3. Hawthorne report 1966
The efforts of the Indian Affairs Branch should be concentrated on a series of
specific middle range objectives, such as increasing their real income, and adding to
their life expectancy.
3
4. Hawthorne Report 1966 Indians should be regarded as “Citizens Plus”.
Ins addition to the normal rights and duties of citizenship, Indians possess certain
additional rights as charter members of the Canadian community.
4
5. Since the revisions of 1951, the Indian Act has continued to undergo changes, both
in terms of its underlying philosophy and its specific provisions.
5
6. From the 1950’s onward, Aboriginal policy in Canada entered
into a complex period.
6
7. On the one hand, there still remained the traditional philosophy of
assimilation, which encouraged Aboriginals to leave behind their
Indian status and integrate into the broader Canadian society.
In contrast to this, however, were new approaches to Aboriginal
policy, based on the desire of Aboriginal groups to assume control
over their own communities,
as well as new ideas derived from the international indigenous
movements of the time.
7
8. Central to this new approach was the view of Aboriginal groups
as distinct nations, which were entitled to political, social and
economic self determination.
8
9. This period of complexity is evident in the range of actual and
proposed amendments that occurred to the Indian Act between
1952-1985.
For example, in 1960, Aboriginals received the right to vote
federally without having to give up Indian status.
In 1961 the compulsory enfranchisement provisions were
removed from the Indian Act, meaning that Aboriginals could no
longer be forced to give up their Indian Status.
9
10. In 1969, however, the federal government introduced the 1969 White
Paper on Aboriginal affairs.
This strategy paper proposed the abolition of the Indian Act altogether,
the rejection of land claims, and the assimilation of Aboriginals into
Canadian society (with the status of an ethnic minority, as opposed to
being a distinct national-cultural group).
Strong Aboriginal and non-Aboriginal criticism of the 1969 White Paper
eventually led the federal government to back away from this position.
10
11. The White Paper on Indian Policy was in reality a comprehensive
land claim policy drafted by the Canadian Federal Government in
1969.
It was a complete rejection of the former approaches taken by the
federal Government in regard to Indian policy and it proposed to
abolish the Indian Act, and dismantle the Indian Affairs branch of
Government within a five year period
11
12. The policy was aimed at assimilating Aboriginal affairs into the
mainstream.
12
13. It rejected land claims as being incapable of remedy, and treaties
as regressive & argued that provisions of services for Indians
should be provided through regular provincial agencies rather
than specialised bodies.
13
15. 1973
In the Supreme Court of Canada decision, Calder v. Attorney
General of British Columbia, 1973, native title was reaffirmed at
common law.
And, in response, the Federal Government issued a Statement on
Aboriginal Claims which declared its willingness to negotiate on
traditional interests in land, in August that same year, 1973.
15
16. The release of the White Paper on federal Indian policy in 1969
generated a storm of protest from Aboriginal people, who strongly
denounced its main terms and assumptions
16
17. It left in its wake a legacy of bitterness at the betrayal of the
consultation process and suspicion that its proposals would
gradually be implemented.
17
18. oHowever, it also served to strengthen the resolve of Aboriginal
organizations to work together for a changed relationship.
It marked the beginning of a new phase in Aboriginal/non-
Aboriginal relations.
18
19. 1968 Consultations
As Minister of indian Affairs, Jean Chretien conducted
consultations with First Nation Leaders on changes to the Indian
Act.
Across the country a consistent message was delivered by First
Nations Leadership to the Department of indian Affairs, which
was to recognize Aboriginal and Treaty Rights.
19
21. The White paper came shortly after Pierre Trudeau’s first
election victory as leader of the federal Liberal party. It came
after his successful 1968 campaigning.
He campaigned for a “Just society.”
22. The release of the White Paper on federal Indian policy in
1969 generated a storm of protest from Aboriginal people who
strongly denounced its terms.
