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Judicial Findings from the Inter-Tribal Tribunal on Residential Schools in Canada

Last Updated June 13, 2014

Forced Aboriginal Assimilation

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Introduction to Assimilation:

 

In 1982, section 35(1) of the Constitution Act in Canada recognized and affirmed existing Aboriginal and treaty rights of  Aboriginal Peoples of Canada. This recognition and promise of affirmation changed the course of Canada.

 

The nation of Canada was build upon a base that did not recognize a place in Canada’s future for Aboriginal Peoples. Canada was colonized with polices that both forced Aboriginal assimilation to non-Aboriginal societal constructs and displaced Aboriginal Peoples from their lands. These policies, and their enforcing legislation, regulations and programs, created two paths in Canada,

“... one for non-Aboriginal Canadians with full participation in the affairs of their communities, province and nation; and one for the people of the First Nations, separated from provincial and national life, and henceforth to exist in communities where their traditional governments were ignored, undermined and suppressed, and whose colonization was as profound as it would prove to be immutable over the ensuing decades3.”

 

Now that Canada recognizes the rights of its Aboriginal Peoples, Canada needs a process to affirm those rights by:

 

 

The 2004 United Nations report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people in Canada called for new federal and provincial legislation in Canada to affirm Aboriginal rights4. Legislation that would:

   

 

 

The process Canada needs to affirm Aboriginal rights and comply with recommendations made by the United Nations is Meaningful Consultation.

 

1.  Need to Accommodate Aboriginal Rights:

 

From the time the Dominion of Canada was federated in 1867 until the Constitution Act (1982) came into force, Canada consciously chose a path of Aboriginal displacement and forced assimilation. Aboriginal rights were not considered and treaty rights were disregarded. Canadian policy and its legislation, regulations, services and programs were designed and enacted to,

“... do away with the tribal system and assimilate the Indian people in all respects with the inhabitants of the Dominion5.”

 

This Canadian policy of Aboriginal assimilation was given to Canada by Canada’s first Prime Minister, Sir John A. Macdonald. It was put into action by creating legislation that designed and forced non-Aboriginal educational systems, social policies and economic developments on Aboriginal Peoples to extinguish Aboriginal rights, culture, and infrastructure. The purpose of forced Aboriginal assimilation was the extensive annexation of Aboriginal lands and resources; the colonization of Canada.

 

By 1982, legislation, regulation, services and programs developed by the policy of forced assimilation were embedded within the entire political, social, educational and economic infrastructure of Canada. The now embedded policy of forced assimilation had systematically destroyed culture-based Aboriginal economic, educational, political and social infrastructures. However, the policy of forced assimilation failed to completely remove Aboriginal Peoples from their lands and left them with the traditional foundation of their culture.

 

After the Constitution Act came into force in 1982, nothing changed for Canada’s Aboriginal Peoples. Their Aboriginal and treaty rights were now considered recognized and affirmed but the same laws, regulations, services and programs that had done the work for the policy of forced assimilation were still embedded in the fabric of Canada and had now become barriers, embedded forced assimilation barriers (EFABs), to the rebuilding of culture-based Aboriginal economic, educational, political and social infrastructures. Aboriginal people then took rights afforded to them on paper, by the Constitution Act, and began to challenge embedded forced assimilation barriers in the Canadian court system.

 

Since 1982, Common Law derived from court rulings in Canada has created a Rule of Law that has begun to protect Aboriginal rights. On June 11, 2008, Prime Minister Stephen Harper and the leaders of every major federal political party in Canada denounced Canada’s policy of forced Aboriginal assimilation, promising it would never happen again. Unfortunately, legislation has not changed in Canada and so EFABs are still actively preventing the rebuilding of culture-based Aboriginal infrastructure; the policy of forced Aboriginal assimilation is very much alive.

 

Canada recognized Aboriginal rights but battles within the Canadian judicial system have stripped the facade off Canadian hypocrisy revealing Canada has little or no respect for Aboriginal rights. Respect for recognized Aboriginal rights will be accorded to Aboriginal Peoples when Canada adopts an accountable mechanism for the accommodation of Aboriginal rights. The measure of Canada’s accommodation of Aboriginal rights will be the rebuilding of what forced Aboriginal assimilation destroyed; modern culture-based Aboriginal economic, educational, political and social infrastructures. The transparent, accountable mechanism for the accommodation of Aboriginal rights is Meaningful Consultation.

