copy the linklink copied!Chapter 1. Overview of Indigenous governance in Canada: Evolving relations and key issues and debates

Evolving jurisprudence

Jurisdiction over Indigenous affairs

The great divide among Indigenous people in Canada is between those who fall under the Indian Act and those who do not, but there is nothing simple about how this divide has worked out in practice. First Nation citizens who are governed under the Indian Act and reside on reserve fall under federal jurisdiction for healthcare, education and many forms of social provision that are for the rest of the population a matter of provincial responsibility. Their reserve lands and collective wealth are under federal control, managed “in trust” –unless they have taken advantage of certain federal programs that provide for a degree of independent economic management and funding arrangements (discussed below). Despite the dominant role of the federal government, Section 88 of the Indian Act provides that provincial laws of general application apply to individuals who are governed under the Indian Act.

Negotiation of a modern treaty removes the First Nations parties from Indian Act jurisdiction, but they remain a federal responsibility under Section 91(24) of the Constitution Act. The modern treaties also create a number of government-to-government relationships with relevant provincial and territorial governments.

As noted above, since the Supreme Court of Canada reference in 1939, Inuit have fallen under federal jurisdiction; there is therefore, for example, a First Nations and Inuit Health Branch to dispense funding and develop programs. Inuit have never been governed under the Indian Act, however, and there has been no equivalent piece of legislation for them. Furthermore, with the settlement of comprehensive land claim agreements (otherwise known as modern treaties, discussed elsewhere in this report), different arrangements have been made for social provision for Inuit. Each comprehensive land claim agreement or modern treaty includes specific arrangements for the funding and delivery of social services, for land management and for other governance functions.

Métis have never been subject to the Indian Act. For health, education and social provision they are served in similar fashion to the general population, though there are now many federal programs (in employment and business development for example) for which they are eligible as Indigenous people.

Actors, roles and responsibilities: A complex field

Original Mutual Recognition: The Royal Proclamation and the Treaty at Niagara

The 1763 Treaty of Paris that ended of the Seven Years War resolved the future European presence in North America. It left almost all formerly French territories in British hands and confirmed British (and in the south west, Spanish) control of the continent. The disposition of these lands was addressed in George III’s Royal Proclamation of 1763, which set the terms of governance for the French-speaking colonies that had come under British rule, provided substantial North American land grants to soldiers, and took a number of measures designed to control further westward movement of settlement into Indigenous lands. Specifically, the Indigenous nations west of the continental divide were declared to be under Crown protection and the right to make treaty with them was reserved to the British Crown. This provision likely added to grievances held in the Thirteen Colonies, which began a successful war of secession in 1776. Thus, the end of the eighteenth century found most of present-day Canada assigned to British imperial aspirations, and relations with Indigenous nations and peoples a matter of British Crown policy. To the south, there was a restive, frequently hostile neighbour.

Many, but not all, of the Indigenous nations who were most directly affected by the land and diplomatic arrangements in the Royal Proclamation convened a great meeting of about 2 000 chiefs from 24 nations at Fort Niagara in 1764. In the face of the shifting military balance among European powers, the Indigenous nations reached agreement among themselves and negotiated a treaty with the British superintendent of Indian Affairs, William Johnson. They ratified the terms of the Royal Proclamation and knit Great Britain into the web of alliances and diplomatic arrangements that had long governed relations among Indigenous nations. These included, in eastern North America, the Silver Covenant Chain, which stood for the system of alliances designed to preserve the peace and regulate the sharing of land. Thus, the Treaty at Niagara was supposed to be honoured by new settlers moving into territories claimed by Britain, which would become Canada.

