement made by the government of Canada in its document for the Human Rights Conference in Vienna can only be called a complete whitewash of its racist approach to the problem. The document reads:

Since the earliest moments in the development of this nation, the relationship between Canada's first peoples and non-aboriginal Canadians and the sharing of land and resources have been major challenges. The important place of Aboriginal peoples in the Canadian social fabric has too often been ignored. Non-aboriginal Canadians have increasingly acknowledged, and deplored, the social, economic, and political inequities faced by the first peoples.

Instead of taking responsibility for its racist and genocidal policy by ending it, it persists in its attempt to describe the problem as one between Aboriginal and non-aboriginal Canadians, thereby perpetrating the racist division of Canadian society. It also fails to clearly acknowledge the government's responsibility to right historical wrongs against the Aboriginal peoples.

The next paragraph in the document produced by the Government of Canada in preparation for the Vienna Conference on Human Rights seems intended to give a picture of the composition of Canada's Aboriginal populations. However, it is so limited that it can be dismissed. One wonders whether the government's intention in including it is to overawe the reader as to the magnitude of the problem of recognizing the rights of the Native peoples. Or, perhaps, it is just the government which is flummoxed at the thought. The document reads:

The Aboriginal peoples of Canada are very diverse. Among Canadian Indians there are 10 major linguistic groups, some 58 languages and six distinct cultural regions. The Inuit speak Inuktitut, within which regional variations are identifiable. Some Metis have developed and use a language called Michif. Over one million Canadians report Aboriginal origins, 626,000 of whom identify with an Aboriginal group.

This paragraph follows:

In the 1950s, governments and Aboriginal peoples of Canada began to reverse decades of political, economic and cultural decline. As a result, Aboriginal peoples are achieving progress in a number of areas, including improved health and living conditions, enhanced economic development and greater access to quality education.

The Report of the Standing Committee on Aboriginal Affairs published in December 1992 points out that the high mortality from house fires (as much as six to ten times higher than national figures) can be attributed to unsafe woodstoves, lack of safety devices in the home and inadequate fire protection services. The same report shows the following: (Please see the sidebar for the highlights of the report .. The Editor)

The figures on incarceration are among the most infamous. Nine per cent of the federal penitentiary population are Aboriginal people, although only 2.5 per cent of Canada's population is of Aboriginal origin. According to the Final Report, Task Force on Aboriginal Peoples in Federal Corrections, 1988, the full extent of the problem is not known because statistics underestimate the extent of Aboriginal representation in the federal correction system. In the West, however, representation is higher. For example, in Manitoba, 40 per cent of the prisoners at Stony Mountain federal penitentiary were Aboriginal in 1991, as compared to 22 per cent in 1965. The Report of the Aboriginal Justice Inquiry in Manitoba, 1991, points out that the percentage is even higher than 40 per cent in provincial jails while, according to an independent survey, Aboriginal people represent 11.8 per cent of Manitoba's population.

As is happening throughout society, the government's aim is to enforce cutbacks in all social services, not guarantee the health, education and welfare of the population. This is being done in various self-serving and underhanded ways and the peoples are very aware of this.

In this regard, on September 2, 1992, Phil Fontaine, Grand Chief of the Assembly of Manitoba Chiefs pointed out that self-government proposals ring hollow because the federal government is chipping away at treaty rights, which, for example, guarantee universal health care for Aboriginal people. He said that Native people in Manitoba would not participate in a plan by Health and Welfare Canada to have Blue Cross administer non-insurable benefits for the province's 60,000 status Indians... "It is privatisation of health care under the guise of streamlining and efficiency," he pointed out. "But our fear is that privatisation eventually means user fees. And then this is no longer a right -- a treaty right -- which our ancestors negotiated with the federal government… We have just completed negotiations on the so-called Canada round of constitutional reform. The Constitution is supposed to be a demonstration of fairness and generosity and good will. And so we have great difficulty believing this when at the same time we have the government making decisions like this one where it argues our traditional rights no longer exist."

This, of course, is not the only example. Another is the axing of the ACCESS programme in Manitoba which funded post-secondary education for Aboriginal peoples, amongst others, in areas such as education, social work, engineering and nursing. Cost-shared between the federal and provincial governments, it was axed right at a time when more Native students were completing high school and entering university. And there are many more examples.