 

2.  Need for a New Legal Basis in the Relationship:

 

The Report of the Royal Commission on Aboriginal Peoples (1996) demanded the creation of a process that will lead to a new legal basis for the relationship between Aboriginal Peoples and Canada.1 The Government of Canada has not provided that process to the date of this writing. Legal issues that must be addressed include:

 

  1. Unfulfilled treaties;
  2. Non-recognition;
  3. The Indian Act;
  4. Cultural genocide;
  5. Selective funding;
  6. The United Nations Declaration on the Rights of Indigenous Peoples (2007);
  7. Recognition of the Innu Nation
  8. Department of Indian and Northern Affairs Canada; and,
  9. The policy of assimilation.

 

 

The process for the resolution of each of these legal issues includes Meaningful  Consultation.

 

a.  Unfulfilled Treaties:

Canada’s early treaties with Aboriginal Peoples remain unfulfilled. These treaties cover vast areas of the Canadian landscape but were never incorporated into Canadian legislation and implemented. Rights and promises recognized in these treaties can only be upheld by an act of legislation. They remained unsanctioned executive actions of the Crown. As a result, treaty rights and guarantees have been eroded and undermined by Canadian laws6.

 

For almost all intents and purposes, these early treaties have been broken7. They, are however, still Memorandums of Understanding between two nations8. These treaties denote the intent of two sovereign nations to share the land and its resources in mutual respect9. It is the view of the Royal Commission on Aboriginal Peoples that:

“... the Crown is under a fiduciary obligation to implement such measures as are required to reverse this colonial imbalance and help restore its relationship with treaty nations to a true partnership. This will require the Crown to take positive steps toward this end as well as to refrain from taking actions that will frustrate it10.”

 

Because of unfulfilled early treaties, treaty rights have yet to been affirmed in Canada. Canada needs a process to lay a foundation of understanding upon which to restore its treaty relationships with treaty nations. That process is Meaningful Consultation.

 

b.  Non-Recognition:

Prior to the Dominion of Canada federation in 1867, there existed a tripartite relationship in Canada between the British Empire, colonies and Aboriginal Nations. This relationship was unilaterally changed by legislation in two steps: In 1860, the Indian Lands Act transferred authority over Aboriginal people and Aboriginal lands from the British to the colonists. Second, the 1867 Constitution Act shuffled authority over Aboriginal people and lands from colonists into the new federal government of the Dominion of Canada. At that time, colonies became provinces under the new Dominion. The new tripartite relationship created in 1867 was between British, federal, and provincial governments. No mention of Aboriginal nations, rights or treaties was included within the constitution of Canada. Aboriginal Peoples were not recognized11.

 

The Constitution Act of 1867 began what could be called a policy of “non-recognition.” Aboriginal rights were not recognized and therefore were not, and did not need to be, included into legislation. Later, the Constitution Act in 1982 recognized and affirmed existing Aboriginal and treaty rights. In doing so, Aboriginal and treaty rights need to be incorporated into Canadian legislation, both federal and provincial. All legislation in Canada was written to the exclusion of Aboriginal rights prior to 1982. Now, all legislation must be written to include Aboriginal rights. Unfortunately, virtually no legislation in Canada has been re-written since 1982 to include Aboriginal rights. Legislation must change to recognize Aboriginal rights by their inclusion into Canadian legislation.

 

Legislation that limits Aboriginal rights by exclusion has been found to be prima facie unreasonable and has been struck down by the Canadian judicial system on a number of occasions. Canada must accommodate constitutionally enshrined rights of Aboriginal Peoples in legislation.12 13 Canada must affirm Aboriginal and treaty rights in legislation.

 

Canada needs a new relationship to include Aboriginal Peoples and their rights into Canada. The current tripartite relationship does not recognize Aboriginal Peoples or their rights. Canada needs to define a new relationship to affirm the recognition of Aboriginal and treaty rights now afforded in the Constitution Act. Canada needs a mechanism to identify, understand and accommodate Aboriginal rights for this new relationship. That mechanism is Meaningful Consultation. Meaningful Consultation will result in the affirmation of Aboriginal rights by their inclusion into Canadian legislation.

 

c.  The Indian Act:

The sole purpose of the Indian Act was to displace and assimilate Canada’s Aboriginal Peoples. It was consolidated from other legislation meant to force assimilation and displacement. To understand the intent of the Indian Act, one needs only look at the intent of legislation from which it was consolidated.

