Corporations, Status Indians and Indian Reserves (2018)
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Corporations, Status Indians and Indian Reserves
This essay is based upon a paper submitted for the course Indigenous Peoples and Self-Determination in the Indigenous Learning Department of Lakehead University in the winter of 2018.
Introduction
TOPIC: address the pros and cons of a Status Indian establishing a corporation within an Indian Reserve setting.
In order to assess the pros and cons, it might be helpful to consider what alternatives there may be to such an undertaking, and given that we have been considering self-determination and self-government, to do so from the wider vantage point of historical and constitutional perspectives. Therefore, I would like to approach this topic through the lens of an argument which I have developed elsewhere and will simply apply here. The crucial thread of that argument is that there is a contradiction at the heart of the historical and constitutional story which the Canadian Confederation state promotes as the story of the Crown in Canada. There are various manifestations of this contradiction which I will briefly outline here and then apply to the primary topic of this assignment: the issue of establishing a corporation by a Status Indian in an Indian Reserve setting.
The historical contradiction concerns the unreconciled stories of the major collective historical subjects living within the territories claimed to fall under the jurisdiction of the Canadian Confederation state: First Nations, Inuit, Métis, la nation canadienne, British North Americans, and immigrants and descendants of other nationalities. I will not rehearse here the historical arguments regarding the conflicting stories of these historical subjects, but simply refer to them where it is useful. Simply to say, that although there are people in Canada of many nationalities from around the world, Canada is the Indigenous homeland of many fewer ‘nations’. Immigrants may arrive with a nationality, they do not bring their nationhood with them. I would argue that to presume to do so is the essence of the legal logic of colonialism. Leaving home means leaving something behind. From the vantage point of nationality, that something is the homeland of your nationhood. To presume otherwise, is, I would argue, a cultural and political contradiction of collective identity.
The key to the constitutional contradiction regards S91.24, Constitution Act, 1867, and S35.1, Constitution Act, 1982. The former states that the federal government has exclusive legislative authority over “Indians and lands reserved for Indians”. The latter states that “the existing aboriginal and treaty rights of the aboriginal people in Canada are hereby recognized and affirmed”. These two articles represent a contradiction insofar as they may be reasonably interpreted as i) a claim of exclusive and universal Crown sovereignty, through unilateral legislative statutes, over “Indians and lands reserved for Indians”, and ii) a claim that Aboriginal peoples have rights based upon a treaty relationship with the Crown. The essence of the contradiction can be expressed by the principle that a sovereign does not do treaties with her subjects. S91.24, 1867, in essence, claims that “Indians” are (legislative) subjects of the Crown, whereas S35.1, 1982, claims that Aboriginal Peoples have a treaty relationship with that same Crown. Again, I will not rehearse the details of the argument of a constitutional contradiction here, rather we will simply use it to explore the concepts of a corporation and a Status Indian in an Indian Reserve setting.
Our approach will be to conduct a literature review (primarily based upon course materials) which will allow us to organize relevant documents and concepts that help us appreciate the workings of the above contradictions with regard to the task at hand. Another way to appreciate the workings of the above contradictions is to understand them as various manifestations of the Indian problem for the colonial Confederation state. Ultimately, I see the Indian problem as the fact that the “Indian” represents the unassimilated and unassimilable Other at the heart of the colonial Confederation story. Despite all efforts to construct legal categories designed to coherently integrate the “Indian” into the colonial constitutional order, the “Indian” remains steadfastly Other, the lethal contradiction whose existence and story threatens the legitimacy and reality of the colonial Confederation regime.
To get at this contradiction historically and constitutionally, we will arrange our discussion around the image of the historical treaty table. On one side are representatives of colonial governments (French, British, and Confederation) and on the other side are representatives of Indigenous Peoples. In essence, colonial governments will claim sovereignty over the Indigenous side of the table (S91.24, 1867), whereas, I will argue, the treaty table itself contradicts that interpretation (S35.1, 1982.) Our historical characterization of the treaty table relationship will explore the idea that, on one side of the table, people are living primarily according to positive law in a world of money, maps and clocks — principle tools of colonization. On the other side of the table, people are living primarily according to natural law in a world of tobacco, wampum and dodem doodles (clan symbols.) So it is with this image of the treaty table relationship as our historical and constitutional ground that we will address the question of the pros and cons of establishing a corporation by a Status Indian in an Indian Reserve setting.
To anticipate our literature review in brief, I might characterize Hawthorn in 1966 addressing the Indian problem by focusing on S91.24, 1867 and the Indian Act as the central realities for understanding that problem. By 1983, Penner will be shifting the focus to recognize the constitutional pull of S35.1, 1982 on S91.24, 1867 and he tries to deal with the implications. By 1996, RCAP will be the voice from the Indigenous side of the treaty table which, while acknowledging S91.24, 1867 and S35.1, 1982, will draw attention back to the original nation-to-nation relationship which the treaty table fundamentally represents. So it will be primarily from these three centres of gravity (Hawthorn, Penner and RCAP) that we will attempt to assess the concepts of a corporation, a Status Indian and an Indian Reserve and ask what are the pros and cons, by asking what are the alternatives? Our literature review nevertheless roughly follows the progression of documents in the order discussed in the course, Indigenous Peoples & Self-Government.
International Covenant of Civil and Political Rights, 1966
First, we look at the United Nations International Covenant of Civil and Political Rights, 1966 (ICCPR). Here are some remarks on the ICCPR by the Canadian Civil Liberties Association: “The [ICCPR] attempts to ensure the protection of civil and political rights…the inherent dignity of each individual…based on the notion of non-discrimination…that rights recognized in the ICCPR will be respected and be available to everyone within the territory of [signatory] states…[and] ensures the equal right of both men and women to the enjoyment of all civil and political rights…”[1]
So here we have an attempt to protect the universal civil and political rights of individuals within states. The ICCPR is part of an effort to protect universal rights at the international level: civil and political rights, economic, social and cultural rights, and human rights. The focus of the ICCPR is to protect the rights of non-discrimination and equality of individuals within the territorial jurisdiction of signatory states by binding the conduct of those states to the covenant.
Hawthorn Report, 1966
Interestingly, in the same year as the UN presents the ICCPR, in Canada the Hawthorn Report is published. Here is a brief description from CanadianHistory.ca: “The results of Hawthorn’s comprehensive examination of the economic and social conditions under which Natives lived revealed some shocking statistics…The most significant point that Hawthorn made, however, focused on the empowerment of local band government…The Hawthorn Report introduced a new description of Aboriginal rights in Canada, arguing that Indians deserved better treatment from their government than did most Canadians since their Aboriginal title and treaty rights made them citizens plus.”[2]
While on the international stage the ICCPR is focusing on the protection of the universal rights of individuals around the fundamental values of non-discrimination and equality, the Hawthorn Report feels the need to balance, on the one hand, concerns about inequality and discrimination regarding “economic and social conditions” while, on the other, recommending a unique form of local government based upon the unique rights of Aboriginal Peoples in Canada, Aboriginal title and treaty rights, which make them “citizens plus”.
Hawthorn’s discussion of “citizens plus” and “citizens minus” exposes the fault lines of the Indian problem in Canada. There is a clear tension between the principles of equality and non-discrimination, by which measure Hawthorn assesses Indians socio-economically as “citizens minus”, and the notion of “citizens plus” based upon unique rights such as Aboriginal title and treaty rights.
On the one hand, we have the emerging universal rights of individuals within the context of liberal democratic states. On the other, we have the attempt to recognize the unique treaty relationship which precedes the formation of liberal democratic states. How can the treaty relationship with an historical and political entity which sits across the treaty table from that liberal democratic state be recognized as citizens within and of that same liberal democratic state?