Indigenous Diplomacy: Indigenous Diplomacy: Treaties Signed Between 1701 and 1923

Conventionally, treaties between European powers and Indigenous nations in northern North America are grouped temporally: historic treaties (1701-1923) and the modern treaties (1975-present). Treaties concluded prior to 1867 were to establish and renew peaceful relations, defend the colonies and open the lands of the Great Lakes to settlement. After Confederation, treaties were concluded to secure Canada’s title over the West, open the lands for settlement and secure peaceful relations with First Nations. Aside from some adhesions (a mechanism for groups to sign on to existing treaties) there were no further land negotiations until the 1970s. When negotiations over land were halted by the Dominion government in the 1920s, there were almost no treaties in British Columbia, and none in present day Nunavut and Yukon Territory.

As settlement of North America proceeded and Indigenous nations were weakened by disease and loss of the natural resources upon which they depended, federal legislation (the Indian Act) and administrative control replaced diplomacy and interdependence. Indigenous parties to the treaties did not abandon their original purposes and understanding of the treaties, but for decades they had scant capacity to insist that they be appropriately recognised, respected and implemented.

The Indian Act

By the time the last numbered treaties were being negotiated, most of southern Canada was occupied and linked together by a transcontinental railway. Provincial governments had been assigned jurisdiction over “Crown land” under the British North America Act (BNAA)21 that established Canada. Crown land refers to public land – that is, all land not already in private hands.22 From another perspective, most of the so-called Crown land is Indigenous land, since Canada was fully occupied when European claims were made.

Despite the treaty provision that the Indigenous parties should enjoy the use of their entire traditional territory in perpetuity, provinces enthusiastically promoted development on these lands. The BNAA assigned jurisdiction over “Indians and lands reserved for the Indians” to the Dominion government. The Dominion government established a system of reserves, small tracts of land to which the Indigenous parties were confined. The Indian Act, passed in 1869 and consolidating prior British legislation, became an instrument of control and forced social transformation. The Act and attendant federal policies undermined the capacity of Indigenous governments by banning long-standing Indigenous governance practices, forcing Indigenous people to live in small, isolated communities, enforcing accountability “out” to the executive branch of the federal government, imposing direct control by a resident Indian agent and later control through onerous accountability mechanisms. These same provisions also created a federal Indigenous Affairs bureaucracy that is oriented to control, oversight and enforcement.23 The Indian Act assigned control over reserve land and reserve economic development to the federal executive branch, effectively to public servants. For many years, this control was very heavy handed: Indians were not allowed to leave the reserve to work without a pass from the Indian agent, nor could reserve residents undertake other economic ventures (such as selling their produce or renting their pastures) without this person’s permission. Political activity was equally controlling –the rules of Band government were enforced, including such measures as biannual elections of Chief and Council. After 1927 Indians were prohibited from raising funds for the purposes of self-representation, and they did not have the right to vote in federal elections until 1960.

Indigenous Resistance and the New Era of Treaty-making

Over decades, Indigenous peoples’ resistance to their lack of democratic control and the loss of their traditional land eventually brought about constitutional and legal change. Indigenous pressure that treaties be respected and their traditional land rights recognised never ceased, but it was given new momentum after the Second World War. Indigenous veterans, who had served in much greater proportion than their numbers in the general population, returned to inequality. In some cases, their homes had literally been appropriated under the War Measures Act to serve military purposes, while Status Indians returned to unequal legal status. They began to organise. They were part of a global mobilisation of resistance to such discrimination and unequal treatment, resulting in Indigenous rights movements in all of the settler Dominions, the struggle against apartheid in South Africa, and the United States civil rights and Indian rights movements, to mention just a few. At the same time, a wave of revulsion against ethnically based legal and illegal discrimination passed through all of the Second World War combatant countries, creating a much more receptive environment for change. In Canada, one consequence was the first important revision of the Indian Act in decades. The most discriminatory provisions were removed in 1951, including the prohibition against fund-raising for the purposes of political self-representation. These changes liberated even more energy, so that through the 1950s and 1960s, Status Indians and ultimately non-Status, Métis and Inuit also, began to form organisations to fight for recognition of their land rights and more control over the terms of their lives as Canadians (or as some might prefer, Indigenous Peoples living in Canada).