 

 

 

The first Indian Act was passed in 1876. It created a legislated regulatory framework from laws that empowered displacement and assimilation. The Indian Act has remained essentially unchanged to the day of this writing17. Control over Aboriginal political structures, lands, resources and economic development through today’s Indian Act (1985) continues the unfinished policy of forced displacement and assimilation. In the words of the Royal Commission on Aboriginal Peoples (1996),

“A royal commission cannot make laws. It can inform and recommend, however. In that role, we can call attention to the factors, attitudes and continuing assumptions that brought about the Indian Act and that continue to prevent progress in moving away from the restrictive Indian Act vision. Those factors are to be found in past assumptions and the shadows they have cast on present attitudes. They must be recognized for what they are and cast away as the useless legacy of destructive doctrines that are as inappropriate now as they were when first conceived. If this review of the foundations of the Indian Act has shown these assumptions for what they are, it will have succeeded as the first step in entering a new era of partnership between governments and Indians. Paradoxically, this new partnership is also a very old partnership, indeed, older than the Indian Act and what it represents 18.”

 

 

The Indian Act (1985) is the centrepiece of legislation against Aboriginal Peoples in Canada. It:

 

 

The time to remove the Indian Act and provide legislation that affirms the rights of Aboriginal Peoples is at hand. Canada will need a Meaningful Consultation process to develop new legislation that respects Aboriginal Peoples.

 

d.  Cultural Genocide:

The Indian Act (1876) included an enfranchisement process by which Aboriginal people could become full citizens, when they qualified. It did not provide a process through which a former Aboriginal person could once again become Aboriginal. Clearly, assimilation was the policy objective behind the Indian Act21.

 

The policy of forced Aboriginal assimilation in Canada 1 2 5 came into full force through the Indian Act (1876, 1880 and 1886) and the Indian Advancement Act (1884). Methods of forced assimilation included22:

 

 

 

The death toll of Aboriginal children in residential schools averaged approximately twenty-five percent23 but at the beginning of the twentieth century it was as high as fifty percent24.

 

The removing of children from their parents with the goal to change a people or their culture formally became the crime of genocide with the adoption of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide in 194825. Article 2 of the United Nations declaration states:

Article 2: “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

 

  1. Killing members of the group;
  2. Causing serious bodily or mental harm to members of the group;
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. Imposing measures intended to prevent births within the group;
  5. Forcibly transferring children of the group to another group.”

 

 

Prior to 1948, the term genocide did not exist. The recognition of the crime of genocide and the development of international law against it was the direct result of world reaction to the Jewish holocaust and other Nazi extermination policies. However, Hitler's sterilization and extermination policies were modelled on the treatment of Aboriginal Peoples in Canada and the United States26. Genocide may not have existed prior to 1948,

“... however, the actions of Britain and the settler governments in Australia and Canada clearly demonstrated that the practice of genocide did27.”

 

Provincial child welfare agencies succeeded residential schools as the preferred care system for Aboriginal children28. Started in the 1950's, they gained support from recommendations made in the federal government’s 1966 Hawthorne Report29. Aboriginal children were removed from their homes and placed into non-Aboriginal foster care or adopted into non-Aboriginal homes without voluntary parental consent. Children taken from Aboriginal communities were not necessarily placed in homes within Canada. Provincial child welfare agencies were introduced to accomplish some of the residential school purposes and were subject to some of the same types of internal child abuse problems as residential schools. As many as one in four Aboriginal children were removed from native communities and spent at least some part of their childhood away from their parent’s home.

“In many ways, the child welfare system put First Nations children under more pressure to assimilate than did the residential school system ... And, with all this pressure, assimilation may have succeeded had it not been for mainstream Canadians’ racist attitude towards people who were visibly of First Nations descent. It was their visibility which prevented many First Nations peoples from being accepted in mainstream society and which, consequently, made it impossible for them to assimilate.30.”

 

The forced assimilation of Aboriginal Peoples in Canada tends to be referred to as both cultural genocide and genocide27 31 32 33. In 2008, Canada’s Prime Minister, Stephen Harper, apologized to Aboriginal Peoples in Canada for the Canadian policy of Aboriginal assimilation, forced removal of Aboriginal children and residential schooling34. However, Canada does not interpret its policies on forced Aboriginal assimilation as cultural genocide.

“For purposes of Canadian law, we believe that the definition of genocide should be drawn somewhat more narrowly than in the international Convention so as to include only killing and its substantial equivalents ... The other components of the international definition, viz, causing serious bodily or mental harm to members of a group and forcibly transferring children of one group to another group with the intent to destroy the group we deem inadvisable for Canada- the former because it is considerably less than a substantial equivalent of killing in our existing legal framework, the latter because it seems to have been intended to cover certain historical incidents in Europe that have little essential relevance to Canada where mass transfers of children to another group are unknown35.”

 

There is no distinction between genocide and cultural genocide in Article 2 of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide36. Enough circumstantial evidence exists that Canada engaged in each of the acts of genocide as set out in the United Nations Convention to warrant, at least, the suspicion that cultural genocide was a national policy in Canada27.