Hawthorn, in 1966, is going to deliberate extensively on the federal-provincial relationships regarding “Indians” based upon S91.24, 1867 and the Indian Act as it stood in 1966. His overall solution is to integrate Indians and reserves, as unique citizens of unique municipalities, into the provincial framework of Confederation. Perhaps one way to characterize Hawthorn, for our present purposes, is to differentiate three standpoints: citizens plus, citizens minus and citizens equal. Hawthorn will say this: “We discuss the possible conflict between the status of citizens plus and the egalitarian attitudes both Whites and Indians hold. On the other hand, the reverse status Indians have held, as citizens minus, which is equally repugnant to a strongly egalitarian society has been tolerated for a long time…” [3]
How are equal rights and distinct rights to be managed? Primarily for Hawthorn, it is through integration into the provincial framework as a unique collection of municipalities. "…The general policy of extending provincial services to Indians should be strongly encouraged…Provincial governments should be encouraged to make the policy decision that Indians are, in reality, provincial citizens in the fullest sense compatible with those aspects of Indian status found in treaties, the special nature of Indian communities, the particular characteristics of Indian land holdings, and certain historic privileges they have long enjoyed under the Indian Act. [4]
At the same time unique local governments are to be encouraged. “Continuing encouragement should be given to the development of Indian local government…The partial ad hoc integration of Indian communities into the provincial municipal framework should be deliberately and aggressively pursued while leaving the organizational, legal and political structure of Indian communities rooted in the Indian Act…” [5] Thus, “Indian communities” will be internally rooted in the Indian Act but otherwise become provincial municipalities. What would this mean for a Status Indian establishing a corporation in an Indian Reserve setting? Hawthorn seeks to deal with the Indian problem by recognizing a class of persons who are not legally and politically just like every other citizen of the Canadian colonial state and involving lands which are not just like any other Crown lands. And yet he seeks to maximize integration into the Confederation framework with minimal disruption.
Hawthorn recommends adjusting the federal and provincial relationship with regard to “Indians” in order to solve the Indian problem inside the Confederation system. First he notes that the BNA 1867 distinguishes Indians from Indian lands. "…s. 91(24) assigns legislative jurisdiction over not one but two subject matters. The principles and cases relevant to the scope of the word ‘Indians’ are not necessarily of assistance in determining what falls within 'lands reserved for the Indians’".[6]
So what is an Indian? “…a person who was once an Indian for purposes of the Indian Act, but has lost his status as an Indian under that Act (e.g. by enfranchisement), may nevertheless continue to be an Indian for purposes of the British North America Act.”[7] It appears we need to distinguish an Indian Act Indian from a BNA Act Indian and, given Hawthorn’s views on integration into the provincial framework, from provincial Indians who are subject to provincial statutes. Hawthorn seeks to make room for provincial legislation over “Indians” within municipalities by creating space between S91.24, 1867 which defines federal legislative competence over “Indians”, and the Indian Act which is simply a legislatively rewriteable federal statute. “The courts have the capacity to declare that legislation allegedly relating to Indians and/or lands reserved for the Indians is, in pith and substance, legislation pertaining to a class of subjects allocated to the provinces under Section 92 of the British North America Act. In such cases, the federal legislation will be declared ultra vires.”[8]
The ultimate objective for Hawthorn is clear, "At the present time, a concerted effort is being made to bring the Indians more fully into the provincial framework of law and services while simultaneously…the federal government hopes gradually to relinquish the special supports and services it has provided for Indians for the last century.[9] Hawthorn’s solution to the historical Indian problem is integration into the provincial framework of the Confederation system through rearrangements of the relative roles of federal and provincial statutes with regard to “Indians”. In this context of flexible federal-provincial areas of responsibility, Hawthorn considers treaties.
On the whole, the structure of policy and administration erected by the federal government on the authority of 91(24) represents a voluntarily assumed role. This would indeed constitute a virtually complete explanation for existing federal responsibilities if it were not for the treaties…a conflict between federal legislation and a treaty “right” will be resolved in favour of the former…we assume that the federal government wishes to respect treaty “rights”, and that such “rights”, therefore, constitute moral, if not necessarily legally enforceable, obligations.[10]
For Hawthorn, the Indian Act and treaties do not reflect a federal constitutional obligation, thus, provincial powers can be expanded, in concert with voluntarily shrinking federal statutory provisions, to fill the necessary space. But does Hawthorn’s assessment of the entirely voluntary federal obligations flowing from treaties match the Indigenous assessment of treaties? Hawthorn concedes: “These agreements hold a special place in the hearts and minds of the Indians because they represent, for the Indians, a recognition of their identity as a people whose roots and traditions stretch far back into Canadian pre-history.”[11] Hawthorn is aware that his assessment of treaties, imposing minimal, voluntary obligations on the federal Crown, does not align with those of Indigenous Peoples.
What is the consequence of Hawthorn’s legal and political assessment of the treaties within the framework of rights of citizens plus? “Indians covered by treaty possess, individually and collectively, certain rights to particular kinds of treatment from government…The main provisions of the treaties have been grouped into six main categories: (1) treaty presents, (2) annuities, (3) land, (4) hunting, fishing and trapping, (5) liquor, (6) socio-economic matters in the fields of education, agriculture, health and welfare.”[12]
How important is this assessment of treaties to Hawthorn’s solution of the Indian problem in the form of unique provincial municipalities with special internal treaty and Indian Act rights? Here it might be helpful to quote Hawthorn quoting one of the Treaty 8 commissioners. “…we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it.”[13]
Indigenous representatives demanded and were “solemnly assure[d]” that any laws flowing from treaties “were in the interest of the Indians” and of the animals and that their relationships with those animals would remain “after the treaty as they would be if they never entered into it”. The primary problem, as I see it, is that Hawthorn interprets treaties as a minimal set of contractual requirements which are not constitutionally, but only morally, binding upon the federal authority. Hawthorn explicitly says, “In essence, the situation is that with only minor exceptions federal policy cannot be derived from the treaties. Indian status, therefore, even for treaty Indians is largely derived from the Indian Act rather than from the treaties.” [14] Nevertheless Hawthorn notes the conflict of interpretation over treaties, “The discrepancy between the relative unimportance of the treaties as determinants of government policy and Indian perception of the treaties as basic items in self-identity constitutes an important complicating factor in Indian government relations, and also confuses those relations.” [15]
What Hawthorn does not seem to grasp is the Indigenous interpretation of the treaty relationship as constitutionally foundational. All he sees are specific contractual obligations such as presents, annuities, hunting and fishing rights, etc. He does not see the treaty relationship itself as a foundational constitutional one which defines the relationship between First Nations and the Crown, federal or provincial. As a result, he sees shifting the relationship between federal and provincial jurisdictions regarding “Indians” as largely a matter of shuffling federal and provincial statutory legislation. Thus, there are no constitutional obstacles to expanding the provincial role in the life of Indians. “The Indian responsibilities assumed by the federal government are significantly greater than what is required under treaties or the British North America Act. As a consequence there is considerable scope for an enlargement of provincial concern for Indians, and a widespread extension of normal provincial services to Indians without encountering either treaty or constitutional problems.”[16]
Hawthorn goes on to consider if that interpretation is wrong. “If our interpretation is wrong, then reserves become federal islands within provincial boundaries and the province qua province has no role to play with respect to reserve Indians. The interpretation with which we differ implies that federal responsibility for on-reserve Indians is total, and that the constitutional position of Indians on and off the reserve markedly differs. We feel, on the contrary, that Section 91(24) deals with two separable subject matters, Indians and lands reserved for the Indians.”[17]
Hawthorn’s interpretation, first of all, flows from his laser focus on S91.24, 1867 and by separating the treatment of “Indians” from the treatment of “lands reserved for Indians”. The Indian problem becomes simply an internal federal-provincial problem. Note that all Hawthorn imagines, and argues against, are "federal islands " within provincial boundaries. He can not seem to conceive of autonomous ‘Indigenous islands’ as a consideration. Therefore, as we develop a framework for considering a Status Indian establishing a corporation in an Indian Reserve setting, we need to consider the possibilities of Hawthorn’s solution to the Indian problem. We now have to consider S91.24 Indians, Indian Act Indians and provincial Indians as separable entities, legally and politically, and likely as competing Indians within the Confederation order. Nevertheless, Hawthorn has added to our discussion a version of the Status Indian as a provincial citizen and of an Indian Reserve as a provincial municipality with unique rights stemming from treaty relationships and federal moral obligations stemming from the Indian Act.
The White Paper, 1969
Three years after the Hawthorn Report was published, the Canadian government issued a White Paper to once again address the Indian problem. The contradiction, identified with Hawthorne, the equality of citizens versus the rights of “citizens plus”, will now be clearly and definitively resolved through the principle of individual equality and private property.
Here is a description of the White Paper of 1969 and its historical context by the TheCanadianEncyclopedia.ca.
