Assimilation and Termination Policy Rears Its Ugly Head

Recent events surrounding the Supreme Court of Canada (SCC) Marshall decision illustrate how the federal government's Aboriginal policy is harmful both to Aboriginal and non-Aboriginal peoples.

On September 17, 1999 the SCC ruled in the Marshall case that the 1760 treaty between the Mi'kmaq and the Crown is still valid and that the Mi'kmaq have a treaty right to fish out of season and without a license in order to earn a moderate living. This decision brought hope, pride and confidence to Mi'kmaq communities suffering from high unemployment and in the process of learning about their history and culture.

Tragically, the federal government's irresponsible response to the SCC decision created a climate of uncertainty and fear which led to an ugly backlash against Aboriginal people. The area around the Mi'kmaq community of Burnt Church, NB, for instance, was the scene of unprecedented vandalism and violence.

The federal government said it was unprepared for the decision. This position is surprising and unbelievable in light of previous SCC rulings on Aboriginal rights.

The 1990 Sparrow decision acknowledged Aboriginals peoples' right to fish for food, social and ceremonial purposes. The 1997 Delgamuukw decision found that Aboriginal peoples rights are protected in full under section 35(1) of the 1982 Constitution Act, which states "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed." The Marshall case itself was initiated in 1993, giving the federal government six years to examine and prepare for the acknowledgement of Mi'kmaq rights to resources in their traditional territory.

It is also inconceivable that the federal government could be unprepared for the Marshall decision so soon after recent court decisions in the Maritimes that addressed Aboriginal rights to forestry. After those decisions, the federal government responded quickly and decisively. Could the fact that huge, influential forestry companies are directly involved - as opposed to individual fishers - have anything to do with how the government responded?

To understand the government's confusing, contradictory and harmful statements and actions in the wake the Marshall decision, it is necessary to examine the current federal Aboriginal policy of assimilation and termination. The Chretien government, despite repeated public commitments to create a new relationship with Aboriginal peoples, continues to unilaterally impose rules on Aboriginal peoples as part of this policy which involves trying to eliminate, severely restrict or alter Aboriginal rights.

The federal government's extinguishment policy makes it almost impossible for Aboriginal people to create and maintain self-sustaining economies and is not conducive to building partnerships with Aboriginal peoples. The policy has been criticized by numerous bodies, including the Royal Commission on Aboriginal Peoples, and has been condemned by the United Nations Human Rights Committee as a violation of internationally recognized human rights.

Ironically, the events in the Maritimes unfolded during the federal government's throne speech where the government committed itself to "focus on improving the living conditions of Aboriginal people and, increasingly, on strengthening their economic opportunities." Clearly, recognizing and acting upon the Mi'kmaqs' rights to fish to earn a livelihood was an opportune moment for the federal government to make good on it's pledge.

Aboriginal and non-Aboriginal peoples in the Maritimes feel that the federal government, the RCMP and the media have let them down. The peaceful co-existence and reconciliation they seek can be achieved only through constructive dialogue and education and only if the federal government is willing to honour and uphold Aboriginal rights.

The AFN National Chief Phil Fontaine said he was particularly concerned about the role some commentators have played in creating a climate of hostility towards First Nations citizens. "First Nations rights are human rights. No-one would question the right of women or other identifiable segments of society to fight against discriminatory practices, yet some commentators are trying to deny the rule of law as upheld by the Supreme Court in such cases as Delgamuukw or Marshall that uphold the inherent, Aboriginal, and treaty rights of First Nations peoples."

The problem is not that the federal government was unprepared for the Marshall decision, but that the federal government is unprepared to recognize Aboriginal rights. Clearly, the government's strategy of stalling to wear down Aboriginal peoples, as in the case of the Delgamuukw and Marshall decisions, is frustrating for Aboriginal peoples who are harvesting natural resources and for non-Natives who feel threatened by what appears to be a situation of anarchy. This divisive strategy creates a lack of confidence in Canadian institutions and breeds contempt for the law.

The federal government must recognize Aboriginal rights to resources in order to make Aboriginal economic self-sufficiency a realistic option. Aboriginal initiatives, such as the maritime Aboriginal fishery, which are based on rights recognized by the Supreme Court and affirmed in the Canadian Constitution, will not succeed as long as the government adheres to its extinguishment policy and refuses to engage in negotiations with First Nations.

The federal government must also immediately invest time and energy to educate non-Aboriginal Canadians about the true history of Aboriginal peoples in Canada. An uneducated public may be an objective for those who want to see Aboriginal peoples in Canada stripped of their rights and assimilated into the mainstream society, but the reality is that it invariably leads to a backlash whenever Aboriginal rights and issues become prominent. Currently, the backlash is most acute in the Maritimes but the potential for conflict and racist incidents exists across the country.