 

Canada needs Meaningful Consultation as a new policy in its relationship with Aboriginal Peoples. The continued destruction in part or in whole of Aboriginal Peoples in Canada has been a crime of genocide since 1948 and a violation of Canadian constitutional rights since 1982.

 

e.  Selective Funding:

One perception of the policy of forced Aboriginal assimilation was as a duty to civilize Aboriginal people. Federal legislation was created that purposely designed educational systems, social policies and economic developments to assimilate Aboriginal Peoples into a better way of life. As a direct consequence of Canada’s policy on forced Aboriginal assimilation, two paths were laid out at confederation:

“... one for non-Aboriginal Canadians with full participation in the affairs of their communities, province and nation; and one for the people of the First Nations, separated from provincial and national life, and henceforth to exist in communities where their traditional governments were ignored, undermined and suppressed, and whose colonization was as profound as it would prove to be immutable over the ensuing decades3.”

 

Aboriginal Peoples simply had to choose enfranchisement, becoming non-Aboriginal, to enjoy full participation in the affairs of Canada.

 

While the Indian Act, and the administration it produced, had the objective of displacement and assimilation for enfranchising Aboriginal Peoples, most policy makers and individuals working with Aboriginal people knew nothing about that objective by the 1950's. Non-Aboriginal Canadians simply believed that mainstream, non-Aboriginal Canada was the only worthwhile way to live in Canada; they truly wanted the best for Aboriginal individuals37. The Hawthorne Report (1966)29 and its recommendations still guide much of the federal policy derived from this benevolence towards Aboriginal Nations. In this policy, help is only available for Aboriginal Peoples if the non-Aboriginal path is chosen. Examples of this can be seen in the following recommendations from the Hawthorne Report:

 

 

 

The Hawthorne Report supported its policy recommendations for non-Aboriginal education, economic development, government and social welfare with recommendations for 100's of millions of dollars in funding. Federal and provincial authorities applied many of the Hawthorne Report’s recommendations and provided funding for education, economic development, government and social welfare systems. Unfortunately, all funding was for non-Aboriginal-based streams of education, economic development, government and social welfare. No funding was provided for culture-based Aboriginal education, economic development, government and social welfare.

 

The Hawthorne Report paved the way for a new era in forced Aboriginal assimilation in Canada. Provincial and federal governments now provide funding to Aboriginal Peoples only if their request falls within government funding models. Funding models invariably provide funds for non-Aboriginal solutions to Aboriginal problems; problems that arose from the policy of forced assimilation. All funding for culture-based Aboriginal solutions to Aboriginal problems is denied because these solutions fall outside government program funding models. Canada is currently forcing the assimilation of Aboriginal Peoples by selectively funding only non-Aboriginal solutions for education, economic development, government, social welfare and more.

 

Canada needs Meaningful Consultation to provide a foundation for a new policy in its funding relationships with Aboriginal Peoples. The machinery that underlays poverty and third world conditions in today’s Aboriginal communities is the withholding of funds by federal and provincial governments for culture-based Aboriginal solutions coupled with the refusal of Aboriginal people to assimilate under the extreme financial pressure.

 

f.  United Nations Declaration on the Rights of Indigenous Peoples:

Canada formally announced an end to its policy of Aboriginal assimilation in June of 2008. Unfortunately, the policy of assimilation is still continued through the functioning of embedded forced assimilation barriers (EFABs). EFABs are active policies, laws, regulations and services that were created within the policy framework of forced Aboriginal assimilation to do the work of assimilation. EFABs have not been identified and removed from the legislative framework of Canada38.

 

In September 2007, the United Nations passed resolution 61/295, the Declaration on the Rights of Indigenous Peoples19. Canada’s EFABs cause basic Aboriginal rights guaranteed in resolution 61/295 to be withheld from Canada’s Aboriginal Peoples. Canada has and is withholding inherent rights to:

 

 

 

The withholding of these rights prevents Aboriginal Nations from rebuilding traditional culture-based infrastructures needed to end the cycle of poverty and forced assimilation. Closed doors to Aboriginal rights coupled with open doors to non-Aboriginal, enfranchised rights are the hallmark of today’s expression of the policy of forced Aboriginal assimilation in Canada.

 

Canada is in apparent violation of Articles 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 18, 19, 20, 21, 23, 25, 26, 27, 28, 29, 32, 33, 34, 35, 37, 38, 39 and 40 of the Declaration on the Rights of Indigenous Peoples. Canada continues to withhold these international Aboriginal rights, through EFABs, while vast amounts of Canada’s land mass, rich in natural resources, is land occupied by impoverished Aboriginal Peoples. Canada presents Aboriginal Nations with only two alternatives, assimilate or maintain the status quo of poverty.