The 1969 White Paper…attempted to abolish…the Indian Act and treaties, and assimilate all “Indian” peoples under the Canadian state…eliminate “Indian status”…incorporate First Nations under provincial government responsibilities; and impose land decisions, notions of private property and economic agendas on Aboriginal communities…therefore making First Nations “equal” to other Canadians…The backlash to the 1969 White Paper was monumental…In 1973, the Supreme Court decided…that Aboriginal title to land existed before European colonization of North America. The 1982 Constitution Act…recognized and affirmed Aboriginal and treaty rights within Canada.[18]
Once again, while the United Nations on an international stage is attempting to encourage values of non-discrimination and equality for individuals, the Canadian government recognizes it has an historical and legal problem and attempts to solve it by implementing a solution based upon values similar to those found in the ICCPR. But there is a monumental backlash based upon the historical rights of Aboriginal title and treaty rights held, I would argue, by people who are living inside a very different historical story than the one the White Paper sought to tell.
The 1969 White Paper would solve the Indian problem by simply and completely absorbing the Indigenous side of the treaty table into and under the exclusive and comprehensive sovereignty of the colonial side of that treaty table. I have argued elsewhere that S35.1, 1982, represents the third rebellion of the fur trade society. Like the rebellions of 1869 and 1885 against the 1867 claims of the Confederation state, the descendants of the fur trade society in 1982 asserted their historical and constitutional rights of self-determination as ancestral peoples established prior to the assertion of sovereignty by the Confederation state in 1867 or by its French and British predecessors. If the 1969 White Paper had been successful the relationship between a corporation, a Status Indian and an Indian Reserve would not exist because the latter two legal entities would simply have ceased to exist, being replaced by Canadian citizens holding fee simple land-holding rights like any other Canadian. There are no “citizens plus” in this solution.
ICJ Western Sahara, 1975
The 1975 Western Sahara advisory by the International Court of Justice was a seminal moment in the international legal arena regarding decolonization. Here is a description from the Max Planck Encyclopedia of Public International Law.
…The Court found that Western Sahara was at the time of colonization by Spain inhabited by peoples which were socially and politically organized in tribes and under chiefs competent to represent them and thus was not terra nullius…One of the achievements of the advisory opinion is the strengthening of the principle of self-determination of peoples…In the context of the protection of indigenous rights the decision was criticized for applying the European notion of acquisition of title—with the focus on the display of the acceptance of authority—as the exclusive criterion instead of taking account also of the potential legal force of the indigenous form of political organization—in the case at hand the political ties of allegiance of various tribes to the Sultan of Morocco (Indigenous Peoples).[19]
With the 1975 ICJ decision, the international legal recognition of self-determining peoples with customary political rights emerges in the context of de-colonizing colonial states. Put another way, we have a recognition, at the international legal level, of the Indigenous side of the treaty table sitting across from colonial states. In effect, we are back to the dilemma of Hawthorn where citizens plus emerge with unique rights alongside other state citizens with rights of equality and non-discrimination. How do Indigenous forms of organization relate to European notions of title, sovereignty and authority? If title, property and sovereignty all belong to the colonial side of the treaty table, what is the alternative to setting up a corporation by a Status Indian in an Indian Reserve setting where Indigenous people express their self-determination through forms of social and political organization which are substantively different and independent of such colonial legal entities?
Can the nation state de-colonize its relationship to self-determining peoples living within the territories over which colonial states claim sovereign jurisdiction? It’s one thing for Spain to de-colonize its relationship to external territories in the Western Sahara, what is the implication for such states attempting to de-colonize internal territories? In the case of Canada, the proper correlate to Spain would appear to be Britain. However, what are the implications for the Confederation state of 1867 based, as it is, on the so-called ‘British transfer’? What is the status of S91.24, 1867 in the face of S35.1, 1982, if the latter is seen as representing an act of de-colonization as outlined by the ICJ, 1975? Can S91.24, the colonial principle claiming legislative authority over Indians as colonial subjects within the Canadian constitution, survive the implications of the ICJ’s concept of self-determination? What are the de-colonized, self-determining alternatives to a corporation, a Status Indian and an Indian Reserve?
S35.1 Constitution Act 1982
S35.1, 1982 brings into focus the fundamental conflict of interpretation regarding Indigenous rights and the Canadian constitution. Here are some remarks about S35 by Erin Hansen of the Indigenous Foundations Project, UBC. “…Section 35 is the part of the Constitution Act that recognizes and affirms Aboriginal rights…but did not create them—Aboriginal rights have existed before Section 35…The Constitution Act recognizes Indian, Inuit and Métis as all Aboriginal with existing rights…Aboriginal rights in general are based on the continued occupation of lands by Aboriginal peoples since before European settlement.” [20]
By and large, S35 remains more mysterious than clarifying concerning the relationship between Indigenous Peoples and the Crown. The courts have been left to define Aboriginal rights, somewhat piecemeal, through interpretations that often seem motivated to minimize the disruption of the colonial order. For example, S35’s recognition of “treaty rights” presumably would include the right to make treaties. But as we noted, sovereign entities do not have treaties with subjects, nevertheless, the colonial court presumes to unilaterally define those rights, presumably based upon S91.24, 1867 rather than legally force the colonial government, the colonial court’s colonial sibling, back to the treaty table where, I would argue, an Indigenous veto would be operative.
Perhaps, then, the most important point to make is that S35 is not a treaty and not the product of a treaty. It is, like the Royal Proclamation, 1763, or S91.24, 1867, a unilateral pronouncement of the colonial government. Upon what authority are such unilateral pronouncements made that they become laws applicable to Indigenous Peoples? Under what legal interpretation does one side of the treaty table unilaterally legislate over the other side when the more fundamental relationship of nation-to-nation negotiation is “recognized and affirmed”? Presumably, the answer must be S92.24 1867. However, what treaty gave legitimacy to S91.24? What S35.1 minimally seems to recognize and affirm is that Aboriginal Peoples have rights which flow from legal realities outside the exclusive and closed history and authority of the colonial state unilaterally asserted in S91.24. So when we consider alternatives to establishing a corporation by a Status Indian in an Indian Reserve setting, we need to keep in mind what lies outside this closed colonial history and this exclusive colonial authority claimed by the colonial state?
Penner Report, 1983
Here is a brief description of the Penner Report, 1983, by CanadianHistory.ca. “The committee…stated that Native communities would prefer self-government rather than representation in Canadian legislative bodies…recommended that the Indian Act and the Department of Indian Affairs be phased out over an extended time period and replaced by local governments established by Native peoples themselves…Such recommendations, however, required the co-operation of the provincial legislatures, many of which were unwilling to opt for such a radical change.”[21]
With Penner, the fundamental contradiction, the Indian problem, at the heart of the colonial constitution, appears to be resolved, like Hawthorn, largely in the form of local self-government. The self-determination of Indigenous Peoples again becomes a form of municipal government within the colonial federation, however, they now form a distinct order of government, requiring constitutional amendments, as opposed to being integrated into provincial frameworks largely by statute. Penner appears to pick up where Hawthorn left off, now that the 1969 White Paper’s solution of political and legal extinguishment and assimilation is off the table. Penner is essentially offering Hawthorn’s solution through a third order of government.
Penner looks at the legal status of band governments, accountability to band members, the powers of the relevant federal minister, financial relations betweens bands and the federal government, the legislative powers of bands, etc. Like Hawthorn, Penner focuses on S92.24, 1867 regarding federal jurisdiction. Unlike Hawthorn, Penner must take into account S35.1, 1982. Penner is also conscious of the international context regarding equality, discrimination and the rights of Indigenous Peoples as he attempts to address the Indian problem.
At the outset Penner addresses a telling linguistic issue. “Throughout the report the Committee has used the term Indian First Nations to describe the entities that would be exercising self-government. Although the terms of reference refer to ‘Indian self-government’, the majority of witnesses referred to themselves as members of First Nations. In order to familiarize the general public with the term the Committee decided to use Indian First Nations in this report.”[22] This linguistic dilemma is telling because it belies a conflict over fundamental identities. It affords us an alternative outside the colonial order for dealing with corporations, Status Indians and Indian Reserves. It appears that witnesses rejected the term “Indian” in favour of self-identifying as “First Nations”. In other words, folks on the Indigenous side of the treaty chose to self-identify rather than be legally labelled by the colonizer. Penner’s solution to this Indian problem apparently is to simply mash the terms together as if that was a tenable solution to the dilemma. However, if “Indian” indicates a colonial subject and “First Nation” indicates the opposite, then what is an “Indian First Nation”? An irrational construct of the colonial mind?
