ON BEING HERE TO STAY Treaties and Aboriginal Rights in Canada What, other than numbers and power, justifies the Canadian state's as sertion of sovereignty and jurisdiction over its vast territory? Why should Canada's original inhabitants have to ask for rights to what was their land when non-Aboriginal people first arrived? These questions- which lie at the heart of every court judgment on Indigenous rights, every demand that treaty obligations be fulfilled, and every land-claims negotiation-have occupied anthropologist Michael Asch for nearly thirty years. In On Being Here to Stay, Asch re-examines the history of Canada, focusing on fw1damental issues concerning Abo riginal rights and the relationship between First· Nations and Settlers. Taking its title from the statement by Chief Justice Lamer in Delgamuukw v. British Columbia ("Let us face it, we are here to stay"), this book addresses the grounds upon which Settlers can claim their right to stay, beyond their power to insist on it. Asch provides evidence -long articulated by First Nations- that, in treaties negotiated immedi ately after Confederation, the shared understanding was one of an open ended relationship that permitted Settlers to inhabit the land, on a shared basis, in return for fulfilling certain obligations. Considering a range of possibilities and alternative views, Asch proposes a way forward built on respecting the "spirit and intent" of these treaties, through which, he argues, First Nations and Settlers can establish an ethical way for both communities to be here to stay. MICHAEL ASCH is a professor emeritus in the Department of Anthropology at the University of Alberta and a professor (limited term) in the Department of Anthropology and adjunct professor in the Department of Political Science at the University of Victoria. MICHAEL ASCH On Being Here to Stay Treaties and Aboriginal Rights in Canada UNIVERSITY OF TORONTO PRESS Toronto Buffalo London ©University of Toronto Press 2014 Corl.tents Toronto Buffalo London www.utppublishing.com Printed in Canada ISBN 978-1-4426-4028-3 (cloth) ISBN 978-1-4426-1002-6 (paper) Printed on acid-free, 100% post-consumer recycled paper with vegetable based inks. Library and Archives Canada Cataloguing in Publication Preface vii Asch, Michael, author On being here to stay: treaties and Aboriginal rights 1 Overview 3 in Canada/Michael Asch. 2 Aboriginal Rights and the Canadian Constitution 10 Includes bibliographical references and index. ISBN 978-1-4426-4028-3 (bound).-ISBN 978-1-4426-1002-6 (pbk). 3 Aboriginal Rights and Temporal Priority 34 1. Native peoples- Legal status, laws, etc. -Canada. 2. Native peoples 4 Aboriginal Rights and Self-Determination 59 Canada-Government relations. 3. Native peoples-Land tenure- Canada. 4. Native peoples-Canada- Claims. I. Title. 5 Treaty Relations 73 E92.A74 2014 323.1197'071 C2013-907135-0 6 Treaties and Coexistence 100 7 Treaties and Sharing 116 This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to 8 Spirit and Intent 134 Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. 9 Setting the Record Straight 152 University of Toronto Press acknowledges the financial assistance to its Appendix I: Proportionality 167 publishing program of the Canada Council for the Arts and the Ontario Arts Council. Appendix II: Treaty Map 171 ~ n~ Notes 173 ONTARIO ARTS COUNCIL ~~ fCoarn tahdea ACrotsu ncil dCuo nCsaenila ddeas Arts ................~ .~~~.~.~ ~~.~~~::~. ~~. ~~ References 191 It AMI 01 IOVII(N lXI GOUYUNlMlNT Dl l'ONT.UIO AUX AAU Index 205 University of Toronto Press acknowledge th Government of Canada through the an ada B activiti . Preface I tarted out to write a book that would need little further research. It w to be a book that put in one place a position on the political rela li nship between Indigenous peoples and the Canadian state that I had en developing for thirty years and more. But that is not the book I have written. The first four chapters did go as planned. They are largely a render ing of key features of my argument on the theme just mentioned. But beginning with the fifth chapter, I embarked on an adventure that led me to include information of which I was already knowledgeable but never thought would be relevant, as well as information that was en tirely new, at least to me. That is the manuscript I presented to the University of Toronto Press. Here is what happened. The position I have long held rests on the principle, as confirmed in the 1960 United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples (or simply the Declaration on De Colonization), to which Canada is a signatory, that, at least with respect to colonized peoples, it is wrong legally as well as morally to move onto lands belonging to others without first obtaining their permission. The centrepiece of my approach to reconciling this principle with the fact that Canada is on lands that belong to Indigenous peoples was to determine what permission from them might entail; and to that end I chose to look in particular at what Indigenous peoples today explain are the terms of treaties made with the Crown in the past that permitted settlement on their lands. I had no intention to delve into whether there had been agreement on these terms in the past. Rather, I reasoned that, whether or not such agreement had existed when the treaties were negotiated, the terms of these treaties, as Indigenous peoples present them today, serve viii Preface Pr fa ix as a proxy (by which I also mean an approximation) for what would be thi b ok would go: res arch into positions on the proper approach to their position on the terms of an arrangement with the state were Canada 1 •I, ti ns with