 

Under United Nations resolution 61/295, Articles 1, 3, 6, 9, 40 and 41, and resolution 217A(III)  the Universal Declaration of Human Rights39 Article 15, Aboriginal Nations in Canada may now have four choices before them:

  1. Assimilate;
  2. Maintain the status quo with Canada;
  3. Choose another nationality and another nation as a partner; or,
  4. Choose to take their place as a nation directly under the protection of the United Nations.

 

With options three and four, large regions of land and resources will succeed from Canada. The continuing of Canada’s forced Aboriginal assimilation policy by EFABs leaves Canada with only two choices:

 

  1. Change: This will result in the removal of EFABs, affirmation of Aboriginal rights recognized in the Constitution Act (1982), reconciliation, and a new relationship between Canada and its Aboriginal Peoples.
  2. Refuse to Change: This will result in the continued and escalating enforcement of the policy of forced assimilation, the separation of Aboriginal Nations from Canada, and violation of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948), United Nations Universal Declaration of Human Rights (1948), Constitution Act (1982) and the United Nations Declaration on the Rights of Indigenous Peoples (2007).

 

To some, the notion of Aboriginal Peoples separating from the body politic of Canada is extreme and alarmist. However, on July 25, 2008, a small group of Saskatchewan First Nations signed a memorandum of understanding with Taiwan’s state-owned Chinese Petroleum Corporation to develop tarsands40. Chinese Petroleum pledged up to $800 million towards the venture.

 

The United Nations Declaration on the Rights of Indigenous Peoples contains a process within Articles 19 and 27 for resolving and preventing conflict between Indigenous Peoples and colonizing nations. That process is consultation.

 

Canada needs another relationship with Aboriginal Peoples for equitable sharing and managing of land and resources in Canada. Meaningful Consultation is an essential part of developing that new relationship. It gives Aboriginal Peoples in Canada a new, fifth, option.

 

g.  Recognition of the Innu Nation:

The United Nation Human Rights Committee noted in 1999 the situation with Canada’s Aboriginal Peoples was the most pressing human rights issue facing Canada41. In 2004, a report from the United Nations’ Special Rapporteur on the situation with Canada’s Aboriginal Peoples indicated Aboriginal people were still justifiably concerned over continuing inequalities and the slow pace of their constitutional Aboriginal and treaty rights recognition42. One of the most profound failures in Canada’s recognition of Aboriginal rights is with the Innu Nation in Labrador43. Canada’s treatment of the Innu raised a rallying cry from around the world44 45.

 

The Innu were the original fur-trading allies of the French. The Innu of Northern Québec and Labrador never signed a treaty with the French or British during Canada’s early colonization. With confederation in 1867, the Innu Nation was geographically divided between Northern Quebec and Labrador. Newfoundland and Labrador (N-L) remained under British rule until 1949 when they entered confederation. At the time of union, N-L’s Aboriginal people included Innu, Mi’kmaq and Métis. N-L had no concept in law or legislation for Aboriginal rights at the time of union and no mention of N-L’s Aboriginal Peoples was placed in the terms of union46; N–L’s Aboriginal Peoples were not recognized. A very truncated history of Canada’s recognition of N-L’s Innu follows:

 

 

 

The Innu of N-L are a nation that was not conquered and did not relinquish its land to colonization. The rights of the Innu are protected by the United Nations from a time before the union of N-L with Canada. At the time of union in 1949, Canada and Innu were separate nations. Since that time, Canada has consistently refused to recognize and receive the Innu Nation into Canada. The fact the Innu are not recognized as Aboriginal People under the Constitution Act (1982) was evidenced by the need for an Order-in-Council to extend nominal benefits under the Indian Act to the Innu. Without constitutional recognition, the Innu have no existing Aboriginal and treaty rights in Canada to recognize and affirm. The rights of the Innu are still recognized and affirmed by international law through the United Nations. The Innu are a non-extinguished, non-enfranchised  nation upon whom the full force of the Canadian policy of forced assimilation has fallen. The United Nations conventions that are in full play with the Innu include:

 

 

 

There is no retroactive amendment to the Citizens Act regarding the Innu. As a nation, they have the right to file claim or charges with international courts for the dire treatment they have endured, and are enduring, as a nation within the nation of Canada. There is no time limitation on the prosecution of the crime of genocide except the death of individuals to be prosecuted. Articles 3 and 4 of the convention on genocide read:

 

Article 3: “The following acts shall be punishable:

 

  1. Genocide;
  2. Conspiracy to commit genocide;
  3. Direct and public incitement to commit genocide;
  4. Attempt to commit genocide;
  5. Complicity in genocide.”