Penner calls for a new relationship involving the recognition of the right of “Indian self-government” being explicitly stated and entrenched in the Constitution through a constitutional amendment whereby “Indian First Nation governments would form a distinct order of government in Canada, with their jurisdiction defined.”[23] Unlike Hawthorn, Penner does not see the Indian Act as a basis for addressing change. “The Committee does not support amending the Indian Act as a route to self-government. The antiquated policy basis and structure of the Indian Act make it completely unacceptable as a blueprint for the future.”[24]
Penner also appears to be moving away from notions of colonial unilateralism calling for “an independent secretariat to provide a neutral forum for conducting negotiations” between the federal government and Indian First Nations. However, it’s unclear how independent that body would be if it was to be a creature of the colonial government. Furthermore, Penner calls for federal legislative measures to recognize Indian governments, to enter into agreements, and under the authority of S91.24, 1867, “to occupy all areas of competence necessary to permit Indian First Nations to govern themselves effectively and to ensure that provincial laws would not apply on Indian lands except by agreement of the Indian First Nation government”.[25] With these provisions, it appears that Penner has opted for precisely what Hawthorn had argued against, “federal islands” of “Indian First Nations” as a distinct order of self-government within the confederated system but outside the reach of provincial laws. Rather than making room for provincial expansion, as in Hawthorn, Penner appears to remove provinces from “Indian lands”.
Regarding membership and identity, Penner recommends “the starting point be the band, with its membership newly defined. The federal govemment should leave it to each band to decide whether its people would constitute themselves as an Indian government or would join with others to form an Indian government of which the band would be a part.”[26] It remains unclear exactly how “bands” and “Indians” relate to “Indian First Nations”, especially given Penner’s rejection of the Indian Act where “bands” and “Indians” are defined.
Like Hawthorn, Penner seems to anticipate that there will be different categories of “Indians”:
The Committee recommends that the federal government consider using a general list as a means of providing special status to people who are Indian for purposes of Indian programs, but who are not included in the membership of an Indian First Nation…The Committee asserts that the continuing responsibilities of the federal government toward Indian people, whether or not they become members of Indian First Nations, must be recognized. The Committee urges federal, provincial and Indian First Nation governments, along with representatives of Indian people who are not members of First Nations, to work toward arrangements that respect the rights and aspirations of all Indian people.[27]
Like Hawthorn, Penner appears to contemplate three categories of “Indians”: federal Indians, provincial Indians and Indian First Nation Indians? However the new third order of government would have “an adequate land and resource base…to build the foundations for economic development”.[28] And that land base would need to be recognized as “Indian lands”, as he indicates, “…each Indian First Nation must have full rights to control its own lands…to decide upon methods of land-holding and land management on reserves. Such areas should be recognized as Indian lands…The Committee recommends that the federal government promote the constitutional change necessary to recognize in law full Indian First Nation rights to the lands, waters and resources of all areas now classified as reserves or in future considered as Indian lands.”[29]
Thus, reserves become “Indian lands” with their own “method of land-holding”. We might ask, how different might these federal islands of “Indian lands” be with regard to their “methods of land-holding”? How might the legal concepts of a corporation, a Status Indian and an Indian Reserve be transformed if Indian First Nations chose to change them?
RCAP, 1996
Here is the CanadianEncyclopedia.ca on the RCAP:
The Royal Commission on Aboriginal Peoples…[was] established in 1991 in the wake of the Oka Crisis…The main conclusion of the report was the need for a complete restructuring of the relationship between Aboriginal and non-Aboriginal peoples in Canada….This new relationship would acknowledge and respect Aboriginal cultures and values, the historical origins of Aboriginal nationhood and the inherent right to Aboriginal self-determination. Implementing many of the recommendations in the Royal Commission would have required constitutional change…the federal government…proposals emphasized non-constitutional approaches to selected issues raised by the Report…Very little response was given by provincial governments, which viewed the report as a federal initiative.[30]
With RCAP, arguably we final get to hear Indigenous voices speaking to the issues we are addressing, how to reconcile Indigenous governance with the colonial order through a complete restructuring of the relationship between Aboriginal and non-Aboriginal peoples in Canada.
The starting point is nations versus communities. In the colonial legal order of federated jurisdictions (municipal, provincial and federal), there are no nations, strictly speaking, except insofar as the federated nature of the colonial orders of 1867 was understood to be a result of a compact between founding peoples among the original colonies. There is accommodation to French-Canadians within the socio-cultural and political-legal order. However, how are Indigenous nations to be recognized and affirmed in relation to that colonial order? If Indigenous nations existed prior to and are more foundational than the colonial state itself, how does that affect the organization of a de-colonized state? And how are Indigenous Nations and the 3 forms of Indigenous governance RCAP outlines (nation, public and communities of interest) related to corporations, Status Indians and Indian Reserves?
RCAP makes a direct and emphatic link between the inherent right of Aboriginal peoples to self-government and treaties. “The treaty was the mechanism by which both the French and the British Crown in the early days of contact committed themselves to relationships of peaceful co-existence and non-interference with the Aboriginal nations then in sole occupation of the land. The treaties were entered into on a nation-to-nation basis…the French and British Crowns recognized the Aboriginal nations as self-governing entities with their own systems of law and governance and agreed to respect them as such.”[31]
It is clear from the RCAP perspective, that corporations of Status Indians on Indian Reserves are not, historically, what have been sitting on the First Nations’ side of the treaty table. Not surprising, at the heart of the history of treaties are conflicts of interpretation regarding written versus oral understandings. “…treaties have had some disadvantages, most arising out of issues of interpretation. Governments have insisted on the written document as embodying the entire agreement between the parties; Aboriginal parties have considered the oral arrangement, whether reflected in the written document or not, as reflecting the true consensus reached by the parties. The courts have favoured the Aboriginal position…”[32]
Insofar as treaties represent agreements, a consensus of both parties is fundamental. Thus, each side has a veto over the agreement. “For roughly 400 years, Aboriginal people in Canada have been ruled by foreign powers, first by the French and the British and later by Canadians. In the eyes of Aboriginal people, none of these governments had any legitimate authority over them…under international law…all peoples have the right of self-determination, and this right includes the right to decide how they will be governed.”[33] Note that RCAP incorporates the language of self-determination we found twenty years earlier in the ICCPR of 1975. Thus the Indigenous interpretation of the treaties raises questions about the legitimacy of the colonial claim embodied in S91.24, 1867, that the federal government has exclusive legislative authority over “Indians and lands reserved for Indians”.
“Aboriginal people in Canada say that they never consented to be governed by the French or the British or the government of Canada. Indeed, they were never consulted and had no say in the matter. Nor, they allege, did European powers assert authority over them on any valid grounds.”[34] Surely Indigenous Peoples have an absolute veto over the exercise of their own consent and thus they have an absolute veto over the interpretation of any treaty which presumes, as an essential condition, that Indigenous consent. And consent is essential because there was no conquest.
Nor could the newcomers claim title to the land by conquest, for there was no conquest. Early in the contact period the relationship was one of peaceful coexistence and non-interference. It was mainly after Confederation that Canada began to appropriate large tracts of land to house the ever-increasing influx of settlers and that the process of colonization and domination of the Aboriginal population began. No one asked them whether they wanted to be British subjects or Canadian citizens. They were simply herded into small reserves to make way for development and at Confederation were assigned to the exclusive jurisdiction of the Parliament of Canada. It apparently struck no one as strange, and possibly even improper, to hand over control of a whole people to a branch of the new federal government.[35]
So the legal status of Status Indians and Indian Reserves appears to be the result of a non-consensual act of a unilateral colonial authority. Therefore RCAP calls for a third order of government which is an expression of the inherent right of Aboriginal self-determination. “It is clear to the Commission that if Aboriginal peoples are to exercise their self-governing powers within the context of Canada’s federal system…government powers will have to be divided among three orders……the nation, rather than the local community, is the preferred unit of self-government. Each Aboriginal nation would govern its own people and require enough land to accommodate them.”[36]
Note the difference with Hawthorn and Penner. Self-government is not to be aborbed into the federal-provincial framework as provinical municipalities as in Hawthorn. And the basis of self-government is not with “Indian First Nations” on “federal islands” beginning with “bands” as in Penner. How do such ‘First Nation islands’ contrast with an “Indian Reserve”? At the heart of the response is the relationship between treaties, nations and land. “When our peoples entered into treaties, there were nations of peoples…Because only nations can enter into treaties…So, these treaties were entered into on a nation-to-nation basis. That treaty set out for us what our relationship will be with the British Crown and her successive governments.”[37]
Lands, nations and treaties form an integrated whole. As we noted at the outset, on one side of the treaty table, people are living in a world of money, maps and clocks, whereas, on the other side, there are tobacco, wampum and doodem doodles. To understand the latter, we need to understand the integrated whole of lands, nations and treaties. "…we saw that treaty making took place on a common ground of symbolism and ceremony, but contrasting world views led the treaty parties to divergent beliefs about the particulars of the treaties they made.[38] It is by reference to such a “common ground of symbolism and ceremony” that I understand tobacco, wampum and doodem doodles. By contrast, recall what Hawthorn claimed about the conditional nature of treaties as forming moral but not constitutional obligations on the legislative authority of the Crown.