Supreme Court of Canada Marshall DecisionOn September 17, the Supreme Court of Canada acquitted Donald Marshall Jr. of three charges relating to federal fishing regulations: selling eels without a license, fishing out of season and using illegal nets.Following are excerpts from the decision:

Donald Marshall Jr. "caught and sold the eels to support himself and his wife. Accordingly, the closed season and the imposition of a discretionary licensing system would, if enforced, interfere with the appelant's treaty right to fish for trading purposes, and the ban on sales would, if enforced, infringe his right to trade for sustenance."

"[The SCC] would allow this appeal [acquittal] because nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship."

The key question in the Marshall case was what the 1760 treaty means today. According to the SCC, the treaty gave the Mi'kmaqs the right to trade products of their hunting, fishing and gathering for "necessaries." The court interpreted this to mean the right to trade fish and wildlife resources for a "moderate" livelihood. The SCC decision stated that it was recognizing a "treaty" trading right.

"The treaties were entered into in a period where the British were attempting to expand and secure their control over their northern possessions. The subtext of the Mi'kmaq treaties was reconciliation and mutual advantage."

The SCC accepted Mi'kmaq Donald Marshall Jr's argument that the treaties gave him the right to fish for a living even if it meant disregarding federal regulations. Justice Ian Binnie said the treaty referred specifically to the Mi'kmaq bringing fish and wildlife to "truckhouses" to exchange for other goods, but that other documents and oral history show much more was at stake.

"Such an overly deferential attitude to the treaty document was inconsistent with a proper recognition of the difficulties of proof confronted by Aboriginal people."

"If the law is prepared to supply the deficiencies of written contracts prepared by sophisticated parties and their legal advisors in order to produce a sensible result that accords with the intent of both parties - though unexpressed - the law cannot ask less of the honour and dignity of the Crown in its dealings with the First Nations."

Statements by the Assembly of First Nations

The right to fish was not created by the Supreme Court decision nor did that decision create the difficult and confrontational situation existing today on the east coast fishery. Rather, today's issue results from the continuing systemic discrimination faced by First Nations people in every region in Canada and the inaction of successive Canadian governments to negotiate equitable access to the natural resources reserved to First Nations in the historic treaties and by aboriginal title.

The Royal Commission on Aboriginal Peoples identified a number of steps and policies required to properly implement the partnership of First Nations people and other Canadians with honour, dignity and for the benefit of all. The Canadian government, and its provincial counterparts, have been reluctant to move in a timely fashion on the implementation of its recommendations.

Instead, in too many cases, the Government of Canada has committed financial resources to engaging in adversarial activities with First Nations rather than on establishing processes, negotiating opportunities and mechanisms for dialogue with which to promote harmony and equity.

Because of that, First Nations have been required to take their claims and legitimate needs to the Canadian courts for resolution. The courts have felt compelled, as they must, to defend and articulate the inherent aboriginal and treaty rights, and aboriginal title, which are the very foundations of Canada.

The Marshall decision represents yet another example of an issue better resolved by early, timely and honest negotiation rather than adversarial positioning. First Nations stand ready, always, to discuss and negotiate in a reasonable fashion. They invite the other governments of Canada to do the same.

Passamaquoddy came together to sign a protocol agreement committing to make conservation a first priority for the Aboriginal fishery. The policy foundation also specifies a commitment to education and peaceful co-existence with Canadians.

Policy Foundation

Mi'kmaq/Maliseet people will exercise control of all fisheries resources within traditional tribal territories

Any fisheries policy must protect and promote fishing rights recognised within relevant treaties and laws.

Mi'kmaq and Maliseet leaders will not enter into fishing agreements that appear to abrogate or derogate from Treaty or Aboriginal rights recognised in applicable treaties or are protected by law. Such treaties and laws express Mi'kmaq and Maliseet responsibilities and intentions to assert full control over all fisheries resources within traditional tribal territories.

This core sense of responsibility of the Mi'kmaq and Maliseet people defines fish conservation as the management of efficient human use of natural resources so as to yield sustainable benefits to the habitat, and present and future generations. Use means any activity involving fish that benefits Mi'kmaq and Maliseet people, the habitat and other living things. Sustainable use means use of fish and ecosystems at minimal rates and, traditionally, at one-third their capacity for renewal.

Chronology of Irresponsibility

How not to respond to a SCC Decision on Aboriginal rights

Soon after the decision, the federal government considered asking the Supreme Court to suspend the Marshall decision.