The current attitude of governments, which reflects their policy towards society at large, is that the education, health and welfare of the Aboriginal peoples is merely an expense to be first cut back and then gotten rid of. It would therefore be more accurate if the government were to state the real facts, rather than give a false impression. The fact is that once the policy of "assimilating" Native peoples failed in its attempt to extinguish the Native nations, the governments reversed this policy and recognized their "cultural distinctiveness". The impulse this recognition gave to Native languages and cultures has merely compounded the problem for the federal and provincial governments because it brought into sharper relief their economic backwardness and social inequality and the need to sort out the political and constitutional injustices done to them.

The main problem with the government's portrayal of the social and economic conditions of Canada's Native population is that it presents a one-sided "positive" picture. In fact, neither the trend towards the impoverishment of people of Native origin has been reversed nor is the government's current policy one which will reverse it. This is both a reflection of the trend in the society at large, as well as a consequence of the fact that instead of recognizing the hereditary rights of the Native peoples in Canada, the government's policy is self-serving, based on manoeuvring to rid itself of the problem at the cost of the Native peoples. So long as this remains the case, this trend will not change.

The government's document produced for the Vienna Conference then proceeds to outline "Canadian Domestic Initiatives". Instead of sorting out the political and constitutional issues, it is pursuing what it calls its Native agenda. The document says:

The document cites "a few examples from the four stated objectives of the Native Agenda", which are 1. "to accelerate the settlement of land claims"; 2. "to improve economic and social conditions on reserves"; 3. "to improve the relationship between Aboriginal peoples and governments", and 4. "to address the concerns of Aboriginal peoples in contemporary Canadian life."

One gets several impressions from the above reading, of which the foremost is that Canadian policy towards Canada's indigenous peoples is enlightened, merely a matter of facing some "challenges". The entire thing is government-speak which obscures all points of principle and clarifies nothing. Once again, everything revolves around the story of the missing ‘s'.

The main issue in considering the so-called Native Agenda is that this is the government's agenda, not that of Native peoples. When it comes to the problems of the Native peoples, the question is who sets the agenda? This is the major issue within the society at large as well. Canada's system of representative democracy is in deep crisis. This crisis is caused by the fact that there is no mechanism in place for Canadians to actually choose their political representatives whom they can then elect to parliament or choose the agenda which parliament adopts, let alone that of the government. On the contrary, the Canadian Electoral Law guarantees that only political parties, which represent less than two per cent of the population, can select candidates for election. The choice of the Canadian electorate is then reduced to voting for one of these candidates who are misnamed "representatives". The government for its part, is formed by whichever of these parties achieves a majority of seats and it is completely beyond the control of Canadians. The Cabinet formed by the party in power has the legal right to set policy.

When the Canadian government talks about Native self-government and a third level of government, it refers to incorporating the Native peoples into the same system which has been imposed on society at large -- a system which is no longer consistent with the requirements of a modern society. The Charlottetown Accord on the Constitution even sought to give this system a constitutional guarantee and Canadians soundly rejected this attempt. Since then, governments are proceeding with the same thing through other means.

The Penner Report issued in 1983 already acknowledged that the Native Peoples had self- government before. Nonetheless, today it is presented as something new, as an achievement and an innovation. This is done so as to divert the Native Peoples into believing that they are making an advance. In fact, the attempt to give this mechanism a constitutional guarantee was for the purpose of eliminating once and for all the demand for the recognition of the hereditary rights of the Native peoples. This is a demand of all Canadians, not the Native peoples alone. Any formulation which does not get rid of the Crown's prerogative, i.e. veto power, over the Native peoples will not redress the historical wrongs committed against them and it will continue to block the path of advance for Canadian society. The very first and most important historical wrong committed against them was their subjugation, accomplished by refusing to recognize them and by dealing with the peoples of Aboriginal origin on the basis of race. Constitutionally, the problem is resolved by giving constitutional recognition to the Aboriginal nations and tribes and renewing the basis of the Canadian federation.

A division of powers between the federal government and the governments of the Aboriginal nations has to be negotiated on the basis of a free and voluntary union. How the Native peoples choose their governments and who will represent them is their own decision. These advances can only be achieved on the basis of abolishing the prerogative of the Crown. If, constitutionally, sovereignty were to reside in the people of Canada, all citizens entitled to vote and to draft the constitution would necessarily right this historical wrong in order to constitute an enlightened country. They would also ensure that, constitutionally, citizenship is defined according to membership in the body politic, irrespective of a person's race, national origin, wealth, gender, religion, politics, ability, etc. This would correct the problem whereby the polity is divided according to race, "ethnicity", language and national origin wherein not only people of Aboriginal origin, but all those labelled "ethnics", "visible minorities", and so on are discriminated against and everyone, without exception, who is not accommodated and allowed into the establishment is marginalised politically as a result of the present political process.