In contrast to the unilateral federal-provincial statutory authority embraced by Hawthorn, we have a very different view on the First Nations side of the treaty table. "Treaty making can enable the deepest differences to be set aside in favour of a consensual and peaceful relationship. The parties to a treaty need not surrender their fundamental cultural precepts in order to make an agreement to coexist…We have an agreement as treaty Indians and we believe that these treaties cannot be broken or changed or negotiated because a sacred pipe was used when the treaties were signed and sealed.[39]
The very foundation of Canada is based upon treaties with First Nations using those “sacred pipes”, according to RCAP. This is certainly not what we heard from Hawthorn or Penner. “The Canada that takes a proud place among the family of nations was made possible by the treaties.”[40] At the heart of the First Nations interpretation of treaties is sharing land, peaceful co-existence and kinship. “The central feature of almost all the treaties is to provide for the orderly and peaceful sharing of a land and the establishment of relations of peace and even kinship. Once this has been acted upon, it cannot be reversed.”[41]
The relationship is not only not subject to unilateral determinations by one side of the treaty table, the relationship itself thus formed is irreversible. “The treaties between the treaty nations and the Crown were based on their mutual consent and did not require either nation to surrender its identity and culture.”[42] Again consensus implies a veto over any unilateral interpretation of the consent of participating parties.
And if that party knows or has reason to know that it does not represent the intention of the signer the document should not be enforced…if it can be shown that the written document does not embody a true consensus on its terms, it should not be treated as the exclusive record of the agreement…the treaty text was produced well after the meeting and the ‘signatures’ of the chiefs were “crosses on the document [that] were not put there by the Indians”…In other words, they are ‘agreements’ recorded by one party that do not necessarily reflect the real consent of the other.[43]
At the heart of the conflict of interpretation is a conflict over the understanding of the relationship to the land. “Many of the treaties with which we are concerned were made with one of the parties (the Crown) believing that the central feature of the treaty was the purchase or extinguishment of the other party’s Aboriginal title, while the very idea of selling or extinguishing their land rights was beyond the contemplation of the Aboriginal party, because of the nature of their relationship to the land.”[44]
So how does the colonial legal notion of the extinguishment of “Aboriginal title” relate to corporations, Status Indians and Indian Reserves? Are these latter three legal entities all based upon the reading of the treaties as extinguishing “Aboriginal title”? RCAP used the word “reconciliation” to reflect the spirit and intent of the treaty relationship itself. “By reconciliation we mean more than just giving effect to a treaty hunting right or securing the restoration of reserve land taken unfairly or illegally in the past. We mean embracing the spirit and intent of the treaty relationship itself…”[45]
Understanding the treaty relationship as a “sacred covenant” requires understanding sacred ceremonies and symbols. “Inaistisinni is a sacred covenant, a solemn agreement, that is truly the highest form of agreement, binding for the lifetime of the parties. So solemn is a treaty that it centres around one of our most sacred ceremonies and symbols, the Pipe.”[46] Yet the treaty relationship needs to be renewed regularly as an affirmation of the relationship to the land which the treaties affirmed as sacred. “The treaty was to be renewed regularly, to be kept fresh and living…They maintain with virtual unanimity that they did not give up either their relationship to the land (or as Europeans called it, their title) or their sovereignty as nations by entering into treaties with the Crown. Indeed, they regard the act of treaty making as an affirmation of those fundamental rights…They created sacred relations of kinship and trust.”[47]
Treaties affirm, they do not extinguish, the relationship to the land or the autonomy and sovereignty of First Nations and their sacred kinship relations. Again, how are such fundamental beliefs to be related to corporations, Status Indians and Indian Reserves? “We were told by many witnesses at our hearings that extinguishment is literally inconceivable in treaty nations cultures. The treaty nations maintain with virtual unanimity that they did not agree to extinguish their rights to their traditional lands and territories but agreed instead to share them in some equitable fashion with the newcomers.”[48] Are corporations, Status Indians and Indian Reserves legal expressions of an equitable sharing relationship with First Nations and with their traditional territories? Or can such legal entities survive the process of decolonization and reconciliation with Indigenous sovereignty, if in fact these legal entities presume the extinguishment of the relations affirmed in treaties?
“As a gift from the Creator, sovereignty can neither be given nor taken away, nor can its basic terms be negotiated. This view is shared by many Aboriginal people, whose political traditions are infused with a deep sense of spirituality and a sense of the interconnectedness of all things.[49]…Among many Aboriginal people, ‘the land’ is understood to encompass not only the earth, but also lakes, rivers, streams and seas; the air, sky, sun, moon, planets and stars; and the full range of living and non-living entities that inhabit nature. In this all-encompassing view, the land is the source and sustainer of life. In return, people must act as stewards and caretakers of the earth.”[50]
Can such beliefs be made compatible with the colonial legal notions of “Status Indians” living on “Indian Reserves”? And instead of corporations being the universal form of organization, what we find are clans. “In some traditional forms of government, councils of elders were the primary decision-making bodies. The oldest members of each clan… were the ones who formed what we called the Council of Elders.”[51]
Traditionally, the family or clan constituted the basic unit of governance for many Aboriginal peoples…The clan system is a social order. The clan system is a justice system. The clan system is a government. The clan system is an extended family unit…The clan system gives each member of the community clear knowledge of his or her place, in a number of ways. In a community with a functioning clan system, it tells individuals who their spiritual and political leaders are. It tells the person where to sit in the ceremonies. It often tells people about the others to whom they bear a special set of obligations — to help and guide them, but also that they are responsible and accountable to a particular individual as well as to all members of the clan.[52]
Is the clan in First Nations societies therefore the appropriate counterpart to the corporation in colonial society as a form of organization implying social and legal order, governance and leadership, obligations and responsibilities, organizing relations between individuals and the social order? “Within families, clans and nations, positions of leadership could be earned, learned or inherited.”[53] If it is appropriate to compare the corporation to clans, how might they be compared? Can corporations be made compatible with families, clans and nations? “Whatever their system of government, many Aboriginal people have spoken of the principle of consensus as a fundamental part of their traditions.”[54] Corporations are typically not organized according to consensus. If corporations and clans are fundamentally incompatible, how can they relate to each other in a form of co-existence?
…Aboriginal jurisdiction over traditional territories is inherent and exists independently of any recognition by the governments of Canada and the provinces. From this perspective, agreements regarding shared lands and resources should be based on the principle of co-jurisdiction. The co-jurisdiction model differs from certain co-management approaches currently proposed by provincial governments. The latter enable Aboriginal people to participate in the management of resources, but under legislative and policy regimes developed without the participation of Aboriginal people. In the eyes of many Aboriginal people, such arrangements are unsatisfactory because they do not acknowledge the autonomous authority of Aboriginal governments regarding their traditional lands and resources. By contrast, the type of regime favoured by many Aboriginal people would involve Aboriginal and non-Aboriginal governments exercising jurisdiction in a co-operative manner as equal parties.[55]
How does such a concept of co-jurisdiction relate to corporations, Status Indians and Indian Reserves? Note that RCAP sees “co-jurisdiction” as respecting Aboriginal participation in “legislative and policy regimes” that recognize the “autonomous authority” of Aboriginal governments and their relationship to traditional territories. How can such legal ideas be made compatible with the principles upon which corporations, Status Indians and Indian Reserves are built? “The Commission considers the right of self-determination to be vested in Aboriginal nations…we mean a sizeable body of Aboriginal people with a shared sense of national identity that constitutes the predominant population in a certain territory or group of territories. There are 60 to 80 historically based nations in Canada at present, comprising a thousand or so local Aboriginal communities.”[56]
How are nations related to clans? And in turn, how are nations and clans able to co-exist in relations of co-jurisdiction with corporations, Status Indians and Indian Reserves? We might summarize our present task at this point, using the image of the treaty table as our fundamental organizing principle. On one side of the table, we have the legal entities of corporations, Status Indians and Indian Reserves. On the other side, we have families, clans and nations living in sacred relationships with the land and “the full range of living and non-living entities” in a relationship of stewardship and protection. As noted at the outset, a world of money, maps, and clocks, of positive law, meets a world of tobacco, wampum and doodem doodles, of natural law, at the treaty table. Do we need once again to call upon the Sacred Pipe to form the basis of reconciliation, co-existence and co-jurisdiction? Or was that all extinguished and outlawed with the creation of Status Indians living on Indian Reserves?