On September 20, East Coast fishermen urged federal officials to move quickly to avoid potential conflicts between Aboriginal and non-Aboriginal people. Federal Fisheries Minister Herb Dhaliwal's responded by encouraging fishery workers "to show good will and exercise patience and restraint" while officials in his department studied how the SCC decision fit into fishery management plans.

Two weeks later, on October 3, hundreds of non-Aboriginal fishers ran out of patience, took the law into their own hands and destroyed more than 3000 lobster traps belonging to Aboriginal fishers near Burnt Church, N.B. while RCMP and Department of Fisheries officials looked on. Other non-Aboriginal fishers vandalized processing plants.

On October 4 Prime Minister Chretien said the government was still considering asking the SCC to suspend the decision. "The lawyers are looking at the possibility of asking the Supreme Court to stay the judgement for some time." But, as soon as news of this position got out, the Prime Minister's Office said the preferred option was a negotiated solution.

On October 6, in an attempt to end the violence that accompanied the creation of an Aboriginal fishery, Chiefs from 35 Maritime communities agreed to ask their fishers to stop fishing for thirty days, beginning on October 9. The Chiefs also agreed to work on long-term agreements with the federal government to implement their fishing rights. All but two communities - Burnt Church and Indian Brook - agreed to the voluntary thirty day moratorium.

On October 10, Canadian Fisheries Minister Herb Dhaliwal imposed lobster catch size and fishing gear restrictions on Aboriginal fishers and limited the number of traps fishers from Burnt Church and Indian Brook could put in the water. These restrictions were meant to diffuse tensions, according to Mr. Dhaliwal.

Not surprisingly, however, Minister Dhaliwal's statements had the opposite effect. On October 14 Aboriginal Chiefs responded by reversing their earlier decision and called off their voluntary 30-day moratorium on lobster fishing. The Chiefs said that Aboriginal people, not the federal government, should regulate their fishery. In a public statement, the Atlantic Policy Conference of First Nations Chiefs said "We fully support the decisions our people make regarding their rights to fish, hunt and gather."

WHAT ARE TREATY RIGHTS?

Some Canadians believe that treaties are long-ago things that are no longer relevant. The Royal Commission on Aboriginal Peoples, however, reported that Aboriginal leaders without exception called for a treaty implementation and renewal process.

Long before the arrival of Europeans, Turtle Island (North America) was home to millions of Indigenous Peoples, who lived in thousands of distinct societies with their own laws, customs and economies. Land was integral to their economic, social and spiritual well-being.

As Sharon Venne, Professor of Native Law program at the University of Saskatchewan and PhD candidate in International Law and Indigenous Issues at the University of Alberta, explains "Indigenous Nations have their own legal systems and political accords for entering into and concluding Treaties. Treaty-making among Indigenous Peoples has a long history: prior to the arrival of non-Indigenous Peoples to the Americas, Indigenous Nations were making treaties among themselves. An oral tradition, Treaty-making was a means to create peace and friendship, to cement alliances between and among Nations, sometimes against other nations.

"When European governments needed to legitimate their settlement of the Americas, they engaged in the diplomatic process of negotiating legal arrangements with Indigenous Nations to make Treaties. It is a simple fact that the Indigenous peoples of the Americas owned and occupied their territories at the time of contact. When Indigenous Peoples entered into Treaties with the British Crown, they signed as independent nations and not as subjects of the British Crown; had the British Crown perceived Indigenous Peoples as subjects, the making of Treaties as between nations would not have been necessary."

The original Treaties, those which predated Confederation, such as the 1760 Peace and Friendship Treaty signed between the Mi'kmaq, Maliseet and Passamaquoddy and the British Crown, were clearly international agreements between sovereign peoples. This international character of treaties has never been denied by the Canadian court system. The Supreme Court of Canada has ruled that the provision within section 35(1) "did not create aboriginal rights; rather, it accorded constitutional status to those rights which were existing." In other words, Aboriginal rights and treaty rights are not something that can be granted to Aboriginal peoples from Canadians but are based on historical factors.

When we talk of Aboriginal land and treaty rights, these are based on the concept of Nation, that is to say a people living in a specific territory and having a common history, ancestry, language, culture, etc. It is a mistake to deny that non-European peoples possess their proper history and to use "race" theories (that originate from Europe) to discredit the legitimacy of Aboriginal peoples' rights.

Aboriginal inherent rights are the base points from which all treaty negotiations take place, and the measure by which compromises are made. These include the right to use the land and the natural resources, to maintain their own languages, cultures, social systems and governments.

Treaty-making is the appropriate starting place for resolving conflicts between Indigenous nations and the successor-state in ways that are peaceful and meaningful for both parties, in the spirit and intent of the original Treaty-making.