To restore the essence of the early relationship between Aboriginal and settler societies described in Chapter 1, the elements of partnership must be recreated in modern form. The starting point for this transformation is recognition of Aboriginal nationhood.

Aboriginal Peoples as Nations

The arguments for recognizing that Aboriginal peoples are nations spring from the past and the present. They were nations when they forged military and trade alliances with European nations. They were nations when they signed treaties to share their lands and resources. And they are nations today - in their coherence, their distinctiveness and their understanding of themselves.

Recognition of Aboriginal nationhood poses no threat to Canada or its political and territorial integrity. Aboriginal nations have generally sought coexistence, co-operation and harmony in their relations with other peoples. What they seek from Canada now is their rightful place as partners in the Canadian federation.

This chapter shows how the foundations of Aboriginal nationhood were undone and how they can be rebuilt.

The Case for Self-Government

Aboriginal people trace their existence and their systems of government back as far as memory and oral history extend. They say that the ultimate source of their right to be self-governing is the Creator. The Creator placed each nation on its own land and gave the people the responsibility of caring for the land - and one another - until the end of time.

Three other sources of the right of self-government apply to Aboriginal peoples:

• In international law, which Canada respects, all peoples have a right of self-determination. Self-determination includes governance, so Indigenous peoples are entitled to choose their own forms of government, within existing states.

• In Canadian history, the colonial powers won no 'rights of conquest', for there was no conquest. Nor was North America terra nullius, free for the taking, as was claimed later. In most of their early dealings with Indigenous peoples in what is now Canada, the colonial powers recognized them as self-governing nations - codifying their recognition in treaties and in the Royal Proclamation of 1763.

• Aboriginal peoples' right of self-government within Canada is acknowledged and protected by the constitution. It recognizes that Aboriginal rights are older than Canada itself and that their continuity was part of the bargain between Aboriginal and non-Aboriginal people that made Canada possible.

Aboriginal nations have accepted the need for power sharing with Canada. In return, they ask Canadians to accept that Aboriginal self-government is not, and can never be, a 'gift' from an 'enlightened' Canada. The right is inherent in Aboriginal people and their nationhood and was exercised for centuries before the arrival of European explorers and settlers. It is a right they never surrendered and now want to exercise once more.

We believe Aboriginal people must be recognized as partners in the complex arrangements that make up Canada. Indeed, we hold that Aboriginal governments are one of three orders of government in Canada - federal, provincial/territorial, and Aboriginal. The three orders are autonomous within their own spheres of jurisdiction, thus sharing the sovereignty of Canada as a whole. Aboriginal governments are not like municipal governments, which exercise powers delegated from provincial and territorial governments.

Shared sovereignty is an important feature of Canadian federalism. It permitted the early partnership between Aboriginal and non-Aboriginal people, and later it permitted the union of provinces that became Canada.

Canadian governments are coming gradually to accept the idea of shared sovereignty and Aboriginal self-government. But they have been loath to hand over the full range of powers needed by genuinely self-governing nations or the resources needed to make self-government a success.

Rebuilding Aboriginal Nations

We have concluded that the right of self-government cannot reasonably be exercised by small, separate communities, whether First Nations, Inuit or Métis. It should be exercised by groups of a certain size - groups with a claim to the term 'nation'.

The problem is that the historical Aboriginal nations were undermined by disease, relocations and the full array of assimilationist government policies. They were fragmented into bands, reserves and small settlements. Only some operate as collectivities now. They will have to reconstruct themselves as nations.

Self-government is a right they never surrendered and that they want to exercise once more.

We believe strongly that membership in Aboriginal nations should not be defined by race. Aboriginal nations are political communities, often comprising people of mixed background and heritage. Their bonds are those of culture and identity, not blood. Their unity comes from their shared history and their strong sense of themselves as peoples.

The work of reconstructing their nations poses great challenges for Aboriginal people. They will need to

• reconnect communities split apart by years of band or settlement administration

• develop constitutions, design structures, and train personnel to make laws and administer decisions

• negotiate new relations with the other two orders of government in Canada

They will need to develop their human resources. They will have to build an Aboriginal public service from the strong base in community administration they have now. They will have to encourage the attitudes necessary to be self-governing. And they will have to promote healing - the deep social and spiritual recovery process already under way in many Aboriginal communities.

To support the rebuilding of Aboriginal nations and shift from paternalistic policies to partnership relations, we propose a bold starting place: a new Royal Proclamation, issued by the Monarch as Canada's head of state and guardian of the rights of Aboriginal peoples.

A new proclamation would signal, in dramatic terms, a new day for Aboriginal people. Its all-important preamble should contain these elements:

• Reaffirmation of Canada's respect for Aboriginal peoples as distinct nations.

• Acknowledgement of harmful actions by past governments, which deprived Aboriginal peoples of their lands and resources and interfered with family life, spiritual practices and governance structures.

• A statement placing the relationship on a footing of respect, recognition, sharing and mutual responsibility - thus ending the cycle of blame and guilt and freeing Aboriginal and non-Aboriginal people to embrace a shared future.

• Affirmation of the right of Aboriginal peoples to fashion their own lives and control their own governments and lands - not as a grant from other Canadian governments, but as a right inherent in them as peoples who have occupied these lands from time immemorial.

• Acknowledgement that justice and fair play are essential for reconciliation between Aboriginal and non-Aboriginal people and a commitment by Canada to create institutions and processes to strive for justice.

The proclamation should be followed by the enactment of companion legislation by the Parliament of Canada - legislation to create the new laws and institutions needed to implement the renewed relationship. Their combined purpose is to provide the authority and tools for Aboriginal people to structure their own political, social and economic future.