Two federal initiatives of the 1960s had a powerful impact on the Indigenous movement.24 In 1965, the federal government commissioned University of British Columbia professor Harry Hawthorn to lead a task force to investigate Indian conditions in Canada. After research and Canada-wide discussion with Status Indian leaders, the task force reported, proposing the concept of ‘Citizens Plus’ to express the view that Status Indians should have all the rights and responsibilities of other Canadian citizens while they also held special rights arising from treaties. The Hawthorn report was generally favourably received by Indian leaders –but it was apparently ignored by the new Liberal government elected in 1968 led by Pierre Trudeau. As is well known, Trudeau was an anti-nationalist and opposed “special rights” based on ethnicity. Within a year, his government produced a White Paper (that is, a discussion paper), the Statement on Indian Policy, that proposed a different vision.25 The White Paper asserted strongly that Status Indians should have full citizenship rights and responsibilities, but no special rights, and it envisioned the orderly phasing out of both treaty provisions and special federal responsibilities. The reaction from Status Indians people was immediate, and almost entirely negative. They insisted upon respect for the treaties and for their special relationship to the Crown (represented by the federal government), and rejected any unilateral actions by the federal government to alter the relationship (Cardinal, 1969[5]).26

While the White Paper, coming on the heels of the more acceptable analysis in Hawthorn Task Force Report, was a catalyst for mobilisation, it was not the source. The struggle for respect for treaty rights had begun in the 1950s. In addition, there were other concerns. The integration of the Canadian and United States economies during the Second World War continued into the post-war years, with Canadian water, hydroelectric power, lumber and mineral resources in high demand. Most of these resources were found in the mid-North, on Indigenous lands previously undisturbed by industrial capitalism. In northern Quebec and the Mackenzie Valley in the late 1960s, and subsequently in other parts of the north, Indigenous people mobilised to secure land rights and to gain some control over the pace and direction of northern development.

Thus, Indigenous people across the country were well-organised and mobilised by the late 1970s, when the Trudeau government began to discuss the patriation of the Canadian constitution. Ultimately, the Indigenous organisations and their allies in the New Democratic Party were successful in entrenching “existing aboriginal and treaty rights” (Sec. 35) in the Constitution Act (1982), and introducing some other protective provisions. Section 35 of the Constitution Act states that:

• The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed.

• In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

Furthermore, Section 25 of the Act notes that: "guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognised by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired".

Despite inclusion of existing aboriginal and treaty rights (Sec. 35) in the Constitution Act (1982), the substantial meaning of the phrase "hereby recognised and affirmed" could not be reached, the drafters provided for a series of First Ministers Conferences to follow patriation (Sec. 37). These concluded in 1987 with no agreement. A final attempt to specify the meaning of Sec. 35 was made during the negotiation of what came to be called the Charlottetown Accord, an omnibus effort to deal with a number of outstanding constitutional issues. The Charlottetown Accord was defeated in a national referendum in 1992, ending over a decade of popular mobilisation and elite accommodation on matters constitutional.

As no political resolution to the meaning of Sec. 35 was achieved, it has fallen to the courts to interpret these provisions, aided by an active cohort of specialist constitutional lawyers and by the work of the Royal Commission on Aboriginal Peoples.

The Royal Commission on Aboriginal Peoples and the Reconciliation Agenda

The Royal Commission on Aboriginal Peoples was appointed in 1991 in the aftermath of the failure of the post-1982 constitutional conferences, and the outbreak in 1990 of serious conflict over the use of Indigenous lands at Kanesatake (Oka, Quebec) (York and Pindera, 1991[6]).

An inquiry of unprecedented scope, the Commission published a number of interim studies, and a five volume final report that offers a reinterpretation of Canadian history with Indigenous relations at the centre, and recommendations covering virtually every outstanding issue in that relationship –from health to veteran’s affairs to land rights and treaties. The Commission envisioned a new relationship between Indigenous nations and peoples and the Crown and Canadian governments, captured in the phrase ‘nation-to-nation’. By this the Commission meant a relationship characterised by mutual recognition, mutual respect, sharing, and mutual responsibility. “Aboriginal governments” were understood to be one of three orders of government in the federation.