 

Article 4: “Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.”

 

 

There is enough circumstantial evidence documented by the media and the United Nations to warrant an international investigation into Canada’s actions against the Innu.

 

Canada needs a Meaningful Consultation process to recognize the Innu Nation, affirm their Aboriginal rights and to reconcile for its treatment of the Innu.

 

h.  Department of Indian and Northern Affairs Canada:

Section 91(24) of the Constitution Act (1867) transferred legislative authority over Aboriginal people and lands reserved for Aboriginal people to the federal government. The earliest predecessor of the current department of Indian and Northern Affairs Canada was established in 1868. In 1876, all legislation on Aboriginal people and their land was consolidated into the Indian Act and placed under the control of INAC, in its early morphology. Principal features of INAC’s early administration were the50:

 

  1. Superintendent of Indian Affairs and his in-community Indian Agents who governed Aboriginal people using extensive powers provided by the Indian Act. Aboriginal people were not citizens and so INAC exercised the power of citizenship for them. Aboriginal People were children (wards) over whom INAC had absolute authority.
  2. Indian band which was a non-traditional form of government created by the Indian Act. It was imposed on Aboriginal people and controlled by INAC.
  3. Church Mission which focussed on teaching colonial morality so that adult Aboriginal people would become Christian, civilized and educated; assimilated and ready for enfranchisement into Canada. The mission work was administered by INAC.
  4. Residential schools used to force the assimilation of Aboriginal children. They were administered for INAC by other, usually religious, organizations.

 

 

The Report of the Royal Commission on Aboriginal Peoples (1996) revealed that INAC’s authority over Aboriginal people and their lands was laid on a foundation of four false assumptions; assumptions that were racist, or at best ignorant51. These four assumptions are52:

 

  1. Aboriginal people are inherently inferior and incapable of governing themselves;
  2. Treaties and other agreements are not covenants of trust and obligation, and, are less expensive and more acceptable tools than armed conflict. They are bureaucratic Memorandums of Understanding to be formally acknowledged but ignored when convenient. Policy, legislation, regulations and programs can run roughshod over treaty obligations;
  3. Wardship is appropriate for Aboriginal peoples. Actions deemed to be of benefit for Aboriginal people can be taken unilaterally without their consent or involvement in design or implementation; and,
  4. Concepts of development are defined for Aboriginal people by non-Aboriginal values. This applies to the individual, community and nation. This concept of development is equally applied whether to civilization and assimilation, or, resource development and exploitation of the land.

 

 

These prejudiced assumptions are a reflection of the time in which they were formed, a time of ignorance, displacement and forced assimilation. Under these conditions, bigoted assumptions prospered and became incorporated into government policies. These policies were an abuse of Canada’s fiduciary responsibility to Aboriginal Peoples enabling INAC to abuse its power over Aboriginal people and their land.

“We also draw attention to the abuse of power that took place — not just periodic unfairness, but excessive and systematic political dominance, reflected in both the processes and the outcomes of governance ... Once the cycle has begun, however, cause and effect can be, and often are, interactive; abuse of power produces new ideas that are false.51"

 

INAC’s abuse of power reveals itself by virtue of its actions. The power abuse has two telltale attributes53:

 

  1. The crude, unjust intrusiveness of the instruments used by INAC against Aboriginal Peoples. These policy tools were not designed to guide and influence Aboriginal people. They were tools meant to invade lands, lives, families, and homes. These tools included:
  1. The unimpeded exercise of INAC’s authority and its accompanying bureaucratic refusal to change. INAC has often administered in a punitive fashion or with unconscionable use of bureaucratic power. The department should be guided by Ministerial authority but the institution that is INAC maintains its own status quo, refusing to change.

 

 

No amount of recent Ministerial or Prime Ministerial delegation has changed INAC’s policies or direction; including, the public apology given to Aboriginal Peoples by Prime Minister Harper in 2008.

“... the more intrusive the agencies and instruments of policy were, the harder they were to unravel and change. The exercise of unbridled authority leads inevitably to resistance to change and to a perverse inertia ...54

 

For the last 141 years INAC has had control over Aboriginal lives and lands. INAC was founded on racist assumptions which bred policies of displacement and assimilation. Some tools INAC used have changed, others have not. Until founding attitudes are removed from the institution that is INAC by removing policies, legislation, regulation, services and programs (EFABs) bred from these attitudes, INAC is incapable of working in the best interest of Aboriginal Peoples and Canada. Canada has renounced its policy of forced assimilation. INAC needs to change to meet that new policy objective. Canada can not change its relationship with Aboriginal Peoples unless INAC changes.