23. Harold Cardinal, then president of the Indian Association of
Alberta, responded with what became known as the ‘red
paper’; in which he described how Indian peoples, as peoples
with distinct cultures, wished to contribute to Canadian
society while at the same time exercising political and
economic power at the community level. The Red Paper
movement gave birth to the first cross-canada political
organization of indian people, the National Indian
Brotherhood
It left in its wake a legacy of bitterness at the betrayal of the
consultation process & suspicion that its proposal would
gradually be implemented.
24. oThe federal response to the consultations was to introduce a
“White Paper on Indian Policy”.
Key Elements in the 1969 White Paper Policy
Eliminate the legislative and constitutional recognition of Indian
status
Abolish Indian Reserves & impose taxation
Dismantle Treaties
Off-load federal Indian programs & services onto provinces,
municipalities and First Nation communities
Entrench economic underdevelopment
24
25. It is clear that most indian claims are not simple issues of
contractual dispute to be resolved through conventional
methods of adjudication. They are the most visible part of the
much, much more complex question of the relationship
between the original inhabitants of this land, and the powerful
unlawful cultures/forces that moved in on them.
25
26. That the past relationship has been unsatisfactory for both
Aboriginal people and mainstream Canada cannot be in
dispute. There are too many well-documented cases where
Canada failed to live up to obligations that were presumably
entered into in good faith, and which Indians accepted with
equal or greater faith.
26
27. Even though the White Paper issues dove tailed into the the
constitutional discussions (among federal and provincial
governments) these were 2 very separate paths.
Regarding constitutional discussions - the main issues were the
division of powers between fed & provincial, regional issues,
reforms, official language issues, the Charter of Rights and
Freedoms and an amending formula - to make any further
changes to the constitution.
27
28. In Canada, Aboriginal people were becoming more aware of
their legal rights during this period. The landmark Supreme
Court case, Calder in 1973, led the federal government to
establish its first land claims policy, directed to settling
comprehensive claims ‘of Aboriginal groups that retained the
right to traditional use and occupancy of their lands.’
The policy was very tricky as the federal government insisted
on extinguishment of their resource rights rights in order to
have the settlement. It was also tricky because the federal
government wanted to separate negotiations about the land
from negotiations about self-government. The topic of self-
government emerged high on the list of priorities for
Aboriginal people by the late 1970s. However - only 2 claims
were negotiated 1975/James Bay & 1978 Northeastern Quebec.
28
29. Support for Aboriginal people grew. Organizations such as the
Canadian Association for the Support of Native People &
Project North with Christian churches pressed government on
Aboriginal rights to land and self determination.
29
30. It was at this point that Aboriginal peoples and the
Constitution began to be linked. They had tried many avenues
to effect change - with no results.
They made a clear decision now to aim at Constitutional
Reform!
30
31. Their first opportunity came in 1978. In the aftermath of the
election of the first Parti Quebecois government, in Quebec,
when the federal government introduced its proposal for
constitutional reform - entitled A Time For Action & the
companion legislation Bill C-30 there was for the first time a
draft of the charter of rights and freedoms. It included a
provisions to shield certain Aboriginal rights from the general
application of the individual rights clauses in the Charter.
The federal government ha had discussion with FN leaders
about this “to discuss issues to be placed on the first minister’s
constitutional agenda, including a commitment to invite
national Aboriginal leaders to attend the negotiating seesions
on topics that directly affected them.”
31
32. 1. Victory of the feralists in the Quebec referndum in 1980
(re:sovereignty)
2. Failure of a First Minister’s Conference on the Constitution
later in 1980.
3. Government decided, okay, I’ll act unilaterally to patriate
and amend the constitution!(Trudeau)
4. 1981 revised federal proposal after discussions with
Aboriginal leaders.
5. 8 provincial governments said no to the proposals, as did
Aboriginal leaders.Chiefs even travelled to England to have
Treaty rights reaffirmed. They filed a lawsuit in England “Lord
Denning of the English Court of Appeal stated that Canada
had an obligation to fulfil the treaties made in the name of the
crown.
6. Provinces who opposed the feds policy also launched
lawsuits.