The federal response to the Royal Commission came in early 1998. Gathering Strength: Canada’s Aboriginal Action Plan avoided using the term nation-to-nation, preferring to speak of “partnership” among Aboriginal people, other levels of government, and the private sector. Other sections of Gathering Strength affirm the inherent right of self-government, the treaty relationship, and the importance of recognizing “Aboriginal governments” but avoided explicit recognition of original Indigenous sovereignty. A Statement of Reconciliation endorsed the version of Canadian history put forth by the Commission and acknowledged the harm that had been done by Indian Residential Schools. Ultimately, after legal action by the Assembly of First Nations and more negotiation, a formal apology was issued, a compensation program was rolled out, and the Truth and Reconciliation Commission (TRC) was struck, reporting in 2015.

The TRC offered an opportunity to the hundreds of people who were directly and intergenerationally affected by the residential school system and the abuses there to speak of the harm that was done to them. It exposed this history to the general Canadian public, and in issuing 93 calls to action, galvanised many segments of Canadian society - as well as governments and public institutions - into action. This process continues.

Another watershed moment occurred in 2015 when the newly elected Trudeau government committed to progress in Indigenous affairs. This was followed by a number of actions, beginning with the inclusion of the following sentence in all Ministerial mandate letters:

In May 2016, Canada announced its full support, without qualification, of the United Nations Declaration on the Rights of Indigenous Peoples. In April 2017 Canada formally retracted its concerns regarding paragraphs 3 and 20 on the 2014 Outcome Document from the World Conference on Indigenous Peoples.

copy the linklink copied!

Box 1.2. Reconciliation—a Canadian project moving from words to actions: What will it take to implement?

Prime Minister Justin Trudeau’s government mandate letters and 2015 speech to the Assembly of First Nations Special Chiefs Assembly marked a change in tone and signified a new era that has the potential to transform its relationship with Indigenous peoples.

As noted by Newhouse (2016[4]), the story of Indigenous peoples is predominately told through the lens of colonisation: the historical period from the Gradual Civilization Act of 1857, which encouraged Indians to assimilate into Canadian society through the process of enfranchisement and adoption of European values, to the withdrawal of the much-criticised White Paper Statement of Indian Policy in 1971. Throughout this period, public policy-makers saw Indigenous peoples as a ‘problem’. As a result, Indigenous people endured more than a century of assault on their lands, economies, cultural practices, knowledge and identities.

Reconciliation has become the public policy focus for addressing the impact of this legacy. It consists of remedial efforts designed to close quality-of-life gaps and improve the relationship between Indigenous and other peoples within Canada and governance actions intended to bring Indigenous peoples and their institutions into the structures and processes established for Canada. Part of this undertaking is a critical examination of Canada itself, and this requires an understanding of the political goals of Indigenous peoples.

A large number of governments, agencies and organisations are now taking steps to address particular calls to action within their mandates. Indigenous peoples had little or no influence upon the public policies that animated the ‘Long Assault’ (the period between 1857 and 1971). While Indigenous peoples expect to have significant influence over the policies that will lead to a reconciled Canada, it would be unfair to place the burden of reconciliation upon them. Those who lead Canada’s public institutions need to spearhead the reconciliation effort and work to expand support for change within Canadian society as a whole.

copy the linklink copied!

Figure 1.1. The four aspects of reconciliation as envisioned by Indigenous leaders

Source: Newhouse, D. (2016[4]), “Indigenous peoples, Canada and the possibility of reconciliation”, http://irpp.org/research-studies/insight-no11/ (accessed on 13 December 2018).

These are important changes in direction from political leadership. There have also been some important institutional changes. In August 2017, the federal government announced the dissolution of the old Department of Indian Affairs and Northern Development, and the creation of two new ministries explicitly modelled on a recommendation of the Royal Commission on Aboriginal Peoples. The Department of Crown-Indigenous Relations and Northern Affairs will have responsibility for whole-of-government coordination and creation of the new relationship between federal authorities and Indigenous peoples (“nation-to-nation, Inuit-Crown, and government-to-government”). The second ministry, of Indigenous Services, will be given responsibility for improved service delivery and eventual transfer of service delivery to self-governing Indigenous authorities.