Traditionally, there were checks and balances that were functional and
appropriate for the Anishnabek. The leaders were servants to the people
and upheld the values that were inherent in the community. Accountability
was not a goal or aim of the system; rather it was embedded in the very
make-up of the system.
       Union of Ontario Indians
       Brief to the Commission (1993)

Of particular importance among these laws is an Aboriginal Nations Recognition and Government Act to give the government of Canada a mechanism for acknowledging established Aboriginal nations once their processes of internal reconstruction and institution building are complete.

To prepare for the new start, the federal government will need to undergo some reorganization of its own:

• The Department of Indian Affairs and Northern Development and the ministerial position that goes with it should be eliminated.

• A new senior cabinet position, the Minister for Aboriginal Relations, and a new Department of Aboriginal Relations should be assigned to negotiate and manage new agreements and arrangements from the federal government's side.

• Another minister, the Minister of Indian and Inuit Services, and a new Indian and Inuit Services department should be assigned to deliver the gradually diminishing services coming from the federal level.

The Prime Minister should assume responsibility for launching and sustaining the renewed relationship and signal the significance of the new deal by participating at every stage.

Models and Powers of Self-Government

Aboriginal visions of self-government are as varied as their traditions, circumstances and aspirations. Scores of detailed proposals for self-government have been drawn up by Aboriginal peoples across Canada. The Commission identified three basic models, each with many possible variations. These models are all realistic and workable in the framework of the Canadian federation.

Nation Government

Aboriginal people with a strong sense of shared identity and an exclusive territorial base will probably opt for the 'nation' model of self-government. Inside their boundaries, nation governments would exercise a wide range of powers and authority. They might choose to incorporate elements of traditional governance. They could choose a loose federation among regions or communities, or a more centralized form of government. They will need to find ways of representing the interests of non-Aboriginal residents in decision making.

Public Government

In some regions, Aboriginal people are the majority in territory they share with non-Aboriginal people - for example, in the more northerly parts of the country. Existing agreements (such as the Nunavut Agreement) signal that Aboriginal nations in that situation will probably opt for the 'public' model of self-government. In this model, all residents participate equally in the functions of government, regardless of their heritage. Structures and processes of government would likely be similar to those of other Canadian governments - but with adaptations to reflect Aboriginal traditions and protect Aboriginal cultures.

The Teslin Tlingit Nation in the Yukon are building from the clan to the nation through the establishment of several branches of government: a general council, an executive council, an elders council and a justice council. While these councils are not duplicates of traditional Tlingit institutions, they do reflect the importance of the clans in their composition and in their consensual decision-making style.

Community of Interest Government

In urban centres, Aboriginal people from many nations form a minority of the population. They are not 'nations' in the way we define it, but they want a measure of self-government nevertheless - especially in relation to education, health care, economic development, and protection of their cultures. Urban Aboriginal governments could operate effectively within municipal boundaries, with voluntary membership and powers delegated from Aboriginal nation governments and/or provincial governments.

In our judgement, the right of Aboriginal governments to exercise authority over all matters relating to the good government and welfare of Aboriginal peoples and their territories is an existing Aboriginal right and is therefore recognized and affirmed by the constitution.

This governing authority has two parts: a 'core' and a 'periphery'. The core of Aboriginal jurisdiction consists of matters that are of vital concern to the life and welfare of a particular Aboriginal people, its culture and identity - but do not have a major impact on neighbouring communities and are not otherwise the object of transcendant federal or provincial interest.

Legally, nothing prevents Aboriginal governments from taking charge of core issues in their communities and nations tomorrow. Practically, of course, they are tied into existing program arrangements with other governments. Before they can reasonably be expected to take charge, agreements about new funding formulas and many other issues are needed.

Matters on the periphery of Aboriginal jurisdiction - matters that affect the lands, resources and other interests of neighbouring people - must be subject to agreements with other governments. We have in mind such occasionally controversial issues as pollution control, road and rail access, wildlife protection, certain aspects of the justice system and so on - issues that will require shared or co-operative management arrangements.

Financing for Self-Government

The financing of Aboriginal governments will require new approaches - approaches that acknowledge that much of the wealth of this country comes from lands and resources to which, in many cases, Aboriginal people have a legitimate claim.

If self-government is accompanied by fair redistribution of lands and resources - as we argue it must be - Aboriginal governments can become largely self-financing in the long term through greater access to what are called 'own-source revenues'. Own-source revenues flow to governments through familiar channels - taxation, investment, borrowing, business fees and royalties, public corporation revenues, proceeds from lotteries and gaming, and so on. These sources of revenue can and should be made available to Aboriginal governments.

It is especially important for Aboriginal governments to develop their own taxation systems. Most Aboriginal people pay taxes now, but to provincial and federal governments. We are recommending that those who live on Aboriginal nation territories pay taxes primarily to their own governments. Those who live off Aboriginal territory would continue to pay taxes to federal and provincial governments.

It will take time for Aboriginal nations to develop own-source revenues. Even then, transfer payments from other governments will be needed - but to a lesser extent. We expect that treaties and other agreements among governments will free transfer payments from some of the restrictions on their use that now frustrate Aboriginal people.

In the old days, we had a tradition of caring and sharing. If a man was
sick or injured, the chief would delegate others to hunt for him and
provide fire wood [for his family]. We redistributed our wealth for the
good of all. And that is just what any good system of taxation is supposed
to do.
       Elder Ernie Crowe
       quoted by Chief Clarence Jules
       Kamloops First Nation community

Aboriginal nations, like the provinces, will have unequal access to resources and economic opportunities, so their level of prosperity will vary. We expect that nations that are well-off will help those that are not. Transfer payments from other governments will help to equalize the levels of service they can provide.

We also expect that, as they develop, Aboriginal nations will use their resources to take fiscal responsibility for their own governments and services. Transfer payments can be structured to encourage this, as now happens between the federal and provincial governments.