UNDRIP, 2007 (Canada 2016)
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is an international instrument adopted by the United Nations on September 13, 2007…[UNDRIP] recognizes Indigenous peoples’ right to self-determination, which includes the right “to freely determine their political status and freely pursue their economic, social and cultural development.”…[UNDRIP recognizes the] right “to autonomy or self-government in matters relating to their internal and local affairs,”…“Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired,” and it directs states to give legal recognition to these territories. [57]
UNDRIP (2007) might be seen as providing international support to the positions outlined in RCAP (1996) regarding self-determination. Given that Canada was one of those who chose not to sign UNDRIP until 2016 out of concerns regarding sovereignty and compatibility with Canada’s existing legal and constitutional framework, it remains unclear if the Canadian state is open to the form of co-existence and co-jurisdiction RCAP called for.
TRC, 2008–2015
Here is an account of the TRC from the CanadianEncyclopedia.ca:
The Truth and Reconciliation Commission of Canada (TRC) was officially launched in 2008 as part of the Indian Residential Schools Settlement Agreement (IRSSA). Intended to be a process that would guide Canadians through the difficult discovery of the facts behind the residential school system, the TRC was also meant to lay the foundation for lasting reconciliation across Canada.[58]
Arguably residential schools belong to the same colonial framework as S91.24, 1867, as gradual civilization enactments, as enfranchisement, and to which the extinguishment of title and rights belong. The TRC above all perhaps provides evidence of how systematically the Canadian state since Confederation has violated the principles espoused by RCAP and UNDRIP. What transformations in the colonial orders of governance are necessary to achieve the reconciliation the TRC calls for? Does reconciliation require extinguishing the Status Indian and the Indian Reserve in favour of legal and traditional realities outlined by RCAP based upon families, clans and nations?
Indian Act 1985
We look at the Indian Act (1985)[59] primarily to consider relevant definitions used on the colonial side of the treaty table: band, band list, child, council, electors, Indian, Indian moneys, Indian Register, member of a band, registered, reserve, superintendent, surrendered lands, as well as, certain provisions indicative of the Indian Act’s characterization of “Indians and lands reserved for Indians”. Recall that Hawthorn recognizes the Indian Act. Penner does not but he accepts the centrality of S91.24 and of starting with “bands”, whereas RCAP is operating from a fundamentally different perspective of families, clans and nations.
According to the Indian Act “band means a body of Indians (a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, (b) for whose use and benefit in common, moneys are held by Her Majesty, or (c) declared by the Governor in Council to be a band for the purposes of this Act;” So a “band” is a legal entity defined in relation to lands “the legal title to which is vested in Her Majesty” and moneys similarly held for the “use and benefit in common” of the band. So this definition is clearly at odds with RCAP’s account of lands and nations where the legal title does not rest with the Crown. Band lists are maintained either by the band or the Department.
In this context the following curious definition of a “child” is presented “child includes a legally adopted child and a child adopted in accordance with Indian custom”. With this definition the band membership appears to be open to inclusion according to “Indian custom”. Is this a form of recognition of customary law? Similarly, band chief and councillors may be elected “according to the custom of the band”. An elector is anyone who is registered on a band list. Are such references to customary law a suggestion that Indian Act “bands” are open to being compatible, as in co-existing, with “clans” in RCAP? Of course, the Indian Act was not written at a treaty table with First Nations in a spirit and intent of co-jurisdiction.
Regarding the central legal entity of an “Indian” in the Indian Act, an “Indian means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian”. The Indian Register and band membership are defined per the Act itself as names on a band or Department list. The Act provides various criteria for being legally entitled to be registered, however, generally it comes down to “a person is entitled to be registered if one of their parents is entitled to be registered”. Which, of course, begs the question, what is the ultimate criteria for such entitlement. The 1985 Indian Act also made provision for bands assuming control over their membership lists.
Regarding lands, reserves, an surrendered lands, as noted above, a “reserve” means land “the legal title to which is vested in Her Majesty” held for the use and benefit of the “band”. Surrendered lands refers to reserve land released or surrendered by the band. Possession of lands in a reserve, for an “Indian”, according to the Act may be allotted through a certificate of possession by the council of the band but only “with the approval of the Minister”. It is illegal for a non-Indian to trespass on a reserve.
A “superintendent” of the band is anyone designated by the Minister to represent the Minister of the Act. The “Registrar” is the officer in the Department who is legally in charge of maintaining the Indian Register and Band Lists. And with regard to the Minister, “this Act shall be administered by the Minister, who shall be the superintendent general of Indian affairs.” Roads, bridges, etc., within the reserve are maintained by the band “in accordance with instructions issued…by the superintendent”. Generally, the Act empowers the Minister through the Governor in Council as the final regulator of property or by-laws by the band council on reserves. Nevertheless, any property and moneys are held in trust for the band.
With regard to our task of assessing the pros and cons of a Status Indian establishing a corporation on an Indian Reserve, the definitions and provisions of the Indian Act are clearly at odds with RCAP’s recommendations to recognize autonomous nations based upon self-determination and self-governance over traditional territories. The Indian Act recognizes Crown sovereignty over “Indians and lands reserved for Indians”. The Governor in Council and the Superintendent of Indian Affairs have final authority over all decision-making on reserves. This is essentially oil and water for RCAP.
With respect to establishing a corporation, the Indian Act through S87.1 contains provision for tax exemptions which might be relevant to our assessment: " the following property is exempt from taxation: (a) the interest of an Indian or a band in reserve lands or surrendered lands; and (b) the personal property of an Indian or a band situated on a reserve." However, S87 also indicates that Indians on reserve are subject to Acts of Parliament. Furthermore, S88 indicates that provincial laws of general application may apply to “Indians in the province” if they are not inconsistent with the Indian Act. Finally, we might note that in 1985, the Indian Act indicated that “The Minister may, in accordance with this Act, establish, operate and maintain schools for Indian children.” Clearly we are a long way from the autonomous, co-jurisdictional, third order of governance outlined by RCAP or the values and principles espoused by UNDRIP.
Illegal Gaming: Pamajewon 1985, 1991
In the Pamajewon SCC decision, 1991,[60] the appellants were charged, in 1985, with unlawfully conducting a bingo contrary to the Criminal Code. The appellants argued the law “did not apply to their activities since they were carried out on a reserve which they thought was not subject to the laws of Canada relating to gaming”. The court dismissed the appeal, using Van der Peet, because “In order to be an Aboriginal right, an activity must be an element of a tradition, custom or practice integral to the distinctive culture of the Aboriginal group claiming the right.” The activity in question needed to be “a defining feature of the culture in question prior to contact with Europeans.”
The appellants asserted that S.35(1), 1982, recognized and affirmed their rights to participate in and to regulate gambling activities on their respective reserve lands. The case turned in part on the “level of specificity” of the right and the activity. The court argued that “the characterization advanced by the appellants, namely, the broad right to manage the use of their reserve lands, would cast the Courts inquiry at a level of excessive generality.”
Finally with regard to the argument that the law was an unconstitutional violation of the appellants inherent right of self-government, the court argued, “Relying on the terms of the Royal Proclamation of 1763 and the Robinson Huron Treaty of 1850, and the granting of exclusive jurisdiction over ‘Indians, and Lands reserved for the Indians’ to the federal government under s.91(24) of the Constitution Act, 1867…that any right of self-government which was once held by the Shawanaga First Nation had been extinguished by the clear and plain intention of the Crown, with the result that the appellants could not rely on such a right as a defence to the charges against them.”