Getting out from under the Indian Act

The Indian Act has no defenders. It is widely recognised that the lineaments of the unjust period of colonialism are baked into every section and clause. The Indian Act was an instrument of containment and control, aiming at the extinction of Indigenous peoples as peoples, and is irredeemable.

Yet repeated attempts to abolish the Indian Act have met with resistance from First Nations. There are a number of reasons for this. First, and probably most importantly, First Nations’ history of relations with state institutions has given them little reason to be optimistic about a radical change to their legal condition designed and imposed from outside. Changes will have to be led by the people they will affect. Second, for First Nation people as for other Canadians, the most proximate order of government is the most visible and the most important. The Indian Act has structured political life on reserves for seven or eight generations. It is familiar. Third, the Act has long embodied First Nations’ relationships with federal institutions, so that it has become associated with treaty rights, security of land tenure on reserves, and the federal fiduciary responsibility. If it is abolished, what will happen to these? Finally, there is the matter of building an alternative constitution. While in most places traditional political institutions and values have survived, they have been pushed aside or driven underground. Even if the prohibitions on traditional governance practices have been expunged from the Indian Act and federal policy, it is challenging to understand how they might be built and adapted into a modern government capable of interaction with other orders.

Beyond several unsuccessful (and well-intended) efforts by federal leaders to unilaterally abolish the Indian Act,27 there have been a number of efforts over the years to establish “paths” for First Nation governments to follow as they work their way out from under the Indian Act. These include the 1996 Framework Agreement on First Nation Land Management ratified by the 1999 First Nations Land Management Act (FNLMA), which delegates certain land management responsibilities under the Indian Act to Band Councils, which eliminates the need to seek Ministerial approval on lands-related decisions. The 2006 First Nations Fiscal Management Act (FNFMA) provides a legislative and institutional framework allowing Fist Nations to exercise jurisdiction over core government functions and supports their socio-economic development goals. This Act established three institutions:

• The First Nations Financial Management Board supports Indigenous governments to implement financial administration laws for good governance and sound financial management.

• The First Nations Tax Commission advances Indigenous taxation, including property taxation and local revenues generation.

• The First Nations Finance Authority enables Indigenous governments to access capital through the bond market at rates comparable to other levels of government.

There has been some interest in both paths. Out of a total of 619 First Nations recognised by the Government of Canada, 84 operate under the Framework Agreement on First Nation Land Management and the FNLMA and 54 are actively working towards this. Under the FNFMA: 282 First Nations have opted in and 125 First Nations are collecting property tax generating over $66 million annually.

Since 1995, a third path has existed –the negotiation of self-government agreements. These now exist in great variety, not all of which have been negotiated by First Nation governments.28 There are 26 Comprehensive Land Claim agreements and four standalone Self-Government agreements.29 Of the 26 Comprehensive Land Claim Agreements, 18 include Self-Government provisions or have accompanying Self-Government Agreements. The self-government agreements that have been negotiated to date are relatively few in number, and they are extremely heterogeneous. Some self-government agreements are explicitly recognised as treaties under Section 35 of the Constitution Act (Deline Agreement), while others are explicitly excluded (Sioux Valley Dakota). Some are government-to-government agreements intended to provide a vehicle for an Indian Act administration to work out from under the Indian Act, while others complement existing comprehensive claims agreements (that have supplanted the Indian Act) with government-to-government arrangements. The Tlicho Agreement concluded in 2005 includes both land and governance provisions in one document –that is, it is both a comprehensive land claim agreement and a self-government agreement. At the other extreme, there are sectoral self-government agreements. For example, under the Mi’kmaq Education Partnership, the members of Mi’kmaw Kina’matnewey (a coalition of twelve First Nations) control and deliver education to their citizens. Similarly, the Anishnabek Nation (Union of Ontario Indians) has the Anishinabek Educational Institute.