7. In 1981 the Supreme Court of canada made a ruling on the
constitutional case, and this is what forced the First Minister’s
32
33. Thus the first conference was in November of 1981. That
conference produced a draft constitution supported by 9
provinces and the feds. Quebec withheld its consent. Tis ist
accord 9no name) had a Glaring omission - the Aboriginal
rights provision discussed earlier with Joe Clark had been
removed! (?????Time Frame google)
Just like the White Paper this sent shock ways through teh
aboriginal leaders who galvanized coast to coast. They wanted
the Aboriginal rights reinserted.
33
34. This time they had an ally. Cnadian women who were
concerned that the sexual equality rights of the charter might
be impaired too by this legislative override provision - better
known as the ‘notwithstanding clause’.
So, the 2 groups pledged to work together and support one
another.
They won.
The notwithstanding clause would not apply to section 28; the
sexual equality provision of the charter, and the aboriginal and
treaty rights provisions were reinstated (how did they read????)
However, this tie they had the word ‘Existing’ placed in front
of them. (This was because of the lack of knowledge of
Aboriginal matters among the federal and provincial
governments 7 the legal uncertainty in this area of Aboriginal
rights.)
34
35. The Constitution oAct, 1982 was proclaimed on 17 April 1982.
Section 25 stated
Section 35 Stated
Section 37 Stated
35
36. Section 35 provided for:
1. A single constitutional conference, which was held in 1980 to identify and define
those ‘Existing’ Aboriginal rights.
2. The participation of Aboriginal leaders and territorial leaders at this conference.
This conference was televised live, and the hopes and dreams of Aboriginal people
were brought to viewers across Canada. Aboriginal culture was seen (“given a place
of respect”) - opening prayers, drumming in, the passing of the great pipe of peace.
For the first time since confederation Aboriginals sat at the table as ‘equals’ with the
other Ministers. But they were only tolerated participants.
The conference was noteworthy. It resulted in the first and only) amendment to the
constitution. (go to binder)
Also, there was a Proclamation made that a formal First Minister’s Conference
would be held, with the participation of Aboriginal peoples, before their would be
any constitutional amendments made that would directly affect or impact
Aboriginal people.
Also Section 37 was added.
36
40. oBeginning in the early 1970’s however, in the midst of the
Trudeau era, a drastic measure was sought by the government of
Canada. Trudeau and his colleagues wanted to see the
constitution patriated in Canada and ties cut with Britain.
Initiatives were taken which would allow this to happen.
However, these initiatives would involve the Aboriginal people of
Canada.
40
41. 1970’s Trudeau & Chretien
In response to the White Paper on Indian Policy First Nations
organized opposition by forming associations at regional and
national levels. The National Indian Brotherhood was formed.
First Nations organizations issued their own position Papers in
response to the White paper including the Red Paper prepared by
the Indians of Alberta Association and these were presented to the
federal government.
41
43. oIn 1973, the Supreme Court of Canada in the landmark Calder
decision - regarding the Nisga’a in British Columbia - issued a
split decision on whether Aboriginal Title existed in Canada or
not, this caused legal uncertainty for the Crown governments in
Canada.
The federal response of then Prime Minister Trudeau, and his
indian Affairs Minister Jean Chretien, was to announce modern
land claims policies for negotiations with First Nations.
43
44. o1980
Then prime Minister, Pierre Trudeau, met in Ottawa with Chiefs
from across Canada at a National Indian Brotherhood meeting to
announce his plans to amend the Constitution.
He called on their support.
Trudeau implored the Chiefs to ‘treat Canada better than Canada
has treated you”.
44
46. Prime Minister Trudeau appointed Jean Chretien as federal
Justice Minister and put him in charge of the Constitutional
negotiation process. Ron Irwin, who would later become
Chretiens Minister of Indian Affairs in 1993, is named by Trudeau
as Chretiens Parliamentary Secretary for Justice.