Indigenous peoples taken by the British (and Canadians) now seeking to act in compliance with the UN Declaration. n th p riod leading up to and after Treaty 4 was negotiated in 1874. My reason for avoiding the issue was not that I disbelieved the de And that led me to information I otherwise would never have found. To scription of these terms provided by Indigenous authorities on the mat t,,k one example, in 1840 the then influential Aborigines' Protection ter (by which I mean in particular elders but also other leaders and i ty (APS) advocated model legislation for interaction with Indig knowledge bearers). I fully expected that what they described would •n us peoples based on 'the indefeasible rights of ever~ people, (not conform well with evidence of what transpired derived from other mder allegiance to any other power,) to the natural nghts of man, sources. Instead, my concern was that the representatives of the Crown mprehending, acted fraudulently in the sense that they did not mean what they said -a view that is abundantly confirmed by the manner in which the gov Their rights as an independent nation. That no country or people ernment of Canada has acted when it comes to implementing the terms, has a right by force or fraud to assume the sovereignty over any even those that appear in the government's version of them. ther nation However, in re-reading recent Supreme Court of Canada judgments 2 That such sovereignty can only be justly obtained by fair treaty, and on treaties, I returned to a set of principles that I had previously not with their consent.' (Aborigines' Protection Society 1840: 14; emphasis taken seriously enough. To use this illustration, there is this passage in added) R v. Badger: 'First, a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. Second, the honour From this and information from other sources, I concluded that there of the Crown is always at stake; the Crown must be assumed to intend i every possibility that, were he of a similar view, not only did Morris to fulfil its promises. No appearance of "sharp dealing" will be sanc mean what he said, a position for which there is further support (at tioned' (Badger 1996: Preface). In short, I now read this to mean that, in 1 ast as I read the text) in Robert J. Talbot's recent biography of the man the Court's view, what the Crown represented at the negotiations had (Talbot 2009), but there was every likelihood that in so doing he was to be considered as truthful regardless of original intent. I decided to advancing a position shared by many others (a position further con adopt that perspective. firmed in the position taken by then Canadian Governor General Lord With that in mind, I looked more closely at the degree of correspon Dufferin, who was Morris's superior when the latter was acting in his dence between what Indigenous authorities today render as the treaty capacity as lieutenant governor of Manitoba). In other words, at leas~ in terms and what the treaty commissioners actually said. And as luck so.me treaties, there is good reason to conclude that the representation would have it, the record of the treaty I had chosen to use as my exem of the agreement Indigenous authorities offer is by and lar~e an accu plar of the terms of treaties as represented by Indigenous peoples, rate depiction of what was, at the time, a shared understandmg. Treaty 4, contained an abundance of information from contemporane I approach this conclusion cautiously. It is hardly definitive, for much ous accounts (and in particular a shorthand transcript) on what was of the information on which it is based is new to me and so I have as yet said by all parties when it was negotiated. Reading the words of the had no opportunity to further explore the direction in which it may be lead commissioner, Alexander Morris, led me to contemplate the pos leading. That is, the 'yes, but' that I imagine in the heads of many read sibility that he actually meant what he said: a possibility that, as you ers is also in my head. There are other facets to this story, and its darker will see, is reflected in my conclusions to chapter 5. This led me to reca aspects must never be overlooked. Indeed, overall I have not changed librate my interpretation of the written version of Treaty 4 and other my view of the original intent of the Crown in most treaties. But my re similar treaties (including the cede and surrender clause). search has led me to conclude that there is at least a case to be made for It then became important to me to see if there was evidence to support the proposition that there were those who acted in good faith_i n the past, my sense that, at least in this treaty, the Crown's representative acted in and thus the possibility that, while to act honourably now 1s to depart good faith, and that headed me in a direction I had never anticipated from how we have acted in the past, it is also to keep faith with it. X Preface Preface The book headed me in another unanticipated direction worth men Noble, D.A. Sonneborn, Heidi Stark, and Jim Tully. I would like to tioning. As originally conceived, I was going to leave the words of knowledge too a number of people with whom I have had many pro Indigenous authorities uninterpreted, and, beyond paraphrasing, for ductive conversations on the various topics addressed, a group that the most part that is what I have done. However, there is at least one includes Taiaiake Alfred, Jessica Asch, John Borrows, Aimee Craft, place in which I decidedly do not. It pertains to my discussion of what Alison DuBois, Avigail Eisenberg, Tony Fisher, Rachel Flowers, Joyce constitutes the treaty relationship. Among the phrases Indigenous au