None of three ‘paths’ (the FNLMA, the FNFMA, the Inherent Right to Self-Government policy) represent in themselves a radical break with the Indian Act, but they do create a somewhat different opportunity structure for the many First Nations who choose to begin to move out from under the Indian Act. A fourth path can also be considered. One that includes First Nations-directed and/or led solutions for all new legislation affecting First Nations (e.g., the proposed Safe Drinking Water for First Nations Act), further supported by permanent bi-lateral mechanisms between the Government of Canada and First Nations, Inuit and Métis Nation leaders as well as joint Canada-Indigenous working groups.

Independent of government policy initiatives, there is a growing grassroots movement for internal development and change towards self-government. This movement is rarely covered in news reporting and can be difficult to spot from a distance, but it is Canada-wide. Indigenous organisations working in this field include the Centre for First Nations Governance, a corps of Indigenous researchers and community developers who have been working with First Nations on governance issues for nearly twenty years, the Indigenous Leadership Development Institute which offers a curriculum of professional development courses to First Nation and other Indigenous organisations, and the newly formed think tank, the Yellowhead Institute at Ryerson University.30 Putting these developments together with the expansion of university programs in the fields of Indigenous studies and Indigenous governance and the growing cohort of Indigenous students, it seems likely that grassroots movements to displace the Indian Act and to build healthy community governance practices rooted in recovered Indigenous traditions and language will grow.

An outstanding question remains: by what means and on what schedule will the efforts to transform the federal administration of Indigenous affairs keep pace with both the current political direction from above, and the pressures for change from First Nation communities? To date, none of the top-down initiatives to supersede the Indian Act have gone very far, in part for the reasons mentioned above, but also because they have not broken with the ethos of central control, a conditioned response that is buttressed by the doctrine of ministerial responsibility. Until Ministers of the Crown replace this responsibility with practical nation-to-nation and government-to-government relations, the spirit of the Indian Act will animate administrative behaviour.

Conflicts over land and land management

Land, and sovereignty over land, is at the heart of the relationship between Indigenous peoples and the Crown (see Chapter 3 for in-depth discussion). Indigenous peoples, and initially the Crown, used treaties to establish appropriate diplomatic relationships and to agree upon a protocol for sharing use of the land. As is well known, many provisions of the treaties were not respected, particularly the provisions concerning shared land, and particularly by the provincial governments whose constitutional reliance upon “Crown land” for revenue provided an incentive to ignore treaty rights. Provincial governments have generally taken the position that whatever the wording of the treaty, all lands except the small portion of Indigenous peoples’ traditional territory allocated for a reserve, are to be seen as Crown lands (or waters) and are open to provincial disposition.31 It seems likely that recent Supreme Court of Canada decisions will be undermining this position (see Tsilhqot’in decision discussed above) but this process is just beginning. Of as yet unknown impact is the legislation currently before Parliament that will require that all Canadian laws be brought into harmony with the UNDRIP. In this discussion, Article 21 is pertinent:

• Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

• States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources.

• States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

These provisions are in line with the trend in Canadian jurisprudence, but there are still many outstanding matters of implementation. And while these matters are forward-looking, there remains a need to redress errors of the past.

Since 1973, these actions and federal treaty violations have been subject to review through the specific claims process. The specific claims process addresses “claims made by a First Nation against the federal government which relate to the administration of land and other First Nation assets and to the fulfilment of Indian treaties, although the treaties themselves are not open to renegotiation” (Office of the Auditor General of Canada, 2016[7]).

The modern treaties that have been negotiated since 1975 have provisions that make them less likely to be disregarded. Each modern treaty is detailed and specific, and each is given effect by complementary legislation. It is accepted that the treaty must be respected by both orders and all branches of government, though this has not always been done.