46
47. As a consequence of Trudeau’s actions, constitutional issues
become the priority for the NIB because of concerns about
impacts on Treaty and Aboriginal Rights of Changing Canada’s
legal status with England.
47
49. 1980-81 Trudeau and Chretien
After Trudeau announced his constitutional plans, Indian Inuit &
Metis representatives began meeting federal & provincial
representatives to discuss wording for recognition of Aboriginal
and Treaty rights in the new constitution.
49
50. In 1981, a clause recognizing Aboriginal rights was first inserted
into the draft of the Canadian Constitution and then removed at
the insistence of western Premiers form Alberta and
Saskatchewan.
Aboriginal peoples responded to the removal of the Aboriginal
constitutional clause by mobilizing & literally camping in Ottawa
to protest and lobby federal politicians.
A train dubbed the Constitutional Express left vancouver, BC on
route to Ottawa, picked up First nations people along the route
adding to the demonstrators in Ottawa.
50
51. 1981 Patriation Process
In the fall, some Aboriginal representatives reached an agreement
with the Premiers the and Prime Minister Trudeau concerning
wording for an Aboriginal Clause.
This was to be Section 35.
51
52. Another clause section 37 was also included, which provided for
a First Ministers Conference to be held within 1 year of the
Canada Bill (as it was called in England while coming into force).
53. Several First Nation organizations joined forces to go to England
to launch a court action and lobby British MP’s to vote against
the Canada Bill until First Nations legal Constitutional concerns
were addressed by the Crown governments, including the Crown
in Right of Great Britain (Canadian Crown Representatives).
53
55. Constitution Act, 1982
Canada’s new constitution was proclaimed into law on April 17,
1982, with a specific clause for protecting the Rights of
Aboriginal peoples...
Section 35 provided:
(1) The existing aboriginal and treaty rights of the aboriginal
peoples of canada are hereby recognized and affirmed. (2) In this
Act, aboriginal peoples of Canada includes the Indian, Inuit and
Metis peoples of Canada.
56. The Constitution Act,1982, Section 37 also provided for a First
Ministers’ Conference on Aboriginal Matters to be held within
one year of the new constitution becoming law.
56
57. In 1982, a Special Parliamentary Committee on Indian Self-
Government was established to review legal and institutional
issues related to status, development and responsibilities of band
governments on Reserves.
57
59. 1983 Self-Government Report/Penner Report
In 1983, the all-party Special Parliamentary Committee on Indian
Self-Government, issued the Penner Report.
The committee recommended that the federal government
recognize First Nations as a distinct order of government within
the Canadian federation and pursue processes leading to self-
government.
The Penner report proposed constitutional entrenchment of self-
government and in the short-term, the introduction of legislation
to facilitate it.
59
60. 1983 First Ministers’ Conference, Trudeau & Chretien
The 1983 First Ministers’ Conference focused on sexual equality
between Aboriginal men and women, self-government, as well as the
need for further constitutional conferences.
A constitutional amendment was agreed to in accord with the new
constitutional amending formula.
The 1983 constitutional amendment provided for amendments to section
35 - regarding recognition of rights from land claims agreements set out
an agenda and a schedule for 3 more First Ministers Conferences on
Aboriginal Matters, while agreeing to include Aboriginal
representatives.
60
61. 1983 amendments to section 35 ... include the following clauses √
(3) For greater certainty, in subsection (1) “treaty rights” includes
rights that now exist by way of land claims agreements or may be so
acquired. (4) Notwithstanding any other provision of this Act, the
aboriginal and treaty rights referred to in subsection (1) are
guaranteed equally to male and female persons.
35.1 The government of Canada and the Provincial governments are
committed to the principle that, before any amendment is made to
Class 24 of section 91 of the constitution act, 1867, to section 25 of
this act, or to this Part, (a) a constitutional conference that includes
in its agenda an item relating to the proposed amendment, composed
of the Prime Minister of Canada and the first ministers of the
provinces, will be convened by the prime Minister of canada, and (b)
The Prime Minister of Canada will invite representatives of the
Aboriginal peoples of Canada to participate in the discussions on
that item.