Redistributing Lands and Resources

All over the world and throughout history, collective control of lands and resources has been the key to prosperity and the basis of the powerful idea of 'home' that gives a people their common identity. Most Aboriginal people retain an intensely spiritual connection to the land of their ancestors - one that involves both continuity and stewardship. It is hardly surprising, then, that the most intense conflicts between Aboriginal and non-Aboriginal people centre on the use and control of land.

Across Canada, Aboriginal people are pressing for an expanded share - a fair share - of lands and resources that were once theirs alone. They were promised as much by the Crown of England and its successor, the government of Canada. Some Aboriginal nations signed treaties only because of that promise.

In fact, though, except in northern Quebec and the territories, the amount of land allocated for use by Aboriginal people is extremely small. Aboriginal lands south of the 60th parallel (mainly Indian reserves) make up less than one-half of one per cent of the Canadian land mass. By contrast, in the United States (excluding Alaska), where Aboriginal people make up a far smaller portion of the population, they hold three per cent of the land (see map).

Land reserved for Aboriginal people was steadily whittled away after its original allocation. Almost two-thirds of it has 'disappeared' by various means since Confederation. In some cases, the government failed to deliver as much land as specified in a treaty. In other cases, it expropriated or sold reserved land, rarely with First Nations as willing vendors. Once in a while, outright fraud took place. Even when First Nations were able to keep hold of reserved land, the government sometimes sold its resources to outsiders.

These disappearances took place despite the solemn duty of the Crown to manage lands and resources for the benefit of Aboriginal people.

Similarly, Métis people, who believed they had won the right to their own lands and resources in the bargain with Ottawa that led to the Manitoba Act, were driven further and further west - and ultimately dispersed as a people - by the largely fraudulent manner in which that bargain was administered.

Several other land policy issues have festered over the years:

• Governments have failed to allocate any lands at all to some Aboriginal nations.

• Governments have refused (with a few exceptions) to extend the land and resource base of First Nations as their populations, and their need for economic opportunity, grew.

• Large-scale resource development projects have had a destructive impact on Aboriginal lands and communities.

• Aboriginal peoples' treaty-protected harvesting rights on traditional lands have been opposed and blocked by non-Aboriginal people and governments.

Early in the relationship, colonial governments respected Aboriginal land rights and title. But over time, conflict grew. To non-Aboriginal people and governments, the many millions of unfarmed, undeveloped hectares of Canada were 'Crown land', public land - their land. To Aboriginal people, land belonged only to the Creator, but by virtue of their role as stewards, it was theirs to care for, to use - and to share if they chose.

We find ourselves without any real home in this, our own country... Our
people are fined and imprisoned for...using the same game and fish which
we were told would always be ours for food. Gradually we are becoming
regarded as trespassers over a large portion of this, our country.
       Chiefs of the Shuswap
       Okanagan and Couteau (Thompson) Tribes of British Columbia
       Letter to Prime Minister Sir Wilfrid Laurier (1910)

Treaty agreements did not end the conflict. Indeed, it became sharper as settlers took up residence next door to Aboriginal people, who had not foreseen how deeply settlers' ways would clash with their own. They thought that the Crown's treaty promises would be enough to ensure their survival and independence. They were wrong.

The conflict became more deeply entrenched when the Constitution Act, 1867 - drafted without discussion with Aboriginal people - assigned legal ownership of all Crown lands to the provinces.

If what Aboriginal peoples thought they had won had been delivered - a reasonable share of lands and resources for their exclusive use, protection for their traditional economic activities, resource revenues from shared lands, and support for their participation in the new economy being shaped by the settlers - the position of Aboriginal peoples in Canada today would be very different. They would be major land owners. Most Aboriginal nations would likely be economically self-reliant. Some would be prosperous.

Some Aboriginal nations have gone to court to force governments to recognize their rights to land and resources, and some have been successful. A series of court decisions has confirmed that Aboriginal peoples have more than a strong moral case for redress on land and resource issues - they have legal rights.

The law of Aboriginal title establishes three things:

• Aboriginal people have rights of occupancy or use of portions of Canada that far exceed their current land base. These rights are based on their history of having lived in and used those lands since time immemorial.

• Agreements between the Crown and an Aboriginal nation (such as treaties) must be worked out before non-Aboriginal people can occupy or use that nation's traditional lands.

• The Crown of Canada is the guardian of Aboriginal title to their traditional lands and is obliged to support and protect their interests in those lands.

But the courts are a cumbersome, costly and sometimes insensitive way to solve the human issues that underlie land and resource claims. Negotiated settlements, in which the parties talk face to face and work out complex deals, are preferable. Indeed, in nation-to-nation relations, they are essential.

Lands and resources are owing to Aboriginal peoples for both contemporary and historical reasons. Lands and resources are the essential substructure of political, economic and social development. To rebuild their nations, Aboriginal people need

• enough land to give them something to call 'home' - not just a physical space but a place of cultural and spiritual meaning as well

• enough land to allow for traditional pursuits, such as hunting and trapping

• enough lands and resources for economic self-reliance

• enough lands and resources to contribute significantly to the financing of self-government

It has never been the role of the Courts to define the detailed terms
of the accommodation between the Crown and the First [Peoples]. We have
gone to the Courts in our own defence.
       Chief Edward John
       First Nations Summit of British Columbia

Fair Sharing: A Plan

For many years, Canada has had a land claims process. Its purpose is to allow First Nations to pursue either a specific claim - for example, the return of reserve land improperly sold off by the government - or a comprehensive claim to an allotment of the nation's traditional land in a case where it has no treaty or other settlement with Canada.