While the rejection of the Charlottetown Accord gave the federal and provincial governments the opportunity to abide by the wishes of Canadians to draft their own constitution, they and the establishment's political parties rejected this option. They simply declared after the referendum that it was "business as usual". This means that people of Aboriginal origin both as citizens and as members of various nations and tribes, must take matters into their own hands and work, along with all Canadians, to empower themselves. They should go against the attempt to impose a so-called representative third level of government on them which, far from empowering them, has proven itself to be a mechanism to keep the people disempowered and keep the veto power and policy-making authority in the hands of the federal and provincial cabinets. Forms of consultation are a necessary part of a democratic process. However, they are meaningless without a guarantee that the members of the body politic can exercise their sovereignty. They must set the agenda themselves and implement their decisions.

The right to self-determination was one of the earliest rights recognized by the international community. It appears in the United Nations Charter as the "respect for the principle of equal rights and self-determination of peoples," in Article 1, paragraph 2 and in Article 55. It also appears in the Economic, Social and Cultural Rights Covenant and the Civil and Political Rights Covenant, Article 1, paragraph 1 which reads: "All peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."

Clearly, then, recognizing the indigenous peoples as peoples is a far cry from the formulation used by the government of Canada: "a positive, comprehensive approach to shaping a new relationship with the Aboriginal peoples of Canada -- a relationship based on the principles of partnership, equality and respect."

It is interesting to note that in recent years, the strength and capacity of the right to self-determination has been diminished in international covenants with the inclusion of the concept of territorial integrity within the Charter of the United Nations, all in the name of stability. This has occurred as dominant state systems have fashioned their polities on the basis of denying peoples within their own states the right to self-determination. A case in point is that of the Indian polity which has included the concept of territorial integrity within its constitution and made calls for secession an indictable offence. The issue of secession however is many times used as a diversion. What most of the peoples and nations are demanding is social, economic and political justice, not secession. Instead of facing up to the challenges which face societies, governments are turning the claims of various peoples upon society into "law and order" questions. A typical example of this occurred at Oka, Quebec in July 1990. However, there is no dearth of examples since this is the trend to divert peoples from dealing with real problems, perpetuate the racist division of society by portraying problems as "secessionist" and leading to "the breakup of national unity" or "destroying the territorial integrity and unity of the nation" as in the case of India.

Canadians rejected this approach to problems during the Referendum Campaign when they defeated the hysteria raised by official circles which sought to identify those who would uphold the right of the nation of Quebec to self-determination as enemies of Canada, or who sought to give a constitutional guarantee to the hereditary rights of the Native peoples as enemies of the Native peoples. It is also reflected in the words of Mr. Dennis Marantz in Vienna whereby he attempts to justify the elimination of the word peoples from the final declaration of the World Conference on Human Rights on the basis of announcing that the Native Peoples may decide to use this to secede.

The story of the missing ‘s' therefore provides yet another example of current attempts to narrowly define self-determination in order to negate its very essence. The form in which self-determination is expressed is, by definition, up to those claiming it to decide. The claim of the Aboriginal peoples to their nations is a birthright. A right belongs to the holder by virtue of their being. It cannot be given, taken away or in any way usurped or forfeited. Therefore, the agenda for all Canadians, irrespective of their origin, is to open the way for the progress of their society by giving this right constitutional guarantee.

The issue of Who Sets the Agenda is at the root of the problem facing peoples everywhere. It is a fundamental matter of where sovereignty lies. People of Native origin will make headway in this historical period by joining forces with all those who seek to empower themselves so that they, not governments in right of Canada, can decide their agenda and make the decisions which that agenda gives rise to.

Life Facts

n Life Expectancy at Birth
In 1981, life expectancy at birth for status Indians was approximately 10 years less than that of the national population, the same as it had been 20 years earlier.

n Infant Mortality per 1,000 Live Births, 1986

n Suicides per 100,000 Population

nSuicide Death Rates 10-19 Years: Indian and Canadian, 1986 -1990 (4-year rate) per 100,000

nViolent Deaths per 100,000 Population (includes death from house fires)
1981 1986

n Labour Force Activity [1991] Unemployment Rate (%)

nAverage Individual Income, 1986

nAverage Family Income, 1986

nIncome Over $40,000, 1991

nIncome Under $20,000, 1990

nEducation: Level Attained for Population 15-49 yrs, Aboriginal Peoples & All Canadians, 1991 (%)