61
63. 1984 First Ministers Conference Trudeau & Chretien
Prior to the 1984 First Ministers’ Conference Trudeau took his
famous “walk in the snow” and announced his retirement from
politics. This changed the federal-provincial dynamics of the
FMC. The Premiers knew there was going to be a Liberal
Leadership Convention to replace Trudeau as leader of the
Liberal Party of Canada.
64. oThe main topic of discussion turned to whether the right of self-
government for Aboriginal peoples is contingent - meaning
delegated versus inherent.
A federal-provincial proposed Constitutional Accord on the
Rights of Aboriginal Peoples was rejected by the Four National
Aboriginal Organizations.
64
68. oThe historical precedence for the Canadian Constitution 1982
came in the year 1867 with the introduction of the British North
America Act.
This Act established Canada as a separate, but not totally
sovereign nation.
It established the institution of government, the House of
Commons, the Senate, the provincial legislatures, and the offices
of Governor General and Lieutenant -Governor.
It set the basis of the judicial system and establihed the rules
governing election or appointment to the various positions or
institutions.
It divided the responsibilities and law making powers between the
federal and provincial levels of government.
68
69. oSection 91(24) of the BNA ACT made the Federal Government
responsible for “Indians and lands reserved for Indians” By
virtue of this section the Federal Government legislated and
consolidated all laws affecting Indians into the Indian Act of
1876. This section also recognized that the primary responsibility
for Indians (unlike ordinary citizens) rested with the federal level
of government.
69
70. oAlthought the British North America Act sat in place of the
Canadian Constitution, other factors such as statutes have
influence it, as well as been influenced by it.
70
71. oThe BNA Act, it must be remembered, has been the means
whereby, for decades, the British Parliament has ruled the lands
of Canada.
71
72. The BNA Act, then is a legal document which has been the most
representative piece of colonial policy ever in effect in Canada.
72
73. Initiatives:
in 1972 a Joint Committee of the Senate and the House of
Commons released a report on the Constitution. This committee
made several recommendations and observations, several of
which pertained directly to the native people.
73
74. 1. It noted that no constitutional changes concerning Native
peoples should be made until such time as their own
organizations would complete research into the question of Treaty
and Aboriginal Rights in Canada.
74
75. o2. It noted that the new constitution should include a preamble
which affirmed the special place of native peoples, including the
Metis, in Canadian life.
75
76. o3. It directed that provincial governments should, where the
population was sufficient, consider recognizing Indian languages
as regional languages.
76
77. o4. It suggested that no jurisdictional changes should be made in
administrative arrangements concerning indians and Inuit
without consultation.
In other words, then, Aboriginal peoples in Canada were to be
given the right to help shape the directives of the new Canadian
Constitution.
It seemed that they would be allowed representation.
77
78. (1980??)
ALTHOUGH THESE WERE VERY NOBLE SENTIMENTS,
THIS CONSTITUTIONAL INITIATIVE, LIKE MOST IN THE
PAST, ENDED IN FAILURE.
IN OCTOBER 1980, A CONFERENCE WAS HELD
BETWEEN THE PROVINCIAL AND FEDERAL LEVELS OF
GOVERNMENT.
NO ABORIGINAL REPRESENTATION WAS ALLOWED.
DURING THIS MEETING THE FEDERAL AND
PROVINCIAL GOVERNMENTS COULD NOT REACH AN
AGREEMENT ON THE PATRIATION OF THE
CONSTITUTION.
TRUDEAU PROCLAIMED THAT THE FEDERAL
79. OIN SEPTEMBER 1981, THE SUPREME COURT OF
CANDA RULED THAT THE CONSTITUTION CONTAINED
BOTH WRITTEN AND UNWRITTEN, TRADITIONAL AND
CONVENTIONAL PROHIBITIONS AGAINST UNILATERAL
FEDERAL ACTION ON MATTERS OF VITAL PROVINCIAL
IMPORTANCE. THERE HAD TO BE FEDERAL
PROVINCIAL CONSENSUS ON THE CONSTITUTIONAL
PATRIATION PROCESS!