The existing land claims settlement process is deeply flawed:

• It assumes that no Aboriginal rights apply on Crown land - unless Aboriginal nations can prove otherwise. This position is at odds with the doctrine of continuing Aboriginal title and with the duty of the Crown to protect Aboriginal interests.

• The government of Canada controls the process. It acts as defender of the Crown's interests and also as judge and jury on claims. This is a clear conflict of interest, since it considers itself the 'loser' when a claim is settled in favour of Aboriginal people.

• The process is not generally open to Métis claims, leaving Métis people without a land and resource base and with no way of settling their grievances.

• The government has always (except in one instance) required Aboriginal claimants to give up - or 'extinguish' - their general Aboriginal land rights, in favour of specific terms laid down in the settlement. Aboriginal people cannot accept the rupture of their special relationship with their lands that extinguishment implies.

A new process for negotiating the fair distribution of lands and resources is long overdue. The Commission proposes that this be handled as part of a new treaty process (outlined later in the chapter). The process would result in three categories of land allocation:

1. Lands selected from traditional territories that would belong exclusively to Aboriginal nations and be under their sole control.

2. Other lands in their traditional territories that would belong jointly to Aboriginal and non-Aboriginal governments and be the object of shared management arrangements.

3. Land that would belong to and remain under the control of the Crown but to which Aboriginal people would have special rights, such as a right of access to sacred and historical sites.

We believe the principle of sharing of our homeland [and] its natural
resources is the basis of the treaty arrangements... Accordingly, the
concepts of resource co-management and revenue sharing from the Crown
lands are the proper forms of treaty implementation.
       Chief George Fern
       Prince Albert Tribal Council
       La Ronge, Saskatchewan

The third one would be the largest category of lands.

As a support to the new process, we are recommending establishment of regional treaty commissions and an Aboriginal Lands and Treaties Tribunal.

Regional treaty commissions would facilitate and support treaty negotiations but would not conduct negotiations - this would remain the responsibility of political leaders.

The tribunal would be responsible, first and foremost, for ensuring that treaty negotiations were carried out in good faith and financed fairly. Second, it would ensure that the interests of all parties were protected while treaties were being negotiated. Third, it would rule on discrete, specific claims that are capable of settlement in the short term.

In 1988, the Meadow Lake Tribal Council (mltc) of northwestern Saskatchewan got help from the federal government to buy a 40 per cent share in a struggling pulp mill, NorSask Forest Products, and update the mill's equipment. Help from the provincial government produced a tree-farm licence. The mltc then launched new businesses to do reforestation, logging and road construction. Mltc businesses have since paid $11 million in taxes and saved $10 million in social assistance costs by employing 240 people who would otherwise have been jobless.

The new treaty processes we propose will take time to show results. Steps must be taken in the meantime to provide enough lands and resources to meet Aboriginal nations' immediate needs.

• The federal government can help First Nations add to their existing land base by (1) allocating all land promised to them in existing treaties; (2) returning to First Nations all land it has expropriated or bought, then left unused; and (3) establishing a fund to help Aboriginal people purchase land on the open market.

• Aboriginal people have been largely excluded from the resource industries of Canada - even forestry and fisheries, where they once played a significant part in the labour force. Governments can revise their policies and set up programs to increase access to natural resources for Aboriginal people.

• Governments can continue along the route toward co-management arrangements with Aboriginal people. The goal of co-management is shared responsibility for and benefits from particular resources where overlapping interests are great, such as fisheries on the west coast, forestry in many regions, and all resources in certain national and provincial parks.

Failure to redistribute land and resources will doom Aboriginal people to a state of dependency on other Canadians - a sure recipe for grievance on both sides.

Economic Development

Aboriginal people want to make a decent living, to be free of dependence on others, free of the social stigma and sense of personal failure that go with dependence, and free of the debilitating effects of poverty. Economic self-reliance will let them thrive as individuals and as nations and make their new governments a success.

The historical self-sufficiency of Aboriginal people and nations was destroyed in several ways:

• Their control over their lands and resources was diminished or usurped.

• New forms of economic activity (agriculture, manufacturing) were monopolized by non-Aboriginal people and businesses.

• Governments failed to live up to the spirit and intent of treaty promises to preserve traditional means of self-sufficiency - hunting, fishing, trapping, trading - and to help Aboriginal people take up the trades and occupations of the settlers if they wished.

• Legislation, especially the Indian Act, interfered with economic activity on reserves by restricting the flow of capital and limiting the decision-making capacity of First Nations governments and entrepreneurs.

• Businesses, industries and other workplaces have begun only recently and occasionally to welcome and accommodate Aboriginal people as employees.

• Education and training facilities have begun only recently and occasionally to support Aboriginal people as students, with the result that few adults are equipped to compete for good jobs.

Several factors will make revitalization of Aboriginal economies a big challenge:

• Dependence: Most Aboriginal nations and communities are highly dependent on funds from other governments. Most offer only a limited range of job opportunities. Few can hold out the promise of jobs for the majority of their children.

• Inequality: In 1991, 54 per cent of Aboriginal people had annual incomes of less than $10,000, as compared to 34 per cent of Canadians generally. Unemployment is high, and it has risen noticeably in the last decade as the size of the youth population has swelled.

• Rapid labour force growth: Higher birth rates and life expectancy have produced a sharp increase in the Aboriginal population (see graph). The number of children under 16 is especially high, with sobering implications for future job needs.

• Variability: Aboriginal nations are located all over the country, from east to west and north to south, from isolated villages to urban enclaves. Most have limited natural resources at their command, although many have riches under their feet. Economic activity in communities ranges from traditional harvesting to modern wage work. Economies may be restricted by the Indian Act, assisted by federal programs - or outside the reach of both.

Because of this complexity, means and strategies to achieve self-reliance will vary. No single economic development plan or program will work.