Recall that Penner (1983), RCAP (1996) and UNDRIP (2000), would all put in question legal claims regarding the extinguishment of Indigenous rights and title. However, in 1991 the SCC was referencing extinguishment as a decisive factor based upon the Royal Proclamation, 1963, the Robinson-Superior Treaty, 1850 and S91.24, 1867. RCAP in 1996 will take direct issue with such interpretations of historical and constitutional relationships. Furthermore, the court would not recognize the interpretation of treaty offered by RCAP as providing a level of self-government and self-determination that could be applied to the appellants situation regarding self-government, that is, evidence of traditional regulations based upon the generality-specificity distinction. The Pamajewon case, in 1991, seems to indicate that the Confederation state is not inclined to recognize the degree of autonomy and co-jurisdiction, rooted in treaty relations, that RCAP will call for in 1996. The SCC in Pamajewon, 1991, remained steeped in the unilateralist interpretation of the treaties grounded in the Royal Proclamation, the Robinson-Superior Treaty and S91.24, 1867. Perhaps this indicates that the reconciliation which RCAP calls for will have to happen at a treaty table and not before a colonial court bench.
Sechelt Indian Band Self-Government Act, 1986
In 1986, the Sechelt Indian Band Self-Government Act[61] was enacted "enabling the Sechelt Band to exercise self-government over its lands, and (b) the transfer by Her Majesty in right of Canada to the Sechelt Indian Band of fee simple title in all Sechelt reserve lands, recognizing that the Sechelt Indian Band would assume complete responsibility, in accordance with this Act, for the management, administration and control of all Sechelt lands".
Sechelt “self-government over its lands” are transferred as “fee simple title in all Sechelt reserve lands”. This transfer immediately begs the question what is the relationship between Aboriginal title and such fee simple title in “reserve lands”? Fee simple title is ultimately a reference to Crown land. So this would appear to represent a recreation of “reserve lands” as fee simple property owned by the new band as a self-governing municipality or district corporation created by the Act. So a new band with fee simple title replaces the old band with “reserve lands”. Is this the extinguishment of Aboriginal title? Here is the Act’s description of the legal transformation: “The title to all lands that were, immediately prior to the coming into force of this section, reserves, within the meaning of the Indian Act, of the Indian Act Sechelt band is hereby transferred in fee simple to the Band…”
To the extent that S35.1, 1982 and S91(24) might be in conflict, we note this provision regarding land: “For greater certainty, Sechelt lands are lands reserved for the Indians within the meaning of Class 24 of section 91 of the Constitution Act, 1867.” As we saw, the Indian Act, 1985 indicates reserve means land “the legal title to which is vested in Her Majesty”. However, note the following caveat: “For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the members of the Sechelt Indian Band, or any other aboriginal peoples of Canada, under section 35 of the Constitution Act, 1982.”
If, by S35.1, 1982, Aboriginal title is recognized and affirmed and the Sechelt Act does not abrogate or derogate from such S35 title, is the fee simple title simply superimposed upon it or somehow co-jurisdictionally related to it? Is the fee simple title simply a means to interact with the colonial property system without derogating from the underlying Aboriginal title? Or is the underlying Aboriginal title presumed to be extinguished? The purpose of the Act is spelled out as self-government: “…to enable the Sechelt Indian Band to exercise and maintain self-government on Sechelt lands and to obtain control over and the administration of the resources and services available to its members.” Is this fee simple title simply a way of affording some kind of co-jurisdictional administrative right to interact with the Confederation legal system from the other side of the treaty table or has the other side of the treaty table been largely extinguished?
The new Sechelt Band is defined as a legal person with legal capacities typically associated with non-Indian persons or legal entities (ex., corporations) within the Crown regime. The new band is defined as a legal entity having “subject to this Act, the capacity, rights, powers and privileges of a natural person” and may enter into contracts, acquire, hold and dispose of property, expend, invest or borrow moneys, sue or be sued, etc. In other words, it appears that the new band has become a legal entity akin to a corporation within the Crown fee simple property regime. Is this an example of Hawthorn’s “citizens plus”, whereby the band acquires all the legal capacities of a municipal corporation while retaining an additional set of rights flowing from S35.1?
What about the Indian Act? “Subject to section 36, the Indian Act applies, with such modifications as the circumstances require, in respect of the Band, its members, the Council and Sechelt lands except to the extent that the Indian Act is inconsistent with this Act, the constitution of the Band or a law of the Band.” Does this mean the Band, through “a law of the Band”, can rewrite the provisions of the Indian Act as it applies to the Band? The Indian Act remains in legal play with regard to determining which members of the Band are “Indians” within the meaning of that Act. Does this mean that along with the “Indians” created by the new Act, there remain Indian Act “Indians” as well? This sounds a bit like Penner where there would be Indian Act Indians and Indian First Nations Indians. How do such distinctions relate to families, clans and nations in RCAP?
Finally, what about federal or provincial laws of general application? First regarding federal laws, “All federal laws of general application in force in Canada are applicable to and in respect of the Band, its members and Sechelt lands, except to the extent that those laws are inconsistent with this Act.” And regarding provincial laws, “Laws of general application of British Columbia apply to or in respect of the members of the Band except to the extent that those laws are inconsistent with the terms of any treaty, this or any other Act of Parliament, the constitution of the Band or a law of the Band.” Thus, it would appear that Band law can override provincial laws of general application in respect of band members, but not federal laws of general application. However, various provincial laws regarding natural resources (oil, gas, and mineral resources) apply “in respect of the Band, its members, the Council and Sechelt lands.”
From the perspective of our task, the Sechelt Act appears to turn the band into a corporation, and transform Status Indians on an Indian Reserve into Penner-style federal citizens administering “federal islands”. Unfortunately, we do not have time or space here to explore the ramifications of how the Sechelt agreement interacts with S91.24, 1867, S35.1, 1982 and the recommendations flowing from RCAP 1996.
Corporations
Entrepreneur Guide
The Government of Canada hosts an Indigenous entrepreneur guide[62] where it notes certain considerations which may be relevant to our task. Regarding selecting a type of business the choices described include a sole proprietorship, a partnership or a corporation. In the case of a sole proprietorship or partnership, the entrepreneur and the business are considered the same legal entity. When the entrepreneur sets up a corporation, she can choose to incorporate federally or provincially. If she sell goods and services in Ontario, she may need a business number to collect and remit the Harmonized Sales Tax (HST). If she is a Status Indian, as per the Indian Act, who either lives on or off-reserve she may be eligible for tax exemption for some or all of her business expenses. Depending on the type of business, she may need licences and permits from the federal, provincial and municipal levels of government.
CRA on S87 Tax Exemptions
With respect to setting up a corporation on Indian Reserve by a Status Indian, we can consult the CRA guide on tax exemptions under S87 of Indian Act[63] for some sense of the relevant distinctions and implications. “As an Indian, you are subject to the same tax rules as other Canadian residents unless your income is eligible for the tax exemption under section 87 of the Indian Act. That exemption applies to the income of an Indian that is earned on a reserve or that is considered to be earned on a reserve, as well as to goods bought on, or delivered to, a reserve…Indian property not situated on a reserve will generally be subject to tax just like property held by other Canadians.” If a person is part of a self-government agreement, S87 may not apply.
“In 1992, the Supreme Court of Canada decided that all factors connecting income to a reserve must be examined in determining whether or not the income is situated on the reserve. To determine whether employment income is situated on a reserve, the courts follow the approach described in the decision called Glenn Williams v. Canada.” The crucial factor generally is whether there is any the factor connecting any form of income to a “reserve”. That income can take the form of employment income, employment-related income or business income. If the activity is conducted both on and off a reserve, the tax may be prorated. There are special considerations, for fishing and farming, for example, however some factor connecting the activity to a reserve is the crucial element.
Generally sole proprietorships or partnerships are eligible for tax exemption based upon the location of the income-earning activities. The same holds for interest, investment income, dividend income, rental or royalty income, capital gains or income from a trust. All are evaluated based upon the location of the source of the income, on or off reserve. The exception is a corporation. “Section 87 of the Indian Act does not apply to corporations or trusts, even if they are owned or controlled by an Indian. A corporation or trust is treated as a separate taxpayer. As such, neither would be considered an Indian for purposes of the exemption.” The CRA operates with a definition of an “Indian” based upon the Indian Act.