80. THE FAILED CONFERENCE OF 1980
IN THE FAILED CONFERENCE OF 1980 PRIME
MINISTER TRUDEAU HAD REJECTED THE 1972 JOINT
COMMITTEE RECOMMENDATION REGARDING
ABORIGINAL PEOPLE.
81. OA CONSTITUTIONAL CONFERENCE FOR FIRST
MINISTERS WAS TO BE HELD NOVEMBER 1981. AT THIS
CONFERENCE A FEDERAL PROVINCIAL ACCORD WAS
REACHED!!
IN RETURN FOR ALLOWING 3 PROVINCES TO OPT OUT
OF FUTURE AMENDMENTS, THE PROVINCES AGREED
TO INSERT THE CHARTER OF RIGHTS AND FREEDOMS.
A FORMULA WAS AGREED UPON WHEREBY THE
SENATE AND COMMONS, WITH THE SUPPORT OF 2/3
OF THE PROVINCES REPRESENTING 50% OF THE
POPULATION, COULD AMEND THE CONSTITUTION.
AT THIS CONFERENCE THE CLAUSE THAT
RECOGNIZED AND AFFIRMED ABORIGINAL AND
TREATY RIGHTS WAS DROPPED!!
THE PRIME MINISTER AND THE PROVINCIAL
82. oIndians raised a storm of protest on this calulated move of the 2
levels of government to arbitrarily end the constitutional
protection of Indians.
82
83. oPublic opinion firmly supported including constitutional
safeguards for the Aboriginal peoples ...
Therefore a new, watered down clause was to be inserted which
affirmed and recognized “existing” Aboriginal and Treaty
Rights”.
83
84. In response to this watered down clause, the Assembly of First
nations and affiliated provincial and territorial organizations
stepped up their London Lobby in an effort to get the British
Parliament to insert stronger constitutional safeguards for
Aboriginal and treaty rights. - remember Indian treaty rights were
negotiated with the Crown, not with Canada.
84
85. On June 25, 1969, Jean Chretien, then Cabinet Minister for
Indian Affairs and Norther Development, tabled a government
policy proposal entitled “A Statement of the Government of
Canada on Indian Policy”.
This Document is commonly known as the White Paper.
85
86. The document can be traced to the heady days of 1968 when
Pierre Trudeau, the major proponent of the White Paper, was
elected as Prime Minister of Canada.
86
87. oThe themes od Trudeau’s election campaign & indeed the person
history of the man centered upon “justice’ and the “just society.’
Individualism and the protection of individual rights lay at the
basis of this orientation.
87
88. To Trudeau, justice and equality for Indians (Trudeau style) would
mena an emphasis upon the individual equality of indian
Canadians - at the expense of their legal status.
88
89. The policy was composed of 6 points which the federal government felt would end the
“Indian Problem” within a few years.
1. The legislative and constitutional basis of discrimination must be removed.
2. There must be positive recognition by everyone of the unique contribution of Indian
culture to Canadian society.
3.Services must come through the same channels and from the same government
agencies for all Canadians.
4. Those who are furthest behind must be helped the most
5. Lawful obligations must be recognized Control of Indian lands must be transferred to
Indian people.
89
90. All in all, the White Paper of 1969 was an attempt by the Federal
government to abandon its legal and moral obligations to the
Indian.
The Federal government blatantly advocated the termination of
the legal recognition of Indians in the hope that Indians would
assimilate gracefully into the dominant society through short-term
economic aid.
90
91. oMoney may be the root of all evil, but it is also a major
consideration whenever life’s toughest decisions have to be made.
In the case of the White Paper and the Federal Government’s
goals, by transferring responsibility for Indians to the provinces,
the Federal Government hoped that it could avoid potentially
costly land claim settlements and future claims for Aboriginal and
full treaty rights.
91