Ownership of lands and resources is essential to create income and wealth for Aboriginal individuals and nations. But ownership is not enough. Communities and nations that want to control the wealth available from their resources don't want to leave operation of their economies to outside specialists. The challenge of skills development to meet the demands of both modern and traditional economic activity is just beginning to be met in Aboriginal communities.

Federal, provincial and territorial governments should co-operate to stimulate economic vitality in both the traditional and the modern sector - so that all Aboriginal people have the chance to make a reasonable living, whether as a carver in Cape Dorset, a teacher in Saskatoon, or a part-time trapper and radio technician in Moose Factory.

Recent progress in economic development gives rise to hope for a brighter future. But the challenge of turning pockets of progress into a broad transformation of economic life for Aboriginal people remains immense.

There are only five registered professional foresters and fewer than ten registered professional geologists of Aboriginal ancestry in all of Canada. In a recent discussion paper on social security reform, Human Resources Development Canada estimated that 45 per cent of all new jobs created between 1990 and 2000 will require more than 16 years of education and training

Levers of Economic Change

Transforming Aboriginal economies from dependence to self-reliance will not be easy. The greatest boost for most nations will come from access to a fair share of lands and resources.

The results of recent land claims settlements suggest that nations will use their timber, minerals, fish, wildlife and other resources to create jobs, bring in revenue, and lay the foundation of a diversified economy. Access to resources is the key, but increasing the land and resource base is not enough. Other strategies are needed too.

Regaining Control

As things stand, Aboriginal communities are subject to a changing array of economic development programs, most of them managed from distant government offices. They must tailor their ideas for stimulating the economy to program criteria set by external authorities.

We call on federal and provincial governments to enter into long-term development agreements with Aboriginal nations to provide support, advice and stable funding for economic development. Aboriginal nations would design programs, make investment decisions, and be accountable to their people for managing these resources.

Regaining control of economic matters without the human resources and capacity to manage them would spell trouble for Aboriginal nations. They must be helped to develop the personnel and the regional and national institutions they need to invest in and manage businesses in specific sectors - resource extraction industries, agriculture, communications, tourism, and so on.

Business Development

Governments have worked with Aboriginal entrepreneurs to help make business development one of the sparks of economic growth in Aboriginal communities. Many have demonstrated their capacity to master a wide range of commercial skills as individual entrepreneurs and as managers of community-owned businesses.

• Levels of business formation have been high in recent years. About 10 per cent of Aboriginal people report business ownership or income from self-employment.

• Self-employment has increased markedly in the last decade, particularly among Aboriginal women.

Entrepreneurs face the same challenges everywhere: the need to plan, raise money, produce a good product and market it effectively. But Aboriginal entrepreneurs face other obstacles too: limited capital for investment, distrust from banks and other financial institutions, absence of local business services and advisers, tiny local markets, and sometimes even hostility at home and from nearby communities.

Aboriginal nations have had perhaps their greatest successes through collectively owned enterprises - where shares in the company are held by the community or the nation government on behalf of its members. Through their companies, communities run regional airlines. They are involved in forestry management, silviculture, wood harvesting and processing. They run grocery stores and wholesale food distributing networks, motels, hotels, bowling alleys, golf courses and much more.

Some have had a rough ride - making mistakes, losing investments, sometimes experiencing bankruptcy. But valuable lessons have been learned, and there are now scores of Aboriginal people with the skills and confidence to manage the operations of modern commercial enterprises.

They, and those who would follow in their footsteps, still need support. We recommend that Aboriginal and non-Aboriginal governments work together to develop

• improved business services

• improved access to loan and equity capital, including the creation of a national Aboriginal development bank

• improved access to markets

My father-in-law, when he first heard that welfare was to be introduced
in the North, shuddered at this solution, [saying that] it will not create
a long-term economic solution that is acceptable to Inuit, but it will
create a great dependency, where no one will ever get out.
       Charlie Evalik
       Cambridge Bay, Northwest Territories

Employment

The employment problem is immense. More than 80,000 jobs are needed now, just to raise Aboriginal people's employment rate to the overall Canadian rate. Without action, the situation will deteriorate. The Aboriginal population is young: 56 per cent are under 24 years of age, compared with 34 per cent of all Canadians. An additional 225,000 jobs will have to be found in the next 20 years to put them to work.

We propose a sustained effort to increase employment for Aboriginal people, including

• a special 10-year program to train Aboriginal people for the work that has to be done in newly self-governing nations

• a new approach to employment equity, in which employers work with Aboriginal organizations to forecast vacancies and train Aboriginal people to fill them

• measures to increase the number of Aboriginal employment service agencies and their capacity to place Aboriginal people in the labour force

• provision of culturally appropriate and affordable child care, so that more Aboriginal parents can join the labour force

Ron Jamieson, a Mohawk from the Six Nations and a vice-president of the Bank of Montreal: "There is a perception in the Aboriginal and non-Aboriginal communities that Aboriginal people lack the skills and temperament to be effective entrepreneurs. I challenge that assumption." Jamieson identified four qualities essential for modern business that have long characterized Aboriginal people: risk taking, discipline, clarity of vision, and ability to meet the needs of the community or client.

Education and Training

Public investment in education and training is vital to improve employment prospects for Aboriginal people in the existing job market. There are shortages of trained Aboriginal people in such fields as economics, medecine, engineering, community planning, forestry, wildlife management, geology and agriculture - to name only a few.

Aboriginal nations cannot rebuild their political institutions, manage their economies or staff their social services without trained people. Yet high school and university completion rates are low among Aboriginal youth.

Motivating youth to complete their education is of great importance to the economic future of Aboriginal communities. Youth need a strong foundation in their traditions and proficiency in the skills valued by contemporary society. Those who master these skills and contribute to their communities and nations deserve to be celebrated as the modern equivalents of the great hunters and leaders of the past.