 

INAC will need to redefine its mission and responsibility within Canadian bureaucracy. The United Nations recommended4 that INAC focus on human rights and use a participatory development approach in dealing with Aboriginal issues. In essence, INAC should respect national and international Aboriginal rights using a consultation process to accommodate Aboriginal rights. INAC has two choices:

 

  1. Change: INAC can become the agency Canada needs to forge new, equitable partnerships between Canada and its Aboriginal Peoples; an agency that empowers and respects Aboriginal rights through Meaningful Consultation; or,
  2. Maintain the Status Quo: INAC can continue to refuse change becoming ultimately accountable for hardships Aboriginal Peoples have endured through its policy of assimilation and abuse of power.

 

 

The Report of the Royal Commission on Aboriginal Peoples’ recommendation 2.3.45 states the Government of Canada should present legislation to abolish and replace INAC55. INAC needs a Meaningful Consultation process capable of respecting and reconciling Aboriginal rights with non-Aboriginal rights.

 

i.  The Policy of Assimilation:

The essence of the policy of Aboriginal assimilation is that Aboriginal Peoples in Canada have no rights unless they assimilate and become Canadian (enfranchisement). Canada apologized for and renounced this policy of Aboriginal assimilation on June 11, 2008. However, nothing has improved for Aboriginal Peoples, their rights have not advanced. This is because the policy of assimilation has become deeply embedded into the fabric of Canada since confederation. In practical terms, the policy of assimilation gave rise to other policies. These secondary policies, whether individually conceived or functional derivatives, dictated legislation, regulations, and services from which programs, or a lack thereof, were created.  This paper has just examined eight of these policies that must change to provide a new legal basis in legislation. There are more. These secondary assimilation polices can be referred to as the “assimilate-by” policies. They are assimilate-by:

 

  1. Breach of Promise: Unfulfilled treaties deny Aboriginal rights.
  2. Exclusion: Creating legislation that does not recognize Aboriginal rights.
  3. Legislation: Creating legislation against Aboriginal rights and culture, the Indian Act.
  4. Cultural Destruction: Cultural genocide from residential schools and provincial child welfare agencies, the Indian Act, forced relocation and provincial education systems.
  5. Attrition: Selective funding and infrastructure development to support non-Aboriginal definitions of development and civilization.
  6. Acquisition: Crown ownership versus inherent and international Aboriginal rights to land and resource ownership.
  7. Apathy: Indifference to adversity caused by the refusal to recognize the Innu Nation and Aboriginal Peoples of Newfoundland and Labrador.
  8. Abuse of Power: INAC’s refusal to change maintaining embedded forced assimilation barriers, blocking Meaningful Consultation and preventing reconciliation.

 

 

Legislation, regulation, services, and programs, or a lack thereof, created from these secondary assimilate-by policies are the EFABs that prevent the advancement of inherent, international and constitutionally guaranteed Aboriginal rights in Canada.  Many of these EFABs will be found in INAC but many others will be found dispersed throughout the legislative framework of Canada. Canada’s policy of assimilation will remain active until assimilate-by policies are identified and EFABs removed. Assuming INAC changes, one of its primary responsibilities will be the removal of EFABs through the screening of all current and future government legislation, regulations, services and programs.

 

Meaningful Consultation will be an essential part of the process for removing EFABs and accommodating Aboriginal rights in Canadian legislation, regulation, services and programs.

 

3.  Need to Reconcile:

 

The Report of the Royal Commission on Aboriginal Peoples made a number of recommendations to the Government of Canada regarding residential schools56. Canada consequently made a Statement of Reconciliation to residential school survivors in 1998 and created the Aboriginal Healing Foundation. In 2003, the Government of Canada launched a Dispute Resolution plan to compensate survivors that fell far short of the expectations of Aboriginal Peoples in Canada.  In response, the Assembly of First Nations, with Grand Chief Phil Fontaine, launched a class action lawsuit in 2005 against the federal government. As a settlement in that case, the Government of Canada signed the Indian Residential Schools Settlement Agreement (IRSSA) in 200657.

 

The IRSSA was implemented on September 19, 2007. Included within the IRSSA was schedule “N”, the mandate for a truth and reconciliation commission (TRC)58. The TRC began its work on June 1, 2008. Prime Minister Stephen Harper announced the start of the work for the TRC when he, and leaders for every major political party in Canada, apologized to Aboriginal Peoples for the residential schooling system. They decreed there was no place left in Canada for the policy of forced Aboriginal assimilation.