Green, Rob Hancock, Al Hanna, Johnny Mack, Joelle Alice Michaud thorities often use to describe it is a 'nation-to-nation' relationship. Ouellet, Marc Pinkoski, Peter Stephenson, Neil Vallance, Rob Walker, One might take this and others (such as the use of the term 'brother' to Jeremy Webber, Allyshia West, and Kelsey Wrightson. I thank Rob describe the relationship between nations) as loose metaphors. But I Hancock as well for his invaluable assistance in assembling this vol decided that this was not good enough. If we are to have a treaty rela ume. I also wish to express my appreciation for the comments of the tionship, and if it is to be founded on terms we share with Indigenous three anonymous readers of the manuscript, all of whom helped me will peoples, then it is incumbent on those of us I describe as Settlers (I reflect on the clarity of what I had written and, where I could, improve explain my choice of words in chapter 1) to understand to what we are on it. Also deserving of thanks are Virgil Duff and Douglas Hildebrand agreeing; and that means confronting at least this fundamental prob at the University of Toronto Press for their support throughout, my ed lem: to the Western-trained mind, terms like 'nation-to-nation' and iter, Curtis Fahey, and my indexer, Judy Dunlop. 'brothers' do not, at first blush, appear to make sense in this context. Researching the book was made easier through the funding assis A relationship between equals, which is what both terms suggest, tance provided by SSHRC - through the standard research grants pro requires (at least as modernity describes it) that each party is a state gram as well as through two Major Collaborative Research Initiatives, with sovereignty and jurisdiction over a territory. Yet Indigenous au the Indigenous Peoples and Governance Project and the Intellectual thorities inform us that we did not acquire sovereignty and jurisdiction Property Issues in Cultural Heritage-and, at the University of Victoria, over any territory. Therefore, we cannot be equals, for a party that does by the Office of the Vice-President (Research), the Dean of Law, and the not have sovereignty and jurisdiction in a territory cannot have the Dean of Social Science. I am thankful equally to logistical assistance and same standing as one that does. the home provided me by the Department of Anthropology at the The question, then, is whether there is a way to make sense of this; University of Victoria. and to that end, I suggest that what is most important is to work with The book could not have been written were it not for the efforts of my Indigenous peoples on the matter. However, I also offer a suggestion on wife, Margaret Asch, and Carl Urian, who both sought to help me by a way to begin that brings into conversation the ideas of, among others, offering their insights on tl:te adequacy of my argument and my render Thomas Hobbes, the Mohawk Chief Kiotseaeton, Claude Levi-Strauss, ing. I will be forever grateful for the caring way in which they reviewed and Harold Johnson regarding the principles on which society is orga what I wrote, and the supportive manner in which they conveyed their nized. While that portion of the book is the product of much work and comments on it to me. While I am the author and thus take ultimate many iterations, I offer my interpretation gingerly. It is simply my best responsibility for what it contains, the book in fact is the fruit of our effort at explanation: words offered to stimulate dialogue rather than joint efforts. establish authority. This book is dedicated to Mrs Jessie Hardisty (1885-1985)1 of Wrigley (Pehdzeh Ki), Northwest Territories, whose kindness and wisdom have In this book, I rely on contributions of many people who have com nurtured Margaret and me since we, then in our mid-twenties, first municated their understandings regarding the aspects of the topics arrived in that community in August 1969. covered, and for the integrity with which these have been offered I am thankful. I am grateful in particular to those among my colleagues who took the time to consider and comment on drafts of various chap ters, among whom are: Seth Asch, John Lutz, Warren Magnusson, Brian ON BEING HERE TO STAY Treaties and Aboriginal Rights in Canada Chapter One Overview Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet, supra, at para. 31, to be a basic purpose of s. 35(1) -'the reconciliation of the pre-existence of aboriginal soCieties with the sover eignty of the Crown.' Let us face it, we are all here to stay. (Chief Justice Antonio Lamer, Delgamuukw 1997, para. 186) Introduction Chief Justice Lamer speaks a truism: 'we are all here to stay.' Those of us whose ancestors were here prior to European settlement are here by dint of that fact. But that does not go far enough. What about those of us who carne after? What, beyond the fact that we have the numbers and the power to insist on it, authorizes our being here to stay? It is admittedly not an issue that confronts most of us in our daily lives. Still, the topic perennially bedevils us. It lurks in the background when Indigenous peoples protest developments on what they describe as 'their lands'; when courts make judgments on their rights; when we are challenged to fulfil our treaty obligations; and in every 'land-claims' negotiation. Why do they have 'land claims'? Were they not here, al ready living on the land, when Settlers carne? If so, how did they lose 'their land,' and by what authority do we claim the right to determine what is to be negotiated? Each of these matters, and a myriad others, from residential schools to governance, traces itself back to the answer to that question: 'What, beyond