Education and training are discussed in more detail in Chapter 3.

Alternatives to Welfare

The need for welfare in Aboriginal communities came with the confiscation of ever expanding tracts of their land. Indigenous people grew poor, malnourished and sick. Many died young. The government chose to provide short-term 'relief' instead of sustained help to rebuild ravaged Aboriginal economies - a choice governments have made over and over again in the last two centuries.

Some years ago, in the Dene community of Fort Franklin in the Northwest Territories, the council decided to use a portion of welfare funds to pay welfare recipients to do much needed work around town: remodelling and repainting public buildings, cleaning public spaces, gathering wood for elders and single mothers. Although these projects had some success in meeting their goals, they were stopped by the funding government when authorities found out that recipients were working for welfare.

By the 1960s, welfare had become available to Aboriginal people as it was to other Canadians. Since then, more and more have become dependent. The rate of welfare dependence is now two to four times higher among Aboriginal people than among Canadians generally. Many speakers at the Commission's public hearings lamented the erosion of self-reliance among peoples once renowned for it, an erosion brought about by the combination of economic ruin and welfare availability.

There may never be enough jobs to go around in Aboriginal communities. Yet social assistance, as now delivered, is not a good way of providing cash income, for it traps recipients in a marginal existence. It may protect against abject poverty, but it can also stifle individual initiative, and it does little to deal with the community conditions that lead to dependence.

We think Aboriginal communities should be able to use the money now earmarked for individual welfare payments as an instrument of broader economic development:

• Aboriginal communities or nations could take charge of the funds their residents now receive for social assistance. These funds, along with a top-up amount for capital and other costs, could be used for local projects such as new roads, a community centre or a business venture. The able-bodied unemployed could work on these projects, receiving wages rather than welfare. They would gain experience and skills, and the community as a whole would benefit from their work.

• The maze of assistance programs available in urban centres could be simplified through single-window service delivery. Funds now available for life skills, job training, job finding, child care and income maintenance could be pooled to support holistic planning to help individuals make changes in their lives.

• In remote areas, income support funds could be used to support hard-to-finance activities such as traditional harvesting. The James Bay Cree Income Security Program provides a model.

These reforms are urgent. Commission research predicts that, unless economic conditions and welfare programs on reserves change radically and soon, the bill for social assistance will reach $1 billion by 1999 and $1.5 billion by 2002.

When Aboriginal youth seek employment, we not only have to overcome all
the employment barriers that youth in general face, we also have to deal
with racism in the workplace, both systemic and individual. Very few
employers will even give us the chance we need to prove that we are
capable of performing the job.... When are we going to be treated equally
and fairly by those with whom our ancestors so generously shared our land
and resources?
       Gail Daniels
       Anishnaabe Oway-Ishi
       Toronto, Ontario

Treaties:
The Mechanism of Change

The Commission proposes a wide-ranging agenda for change to achieve two goals:

• Rebuilding Aboriginal nations as the best and proper way for Aboriginal people to protect their heritage and identity, restore health and prosperity to their communities, and reorganize their relations with Canada.

• Restoration of relations of mutual respect and fair dealing between Aboriginal and non-Aboriginal people.

As complex as the project appears, it can be done. The central mechanism of change is the treaty.

Treaties have a long and honourable history as a way of solving disputes between peoples, nations and governments. Although Canada's historical treaties with Aboriginal nations have been ignored and violated over the years, the treaty format is still a powerful way of stating the terms of a relationship.

Treaties have a long and honourable history as a way of solving disputes between peoples, nations and governments.

To see how treaties can be used in the modern context, Canadians need to understand them better. In brief, the historical treaties are

• Promises exchanged between the governments of France, Britain and Canada, and Aboriginal peoples.

  To secure peace or alliance with Aboriginal nations, or gain occupancy and development rights on Aboriginal land, the Crowns of France, Britain and, later, Canada promised Aboriginal peoples protection, benefits and shares of wealth - in perpetuity. Those promises now rest with the governments of Canada.

• Nation-to-nation agreements.

  Treaties are not admissions of defeat or submission. Parties to a treaty do not give up nationhood or their own ways of living, working and governing themselves. Rather, they acknowledge their shared wish to live in peace and harmony, agree on rules of coexistence, then work to fulfil their commitments to one another.

• Commitments that are sacred and enduring.

  The historical treaties were taken very seriously by both sides. Their purpose was to create a relationship of peace and friendship that would last. The alternative was lost trade and possibly warfare and bloodshed. Treaties were sworn by sacred oaths, announced with great ceremony, and regarded as binding documents of state. The fact that they have been violated time and again does not change their underlying legitimacy.

• Part of Canada's constitution.

  The treaties set out broad social contracts between independent peoples, very like the terms of union by which former British colonies joined Confederation as provinces. They are constitutional documents, recognized and affirmed in section 35 of the Constitution Act, 1982. As such, they are part of the law of the land.

• Fundamental to Canada's honour.

  Treaty making is one of the great achievements of human societies. It enables the deepest conflicts to be set aside in favour of respectful coexistence. It expresses the choice to live in harmony with others, rather than spill blood or exercise power using more subtle forms of violence. The act of entering into a treaty, then as now, represents a profound commitment between peoples. Once made, a treaty is broken or ignored only at the cost of a stain on the good name of the nation or government that breaks it.

We propose that the treaty relationship be restored and used from now on as the basis of the partnership between Aboriginal and non-Aboriginal people in Canada.

This will require the fulfilment and renewal of existing treaties and the making of new treaties with Aboriginal peoples who do not have them now.