 

The TRC ran into trouble within a few short months of its commencement with the staggered resignation of appointed commissioners and INAC’s replacement of its executive director. In testimony before the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, the new bureaucratic executive director of the TRC, Aideen Nabigon, admitted that $3.4 million in funds would be used before the TRC would start its work and that there was no mandate for a final report from the TRC. If a final report was prepared, it and a mandated interim report would be subject to revision by the Minister of INAC before presentation to Parliament. Ms. Nabigon indicated that the TRC’s goal was solely to lay a foundation for reconciliation, there was no goal for reconciliation59.

 

Reconciliation is the act of reconciling where, in this instance, to reconcile is to restore, repair or make good again to achieve a settlement. The TRC’s mandate does not include reconciliation but Aboriginal Peoples need a process of reconciliation to achieve settlement. There is no mechanism currently in place that will result in the change needed to restore lives destroyed by the policy of forced Aboriginal assimilation and its residential schooling tool. Nothing has changed since the IRRSA was signed to the date of this writing.

 

Aboriginal People need to be given back tools taken from them through which solutions can be built; tools destroyed by the policy of forced assimilation. These tools are normally found within societal infrastructure. Unfortunately, poverty and despair were created in Aboriginal Nations because the policy of forced assimilation destroyed the evolution of Aboriginal infrastructure, preventing today’s solutions from coming through culture-based Aboriginal infrastructure. Core Aboriginal infrastructures that have been completely or partially destroyed include:

 

 

 

Now that Canada has acknowledged the carnage caused by the policy of forced Aboriginal assimilation, Aboriginal Peoples are left with absent, insufficient or inappropriate infrastructure in each of the areas that Aboriginal infrastructures should have developed to keep pace with the changing needs of Aboriginal citizens. Nothing will change for Canada’s First Nation, Inuit, Innu and Métis Nations until missing culture-based Aboriginal infrastructures are restored and harmonized  into both the Canadian and global systems38. When this is done, reconciliation in Canada with Aboriginal Peoples will be achieved. Traditional, culture-based Aboriginal infrastructure can be reconciled through Meaningful Consultation.

 

4.  Need for an Aboriginal Culture Database:

 

To affirm Aboriginal rights, Canada needs to:

 

  1. Recognize Aboriginal law, regulation and roles; and,
  2. Respect Aboriginal law, regulation and roles in Canadian law and regulation.

 

 

To recognize and respect Aboriginal law and regulation, Canada needs to know and understand Aboriginal culture. Unfortunately, Canada’s policies have been centred on forcing assimilation and not on learning Aboriginal culture. Canada needs a focussed database on Aboriginal law and regulation as part of the process to affirm Aboriginal rights.  

 

Recommendations 1.7.1 and 1.7.2 in the Report of the Royal Commission on Aboriginal Peoples56 called for Canada to fund and create a historical database by 2016 that reflected Aboriginal Nations in Canada. The commission recommended that creation of the database respect:

 

 

 

 

To accomplish this, Canada will need a consultation process that can facilitate Aboriginal Peoples’ sharing of their culture and history across the country.

 

The database called for by the Royal Commission on Aboriginal Peoples would include generalities of Aboriginal law and regulation but without specific tasking, it would not provide enough detail on Aboriginal law and regulation to affirm Aboriginal rights in Canadian law and regulation. Canada needs a consultation process that can also provide detailed meaning to Aboriginal law and regulation.

 

A nation can be functionally defined by its laws and regulations (Nation = Law + Regulation). For simplicity, a nation is a body of people sharing a common culture. A nation’s culture is defined by its traditions and customs (Culture = Tradition + Custom). If one steps out of the twenty-first century’s political vernacular and uses the terminology of an oral history-based nation, traditions are laws and customs are regulations. In this context, a nation can be defined by its traditions and customs. Connecting the dots, one sees that, Nation = Culture = Tradition + Custom = Law + Regulation. In practical terms, for Canada to respect:

 

 

 

With these simple equations, the functional key to a consultation process is defined. Canada must focus consultation with Aboriginal Peoples on culture, tradition and custom, to obtain an understanding of Aboriginal law and regulation. With a database on Aboriginal tradition and custom, Canada can ensure its laws and regulations respect Aboriginal laws and regulations. With mutual respect of law and regulation, Canada can affirm Aboriginal rights, reconcile with Aboriginal Peoples and respect Aboriginal culture.

 

A database on Aboriginal culture will provide the knowledge base necessary for governments and industry to build infrastructure that respect Aboriginal rights. Respectful infrastructure will reconcile Aboriginal rights with the interests of government, industry and other Canadians.

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© Christian Aboriginal Infrastructure Developments

Last Updated June 13, 2014