the fact that we have the numbers and the power to insist on it, authorizes our being here to stay?' 4 On Being Here to Stay Overview 5 The question is one that manifestly requires an answer, for among This book presents the development of my thinking on this matter. It those who came after, like myself, are people who believe firmly that it begins, in chapter 2, with a brief review of the history of political rela is not right to move onto lands that belong to others without their per tions between Indigenous peoples and Canada from 1973 to the pres mission. Yet there are many places in Canada where we did just that. ent. I start there because it is commonly accepted that the contemporary What is our justification for asserting that we are here to stay in those relationship originates in a judgment in which the Supreme Court of places? There are also places where we did follow our principles by Canada recognized that, at the time of European settlement, Indigenous gaining permission to be here to stay through agreements we negotiat peoples had rights based on the fact that there were already here, living ed with those who were already here. However, as I will show, it is also in societies. It is with this judgment, I suggest, that the question of clear that these agreements did not give us the authority to live as whether these rights survived European settlement, and if so what they though these lands now belong to us. What, then, is the basis for assert are, came to the foreground. The first was answered affirmatively with ing that we are here to stay in those places? the inclusion of Aboriginal rights in the 1982 constitution, and as to the Most of us can go about our lives as though questions such as these second, while the full scope of these rights has yet to be determined, it do not require addressing. We take for granted the idea that we are all has become clear that, if the courts and the government have their way, here to stay because we are Canadians and Canada has sovereignty and Aboriginal rights will never be interpreted as including many political jurisdiction over these territories. But that just begs the question: If this rights, and certainly not the right to self-determination of colonized is so, then how did Canada gain the authority to govern lands that were peoples. I conclude by indicating that Chief Justice Lamer summarized already being governed by others, and if not, what then is the basis for this proposition when he asserted that to be 'here to stay' requires rec our right to be here to stay? In short, while these questions may seem onciling 'the pre-existence of aboriginal societies with the sovereignty abstruse, they lie at the heart of the matter, for, if we are to move be of the Crown,' rather than the other way around. yond the mere assertion that we are here to stay because we have the In chapter 3, I take up the proposition that the very idea of assuming power to do so, we must reconcile that fact with our sense that it is that Aboriginal rights might include political rights is absurd. It fo wrong to simply move onto lands that belong to others. cuses in particular on the arguments presented in First Nations? Second Addressing the origin of Canada's assertion of sovereignty and juris Thoughts (2008) by political scientist Tom Flanagan, who is likely the diction has occupied me for nearly thirty years. My first reflections ap most prominent proponent of this view in the academy. I respond to his peared in Home and Native Land (Asch 1984), where I soughtto understand invitation to those whose views are akin to my own 'to reply in kind' the meaning of 'Aboriginal rights' in section 35 of the then recently ad (Flanagan 2008: 10) by entering into a dialogue with those portions of opted Canadian Constitution Act of 1982. At that time, I took the view his text in which he lays out arguments in Western political and legal that the adoption of this term reflected Canada's acknowledgment that thought that favour the view that the legitimacy of Canada's sover Indigenous peoples had the right to self-determination held by colo eignty and jurisdiction arises independently of the fact that Indigenous nized peoples in places where the 1960 United Nations Declaration on peoples were already living here when we first arrived. The result, De-Colonization applied. It recognized that Indigenous peoples here I hope, is to show that arguments in Western political and legal thought held the same right to free themselves from colonial domination, not favouring the view I support are more compelling. withstanding that (primarily) European states had claimed sovereignty With that in mind, I turn in chapter 4 to a detailed discussion of and jurisdiction over these territories, as did others in those parts of the the implications of taking that view. It is based on the understanding world where the colonized represented a majority of the population. that, as I first outlined in Home and Native Land, the United Nations That determination led me to consider the status of those such as myself ' Declaration on De-Colonization applies to Indigenous peoples who whose only claim to be here to stay rests on our belonging to the kind of find themselves within Canada. My conclusion is that, while the argu state that elsewhere in the world Canadians might well condemn as il ment is irrefutable in principle, the implications are so extreme that the legitimate, as is attested to by our support for the 1960 UN Declaration principle could be applied only with the consent of those who now and our resolve to end South African apartheid. constitute the majority of the population in this country. This, I argue,