For purposes of the tax exemption under section 87 of the Indian Act, the Canada Revenue Agency uses the term “Indian” because it has a legal meaning in the Indian Act. This term is defined in the Indian Act as a person who is registered as an Indian or is entitled to be registered as an Indian. Determining whether a person is entitled to be registered as an Indian is a question of fact. To grant tax benefits to you as an Indian, we need confirmation of your entitlement from Indigenous and Northern Affairs Canada.
Tax Advice
For the purpose of our present task, for an “Indian” living in an “Indian Reserve” setting, he or she is best advised to avoid incorporating. In The Current State of Taxation of Aboriginals in Canada[64], Humphrey Tam discusses the pros and cons of different business structures from the point of view of tax exemptions.
If a band is considered a "municipality', a further exemption under paragraph 149(1)(d.5) is afforded to corporations controlled or wholly owned by it…CCRA however has taken the position that an Indian band council is not a “municipality” for purposes of the Tax Act…[nevertheless] relying on the exemption…as a public body performing a function of government is the most viable choice. Bands can then take on their economic development through some unincorporated fashion be it a proprietorship, trust or partnership.
Thus, under the current constitutional and statutory arrangements, a Status Indian in an Indian Reserve setting would appear to be disadvantaged through incorporating a business activity. It remains to be seen, however, if an RCAP arrangement of co-jurisdiction could be outlined which would offer a stronger counterpoint to such considerations or to the “federal island” found in the Sechelt self-government agreement.
Metis Settlement Act (Alberta) 2000 {#metissettlementactalberta2000}
The stated intention of the Métis Settlement Act (Alberta), 2000[65] is that “the Metis should continue to have a land base to provide for the preservation and enhancement of Metis culture and identity and to enable the Metis to attain self-governance under the laws of Alberta”. The key here, for our purposes, is “self-government under the laws of Alberta”. Essentially a Métis Settlement appears to be a provincial corporation whose regulatory powers are bound by the limits set by the provincial ministry. Under the heading “Corporate Powers” a Métis Settlement is a normal legal person in the Crown regime: “Subject to this Act, a settlement has the rights, powers and privileges of a natural person”.
With regard to the regulation-making powers of the governing council of a settlement: “A regulation to be made in accordance with this section may be made, amended or repealed only if the General Council requests the Minister to make the regulation.” So the regulations are ultimately legally made by the provincial Minister responsible for the Métis Settlement Act. It would appear then that a Métis settlement represents a ‘provincial island’ within the province of Alberta.
The FAQ website[66] for the Métis Settlement agreement discusses the creation of a new form of land title called “Métis title” which is explained on the Alberta government’s website for the Metis Settlement Land Registry. “Métis Title is a statutory ownership interest in Settlement land. The Métis title is subject to the fee simple interest. Each parcel of land within a settlement area has a Métis Title. The Métis title interest is either in the name of the Settlement or, if it has been transferred, in the name of a Settlement member.” They also offer a description of a fee simple land interest. “Fee simple means full ownership subject to certain limited rights of the Crown.” And it is the Metis Settlements General Council which holds the “fee simple” interest in all Metis Settlement lands. Members of a settlement can live on a parcel of Métis title land, use and make improvements to it, transfer the title to another member or the Settlement itself, give someone else the right to use the land, or decide who inherits that Métis title.
In effect, we seem to have a private (members only) provincial municipal corporation. Without having looked at the Settlement Act in detail, we might nevertheless ask how does this private, provincially-delegated municipal corporation relate to the federal responsibilities of the Indian Act or S91.24, 1867, or S35.1, 1982 ? We seem to have a ‘provincial island’ somewhere between Hawthorn and Penner. As a provincial island, of course, we would appear to be still a long way from the kind of co-jurisdiction RCAP was calling for.
Indian From the Inside
As a closing consideration, I would like to consult some key ideas in the book Indian From the Inside[67] to provide some further context for our discussion of RCAP. McPherson and Rabb consider, among other concepts, the role of four key ideas: polycentrism, other-than-human persons, the vision quest in the context of a sweat lodge and transformative philosophy.
The authors suggest that the polycentric perspective turns out to be a traditional Native American value closely related to non-interference and respect for difference. This polycentrism is illustrated in the traditional “sharing circle” where participants offer different perspectives on a topic “which is metaphorically located in the centre of the circle”. Individual views are blended with the objective of expanding understanding towards a consensus where, ultimately at the community level, knowledge is shared for the benefit of all.
It is in the context of discussing the polycentric respect for difference that McPherson and Rabb address the “incommensurability of worldviews”. Here they acknowledge the pre-contact practice of “exogamy”, marrying outside the group which ameliorated inter-group understanding. Do such cultural practices also provide us with values and techniques for understanding the treaty table relationship from an Indigenous perspective? Exogamy may also apply to extra-human relationships. “Animals, plants, and minerals are not…rightless resources, as is the case in Western economic assumptions…. Human beings must assume appropriate attitudes toward the non-human members of their polymorphous community…. Above all non-human beings must be respected.”[68]
Such a worldview seems to reflect values similar to those we found in RCAP about the world in which Indigenous Peoples are but a part and not the dominant part. It also brings us to the role of the vision quest and the sweat lodge which they link to their account of a transformative philosophy. The sweat lodge is presented as a cultural expression of the vision quest through the experience of architect Douglas Cardinal who describes the vision quest as progressively closing the gap between self-consciousness and the rest of the universe. It is through the vision quest of the sweat lodge cultural practice that the participant is exposed to a transformational experience which occurs within the natural world, which the Indigenous community inhabits along with other beings who are as important and deserving of respect as themselves.
…it is through the exchange of gifts that one maintains one’s membership in Ojibwa society. Are not these other-than-human persons with whom they exchange gifts members of that society and entitled to the same respect and help accorded to any other member of the community? There is, we suggest, a moral obligation to protect the habitat of the moose, the beaver, the muskrat, and the lynx; the habitat of geese, ducks, grouse and hare, not just because members of the Band wish to continue hunting and trapping, but because these other-than-human persons are also extended members of Ojibwa society.[69]
The sweat lodge presents the site of an exchange of gifts within the polymorphous community which connects the individual and Ojibwa society with the world of other-than-human persons which populate the natural world. Recall the treaty commissioner who noted that the interpretation, the solemn demand and assurance, required by the First Nations representatives at the treaty table, was that their relationship to the other animals would remain unviolated by the laws the treaty created, as if the treaty had not been undertaken at all. At the heart of this transformative vision of mutual responsibility with the community of non-human persons is also a vision of autonomy: “to keep their traditions healthy and alive, Native people must assess their own traditions from their own perspectives.”[70]
If respect, autonomy and mutual responsibility is to occur then legal entities, such as corporations, Status Indians and Indian Reserves, will likely need to be substantially transformed to the point necessary for Indigenous families, clans and nations to control their own relationships and not be subjected to legal frameworks which violate their fundamental rights of self-determination. If reconciliation is to occur within a new framework of relations between Aboriginal and non-Aboriginal peoples then colonial participants may need to be guided by the principle noted in R v Nowegejick, 1983,[71] that “Treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.” Does this principle offer a possible path to reconciliation and de-colonization, where the colonial state indicates a willingness to follow the path which the “Indians” lay out for it. After all historically the original relationship was based on Indigenous Peoples acting as guides for the newcomers.
As noted at the outset, on the one side of the treaty table we find money, maps and clocks as fundamental instruments of colonialism and the colonial society. The Land is reduced to the concept of it found in the land, labour and capital of the economistic society. On the other side of the treaty table we have a world of tobacco, wampum and doodem doodles. Here, The Land appears as a more holistic reality which embodies the creative relationships between all the beings of creation and where respect, autonomy and mutual responsibility (and doodem doodles found on treaty documents) acquire their fullness of meaning. The sweat lodge is the cultural experience where the holistic creative reality of The Land, the extended society of human and non-human persons, acquires, for the participants, an heightened awareness.
Perhaps we need to get back to those sharing circles round the Anishnaabe ishkode inviting the Anishnaabe manidoog to guide us toward reconciliation, to keep fresh and alive the vision of peaceful co-existence the ancestors saw burning in the bowls of their Sacred Pipes.
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