The modern treaties set up procedures for decisions about land use, by specifying the degree of control each signatory has over categories of land in the Indigenous nation’s traditional territory, and frequently through a system of co-management boards, appointed jointly by the Indigenous parties to the treaty and the relevant other orders of government. Self-government agreements also contain environmental chapters, which bestow Indigenous governments with the responsibility to create environmental protection laws, which can encompass pollution, waste management, water quality, air quality, etc. In addition to treaty land management, national parks are also created pursuant to modern treaties and provide another example of effective co-management.

Such measures do not eliminate conflict but they do provide regularised means for resolving it.32 An example of such boards is the Nunavut Impact Review Board, established under the Nunavut Agreement to review and make recommendations concerning all major development projects proposed for Nunavut. Another with a more specific focus is the Porcupine Caribou Management Board, with specific responsibility to oversee the protection of this herd. There are similar boards in Labrador, Northwest Territories and Yukon. Development proposals which involve interprovincial impact may also be considered by the federal environmental assessment panels, and the National Energy Board. Federal procedures are being revised currently as Bill C-69 moves through Parliament. Land use conflicts also arise between municipal governments and neighbouring Indigenous nations. There are far fewer mechanisms for resolving these peacefully.33 The 1990 armed confrontation at Kanesatake/Oka mentioned earlier was prompted by a municipal government’s interest in constructing a golf course in Mohawk traditional territory and the standoff at Caledonia Ontario over the construction of a subdivision on Haudenosaunee lands are just two examples (York and Pindera, 1991[6]; DeVries, 2011[8]).

Sometimes conflict over land use is primarily a matter of property rights, as in the 1995 Ipperwash Crisis, where members of the Stoney Point Ojibway Band sought to regain lands that had been appropriated from their reserve during the Second World War under the War Measures Act. Instead of being returned after the war, the reserve land was converted to a provincial park. After a prolonged standoff, the shooting death of one of the protesters, and a public inquiry, the land was returned to the Stoney Point Band in 2016.

Conflicts over land and land management are also apparent where the rights of hereditary chiefs are not considered in developments on their traditional land. A present example of this conflict the case of the Gidimt’en of the Wet’suwet’en hereditary chiefs and the construction of the Coastal GasLink pipeline in British Columbia. It is the position of TransLink Canada – owners of the Coastal gas pipeline – the Impact Benefit Agreement that they have signed with the elected Wet’suwet’en band council permits them to proceed with the construction of the pipeline across Wet’suwet’en traditional territories. While bands derive their authority from the Indian Act, and were originally created as a means for Canadian authorities to better control Indigenous communities, Wet’suwet’en hereditary authority is embodied in titles passed down through generations and from the distinct relationship between a clan and its territories (McCreary, Tyler; Budhwa, 2019[9]). A 1980s court case on the territorial-rights of Wet’suwet’en hereditary chiefs and their Gitxsan neighbours that eventually rose to the Supreme Court of Canada established that the Tribe’s territorial sovereignty, pending proof of surrender, by treaty, is legitimate.34 However, the provincial government continues to assert the rights to natural resources development across these lands wherein provincial environmental assessments can proceed absent the consent of the hereditary chiefs.

On many other occasions, though, debates over land use and resource management lead into a debate about capitalism and its impact on Indigenous communities. Capitalism is of course a global system, encompassing us all and affecting how every person on the planet makes a living and makes a life. Many Indigenous communities in Canada, though, retain a social memory of other ways of being, and in northern and rural communities, retain also the capacity to make a living more loosely articulated to capitalist relations than is possible for most urban dwellers. The desire to continue to live partly by harvesting (hunting, fishing, gathering) is manifest in human behaviour, and in provisions for resource management and access to lands that are negotiated in modern treaties. In northern Canada, the trade-off between jobs related to resource development and protection of the lands is a sharp one that has been played out in every public hearing on development projects since the Berger Inquiry of the 1970s. The Inquiry report’s title, Northern Frontier, Northern Homeland, says it all.35 The same issues are at play in current debates about the Kinder-Morgan Pipeline expansion, through Indigenous lands, from the Alberta oil sands to the Pacific coast.