In our minds, if we are looking towards a future where we can have
peace in this land, the mechanism is there, and that is...those
relationships of friendship [in our treaties]... That is the foundation we
have to begin with.
       Charlie Patton
       Mohawk Trail Longhouse
       Kahnawake, Quebec

Treaty Fulfilment and Renewal

Accounts of negotiations leading to the historical treaties are full of stories of miscommunication and cross purposes. This is hardly surprising. Negotiators had no common language, no common frame of reference. Despite profoundly different cultures and world views, they were trying to figure out how to share a world.

Implementation of treaty terms and promises was problematic from the start. As time passed and the balance of power between Aboriginal and non-Aboriginal people shifted, governments were able to ignore terms and promises that no longer suited them. For example,

• The Anishnabe (Ojibwa) of Lake Huron and Lake Superior were promised that the annuity money they received for use of their traditional lands would increase if the revenues derived from their resources increased.

• The people of the Okanagan Valley in British Columbia were promised that if they opened their valley to settlers, they could choose reserve lands of any size and location.

• The chiefs of northwestern Ontario were promised the right to hunt and fish on Crown land forever, if they signed Treaty 9.

These promises were not honoured. Canadians believe in fair dealing, and treaty fulfilment, even after all these years, is still an imperative for Canada.

Treaty renewal is a way of addressing fundamental disagreements between Aboriginal and non-Aboriginal authorities about the accuracy of the treaties and about their real purpose.

Many Aboriginal people say that the written version of treaties fails to reflect crucial verbal agreements reached by negotiators. Further, they say that the treaties are not just records of a deal, but attempts to give shape to the infinitely complex business of sharing a country. They are agreements for living together and thus are living agreements that must be reviewed and reinterpreted periodically in light of their purpose - their 'spirit and intent'.

Non-Aboriginal governments take a much more restrictive view. They argue that the written treaty is the complete treaty and that it should be interpreted literally.

In approaching the terms of a treaty...the honour of the Crown is
always involved, and no appearance of ‘sharp dealing' should be sanctioned.
       Ontario Court of Appeal
       R. v. Taylor and Williams (1981)

The historical evidence is clear on the first point of disagreement: the written treaties often are not a full and fair statement of agreements reached.

On the second point, the Commission has concluded that the treaties should be implemented to reflect their spirit and intent - not just their words, whether spoken or written. The language of yesterday's treaties reflects yesterday's values.

For example, the $5 annual treaty money - a gift commemorating the agreement in Aboriginal eyes, a form of rent for use of the land in European eyes - was a significant sum in its time. Or, to take another example, the promise of a medicine chest for those who signed Treaty 6 was a commitment to provide the best health care available at that time.

What characterizes a treaty is the intention to create obligations...
Once a valid treaty is found to exist, the treaty must be given a just,
broad and liberal construction.
       Supreme Court of Canada
       R. v. Sioui (1990)

It is deeply self-serving of Canadian authorities to insist on a literal interpretation of such clauses. If the relationship between Aboriginal and non-Aboriginal people is ever to be set right, the underlying intentions of treaty promises - not the letter of outdated terms - must guide their present-day implementation.

To bring about fulfilment and renewal of the historical treaties, we recommend that Canadian governments

• honour the provisions of existing treaties as recorded in treaty text and supplemented by oral evidence

• interpret the terms of each treaty in a broad and liberal way, in keeping with the spirit and intent of the agreements reached

• act as protectors of Aboriginal interests, not adversaries, and reconcile the interests of society as a whole with the terms of the treaties

• recognize that First Nations did not consent to loss of title to their lands or to extinguish all rights to their lands when they signed treaties - a more reasonable interpretation is that they consented to share and co-manage lands and resources

• recognize that by entering into treaties with Aboriginal peoples, the Crown of Canada acknowledged their inherent right of self-government, their right to control their own affairs, and their right to enter into intergovernmental arrangements with other nations

• establish a process for fulfilling and renewing existing treaties, on the basis of these principles

Making New Treaties

In the beginning, colonial and Canadian governments made treaties only with First Nations - and then, only some First Nations. In recent years, Canada has come to a few new treaty-like agreements, including those with

• Inuit and Crees (and later the Naskapi) of James Bay and Northern Quebec (1975 and 1978)

• Inuvialuit (and later Inuit) of the Northwest Territories (1984 and 1993)

• Yukon First Nations (1993)

• the Nisga'a in British Columbia (1996)

But many nations still have no treaty of any kind. We believe that those without a treaty, accord, compact or other agreement clarifying their relationship with Canada have the right to seek one. For its part, Canada has a duty to conclude such treaties.

We propose a new treaty process to lead the way to reconciliation between Aboriginal and non-Aboriginal people over the next 20 years. An agreed treaty process can be the mechanism for implementing virtually all the recommendations in our report - indeed, it may be the only legitimate way to do so.

The main objectives of a new treaty-making process would be to

• establish the full jurisdiction of those nations as part of an Aboriginal order of government

• expand the land and resource base under their control

Canadians may ask why, after so many years of broken promises and dashed hopes, Aboriginal people would put any faith in a new process. We believe that their trust can be rekindled and their participation gained if the new treaty process is given a dramatic foundation in word and deed - in keeping with its stature as a tool of statecraft.

It is self-defeating [for the government] to pursue a policy that
supposes the terms of a claims agreement can be fixed for all time. There
can be no acceptable final definition of the compromises that must be made
between societies over succeeding generations. The conclusion of a modern
claims agreement must be seen as a beginning, not an end.
       Bernadette Makpah
       Nunavut Tunngavik Inc.

To set the stage, we recommend that Parliament declare its support for the treaty relationship in the form of a new Royal Proclamation. By itself, a new proclamation will change nothing; it needs to be backed up by companion legislation setting out guiding principles for the treaty processes and establishing new decision-making bodies, independent of government, to conduct them.