Indigenous Knowledge and Economic Development Decision-Making

The roughly synonymous terms Indigenous knowledge, Indigenous environmental knowledge, traditional knowledge, and traditional environmental knowledge have come into common usage over the last four decades, surfacing in debates over the opening of Indigenous lands to non-renewable resource development. The terms generally refer to human understanding (facts, generalisations, theories and explanations) that is particular to and arises from a nation or people’s history, language, economic, political and social practices, and culture. Much Indigenous knowledge is in principle intercultural communicable, but may not be entirely accessible to those who do not speak the appropriate language.

While this definition seems clear enough, in fact the term Indigenous knowledge is used in different senses and for different purposes.36 In practice, the term can refer to a distinctive political and social perspective and set of interests, rooted in shared history. In this meaning of the term, what is referred to as a people’s shared way of understanding human life, identifying problems and approaching social resolution. This shared understanding arises naturally as people live together in society over many generations, and when confronted by a similar challenge from outside, they will tend to defend their interests or respond to opportunities in similar (but surely not identical) ways. This is the kind of knowledge that is tapped in many forms of citizen consultation and public participation –in regulatory hearings, for example.

On the other hand, sometimes traditional Indigenous knowledge means local knowledge, the specific, empirical knowledge that arises from long and intimate experience of a particular place, built up socially, passed on to subsequent generations, and available to be shared. This kind of Indigenous knowledge is most compatible with scientific investigation, and may be relatively easily shared. Like scientific knowledge, Indigenous local knowledge is specific, empirically testable, and capable of explanation in segments –as, for example, caribou hunters and caribou biologists might share information about animal behaviour, and compare predictions.

There is a third sense of the term that is much less compatible with either scientific knowledge or public policy decision-making. Indigenous knowledge can be understood to be an ethical-epistemological-cosmological understanding of how to live in the world, how best to be human, of understanding responsibilities to others and to the world. This entails understanding the relations among all things, and in this way of approaching human existence, making no sharp distinctions among humans, animals, birds, waters, land, mountains and so on. It is difficult to write about this kind of knowledge in English or any modern language, because these now have embedded different concepts and distinctions.

Two articles in the UNDRIP are pertinent to understanding the role of Indigenous Knowledge in development decision-making:

• Article 27: States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognise and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

• Article 31: Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

These principles are generally in line with current Canadian public policy, though they do raise the question of the proper operationalisation of the Supreme Court of Canada decisions discussed earlier in this chapter, which place a duty on Canadian governments (in right of the Crown) to “consult and accommodate” Indigenous peoples on whose lands development is proposed. There is still a lack of consensus about what constitutes an appropriate level of accommodation, and the question of whether the injunction to accommodate ever sanctions an Indigenous veto over what happens on their traditional lands.

Indigenous people have taken a number of steps towards managing the use of their knowledge by others. The OCAP® principles –Ownership, Control, Access and Possession—were developed to explain appropriate behaviour to those who would do research in Indigenous communities. They do not distinguish among the types of Indigenous knowledge briefly characterised above (First Nations Information Governance Centre, 2014[10]). Many Indigenous governments and some organisations have procedures for review and approval of research projects, akin to the ethics review boards established at Canadian universities.

The Canadian research community has been coming to terms with these issues since at least the 1970s. While there is a growing body of scholarship and discussion about methodology and epistemology, no consensus has emerged and it remains the case that the discussion itself has been confined to Indigenous scholars and non-Indigenous scholars who would work with Indigenous peoples.37

No single document can adequately summarise the colonial history and present circumstances of present-day Canada. This chapter provides a perspective on the historical roots of Indigenous – Canada relations, by way of situating present conditions and some of the key issues facing Indigenous people and other Canadians today. The treaties and their affirmation in the Constitution Act 1982 and subsequent jurisprudence provide the legal foundation for the multiple processes of self-determination currently underway. Each of these has had an impact on the institutional structure of Canada, and they will continue to do so. By this means, social forces introduce durable change.