One major piece of companion legislation would be an Aboriginal Treaties Implementation Act with the following provisions:

• It would establish a process for recognized Aboriginal nations to renew existing treaties or negotiate new ones.

• It would set out processes and principles to guide negotiation.

• Its guiding principles would include a commitment to implement existing treaties according to their spirit and intent and to renegotiate treaty terms on which there was no meeting of minds when they were originally set down.

• It would establish regional treaty commissions to convene and manage the negotiation process, with advice from the Aboriginal Lands and Treaties Tribunal on certain issues. To achieve legitimacy, treaty commissions would act at arm's length from government. Their job would not be to determine the outcome of negotiations but to facilitate the process. Each treaty will be the result of a political agreement, freely entered into by all parties and agreed to by their constituencies.

Existing treaties can, should and must be fulfilled, and the treaty relationship should be extended to all Aboriginal nations. If done honestly and fairly, treaty making can restore the form and feeling of partnership in relations between Aboriginal and non-Aboriginal people.

The treaties require some kind of implementing process, some kind of
institutional arrangement that will see that the finer spirit of the
treaties is realized, that the relationship is renewed, and that the
treaties are respected by all who live in the country.
       Tony Hall
       University of Lethbridge
       Lethbridge, Alberta

Canada can afford to do this. Indeed, Canada cannot afford not to do it, for the cost of maintaining Aboriginal people in a state of dependence and social disorganization - measured in human distress, lost productivity and proliferating government programs - is enormous, as we show in Chapter 5.

The Relationship Restructured

In this chapter, we have outlined major steps needed to transform the relationship between Aboriginal people and other Canadians from its present state of tension and failed initiatives to one of co-operation and growing successes. The steps are numerous and may seem daunting. But they are logical, they are progressive, they reinforce each other, and they constitute a workable plan. Let us review them briefly:

1. The federal government should begin the cycle of renewal with an act of national intention - a new Royal Proclamation.

   The Commission is calling for a sharp break with past practices, mired as they are in fallacies about Aboriginal people and their rights, tarnished as they are with failed negotiations and broken promises. We propose a new Royal Proclamation, stating Canada's commitment to principles of mutual recognition, respect, responsibility and sharing in the relationship between original peoples and those who came later.

2. Parliament should enact companion legislation to give these intentions form and meaning and provide the legal instruments needed to implement them.

   Three major pieces of legislation would be needed:

   • an Aboriginal Treaties Implementation Act, setting out a process for clarifying and modernizing existing treaties and making new ones, and establishing regional treaty commissions to facilitate and support the negotiation process

   • an Aboriginal Lands and Treaties Tribunal Act, establishing a body to clear the backlog of specific claims and act as ombudsman for the new comprehensive treaty-making processes

   • an Aboriginal Nations Recognition and Government Act, setting out the process and criteria for recognizing Aboriginal nations, acknowledging, on an interim basis (until treaty negotiations are complete), their jurisdiction over core issues within their existing territories, and providing financing

   These steps should be undertaken in close consultation with national Aboriginal organizations and provincial and territorial governments. While consultations are under way, a public education campaign should be launched to promote understanding on the part of all Canadians.

3. The federal government should provide a forum for negotiating a Canada-wide framework agreement to lay the ground rules for processes to establish the new relationship.

   The forum should be convened under the authority of the first ministers of federal, provincial and territorial governments and leaders of national Aboriginal organizations and should address at least these issues:

   • treaty renewal and new treaty making

   • redistribution of lands and resources

   • clarification of areas of independent and shared jurisdiction

   • redesign of short-term and long-term fiscal arrangements

4. Aboriginal nations should begin their rebuilding processes.

   Aboriginal nations will need time and resources to undertake the nation building that must be completed before they seek formal recognition from Canada. In particular, they must clarify membership issues and develop institutions and human resources for self-government and all it entails.

5. All governments should prepare to enter into the new treaty process.

   After recognition, each Aboriginal nation will need to seek a mandate from its citizens to enter into a treaty renewal or negotiation process. These negotiations will result in the settlement of land, resource, governance and financing issues.

   The federal government will need legislation in place and reorganization of its internal structures, as we have recommended. The provinces will need parallel legislation permitting them to be partners in treaty processes within their boundaries.

6. Governments should take interim steps, as proposed by this Commission, to redistribute lands and resources.

   Canada's wealth must be shared fairly with the original inhabitants of the land. Commitment to Aboriginal self-government will be hollow unless Aboriginal nations have access to an adequate land base, with resources to match. The greatest part of the decision making about redistribution will be done during treaty negotiations. However, we have proposed interim measures to bring short-term relief, and we urge governments to pursue them.

7. Aboriginal and non-Aboriginal governments should co-operate to stimulate economic development.

   Creating meaningful work for the citizens of Aboriginal nations will require long-term strategies to promote a mix of economic activity. The strategies we propose will require co-operation among governments, both before and after the broader processes of change are under way.

Non-Indian governments...did not terminate the treaties. They did not
restrict the treaties. They just forgot about the treaties, and our claim
to the land...
       Chief Albert Levi
       Big Cove First Nation community
       Big Cove, New Brunswick

These steps, taken together, have the potential to bring about fundamental change - in the hearts, minds and life experience of Aboriginal people, who have waited so long for justice, and in Canada as a country of fair-minded people. Each step, and the rationale from which it springs, must be accepted and adopted with determination and good will, by Aboriginal and non-Aboriginal people and their leaders.

It can be done.

But it will not work unless Aboriginal people, in their nations and communities and personal lives, see that it does. To do so, they will need to develop and use their full potential as human beings and as citizens of their nations. This significant challenge is the subject of the next chapter.

Back Last Updated: 2000-06-21