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:
- Accommodating Aboriginal rights;
- Providing a new legal basis for its relationship with Aboriginal Peoples;
- Reconciling with Aboriginal Peoples; and,
- Providing an Aboriginal culture database for all Canadians to respect.
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
- Be Accountable: In line with the 1996 Report of the Royal Commission on Aboriginal
- Consult: Adapt the department of Indian and Northern Affairs Canada (INAC) to use
a participatory development approach in dealing with Aboriginal issues;
- Respect: Adapt INAC to use a human rights centred approach in dealing with Aboriginal
- Honour: Fully implement and renew existing treaties to protect Aboriginal rights
and interests; and,
- Accommodate: Reconcile the interests of Canadian society with the terms of renewed
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:
- Unfulfilled treaties;
- The Indian Act;
- Cultural genocide;
- Selective funding;
- The United Nations Declaration on the Rights of Indigenous Peoples (2007);
- Recognition of the Innu Nation
- Department of Indian and Northern Affairs Canada; and,
- The policy of assimilation.
The process for the resolution of each of these legal issues includes Meaningful
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
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
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
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 Gradual Civilization Act (1857) was drafted from the premise that by gradually
removing distinctions between Aboriginal and non-Aboriginal people through enfranchisement,
it would be possible to fully absorb Aboriginal Peoples into colonial society14.
This act provided a mechanism for assimilation.
- The Indian Lands Act (1860) formalized procedures for surrendering Aboriginal lands
and gave authority over Aboriginal people and Aboriginal lands to the colonial legislature;
authority was removed from the British Parliament11. This act provided a mechanism
to annex Aboriginal lands. Aboriginal People were no longer in a mutual relationship
- Section 91(24) of the Constitution Act (1867) transferred legislative authority over
Indians and lands reserved for Indians to the new federal Parliament. Aboriginal
Nations no longer existed under the Crown and were not recognized in Canadian legislation.
Aboriginal rights and treaties were also not recognized15. This act removed all Aboriginal
- The Gradual Enfranchisement Act (1869) was the first legislation adopted by Parliament
to force Aboriginal assimilation. It continued “gradual civilization” through enfranchisement
but gave the superintendent general of Indian Affairs power to force Aboriginal Peoples
to adopt a municipal-style government. This act undermined Aboriginal culture and
forced the assimilation of Aboriginal government16.
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:
- Violates Aboriginal rights guaranteed in the United Nations Declaration on the Rights
of Indigenous Peoples (2007)19;
- Validates legislation that placed and maintains EFABs against Aboriginal rights in
direct opposition to the Constitution Act (1982); and,
- Recently20, sections 6(1)(a) and 6(1)(c) of the Indian Act were found by Canadian
courts to violate Aboriginal women’s rights.
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 abolition of Aboriginal status as independent, self-governed peoples;
- Legislated rules for band membership;
- Abolition of traditional political systems;
- Imposition of federally-controlled election systems;
- Banning spiritual Aboriginal activities;
- Formal creation of residential and industrial schools administrated by religious
- Mandatory school attendance for Aboriginal children with the later imposition of
fines and jail sentences for parents who failed to comply.
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:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- 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
- Volume 1, Recommendation 3: “The main emphasis on economic development should be
on education, vocational training and techniques of mobility to enable Indians to
take employment in wage and salaried jobs. Development of locally available resources
should be viewed as playing a secondary role ...”
- Recommendation 22: “Community development should be viewed as playing a distinctly
secondary role for most Northern and isolated, small communities ...”
- Recommendation 32: “The general policy of extending provincial services to Indians
should be strongly encouraged ...”
- Recommendation 33: “Where it is desirable to extend provincial services to Indians,
this should be undertaken as expeditiously as possible. Otherwise, as a consequence
of the growth in Indian population, the temptation to establish or maintain separate
services will become more pronounced ...”
- Recommendation 35: “Provincial governments should be encouraged to make the policy
decision that Indians are, in reality, provincial citizens ...”
- Recommendation 56: “All possible efforts should be made to induce Indians to demand
and to accept provincial welfare services.”
- Recommendation 69: “At the present time, the Indian Act, suitably modified where
necessary, constitutes the most appropriate legislative vehicle for the development
of Indian local government.”
- Recommendation 74: “Reserves should be treated as municipalities for the purpose
of all provincial and federal acts which provide grants...”
- Volume 2, Recommendation 1: “The principle of integrated education for all Canadian
children is recommended without basic question. The integration of Indian children
into the public school system should proceed...”
- Recommendation 2: “The Indian Affairs Branch should recognize a responsibility to
see that integrated schooling, once embarked upon, is as successful as possible...”
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
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:
- Self-determination and self-government;
- Pursue economic, social, and cultural development;
- Own and manage lands and resources; and,
- A nationality.
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:
- Maintain the status quo with Canada;
- Choose another nationality and another nation as a partner; or,
- Choose to take their place as a nation directly under the protection of the United
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:
- 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.
- 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:
- 1867: The Constitution Act gives the federal government jurisdiction over Indians
and lands reserved for Indians. The Innu of N-L are not within Canada and so are
not recognized in the Constitution Act. They remain a sovereign nation.
- 1876: The Indian Act comes into force. It has no application to the Innu of N-L.
- 1947-1949: Officials decide that after union, responsibility for N-L’s Aboriginal
Peoples will fall to the federal government and the Indian Act will apply. However,
no agreement was reached on defining responsibility for the Aboriginal Peoples of
- 1948: The United Nations Convention on the Prevention and Punishment of the Crime
of Genocide and the Universal Declaration of Human Rights are resolved and signed
by Canada. The sovereign Innu Nation acquires the rights afforded to them by the
United Nations’ resolutions.
- Prior to 1949: The Innu were not recognized by N-L and were a sovereign nation of
Indigenous Peoples with international rights under the United Nations. There is no
government department or agency responsible for Aboriginal affairs in N-L.
- 1949: The Union of N-L with Canada occurs with no mention of Aboriginal Peoples.
The Innu of Labrador remain a sovereign nation with rights under the United Nations.
Provincial laws and regulations are forced on the Innu.
- 1951: A national census of Aboriginal people is held but N-L is excluded. Canada
introduces the concept of band lists and establishes Indian Act bands. The Innu are
- 1956: Section 9 of the Citizenship Act was amended to grant formal citizenship to
Aboriginal people eligible under the Indian Act and Inuit. The 1956 amendment to
the Citizenship Act is made retroactive to January 1947, before Canada signed the
Universal Declaration of Human Rights and the Convention on the Prevention and Punishment
of the Crime of Genocide. The Innu of N-L are not recognized by Canada and the Indian
Act. They remain a sovereign Indigenous people protected by the United Nations and
- 1960: Aboriginal people recognized by the Indian Act and Inuit in Canada are fully
enfranchised as citizens and given the right to vote without loss of Aboriginal or
treaty rights (rights recognized and affirmed later in 1982). The Innu are not recognized
by Canada and maintain sovereign rights guaranteed to their nation by the United
- 1970s: The Upper Churchill hydro-electric development floods approximately 6,000
square miles of Innu land and Innu graves without prior consent.
- 1982: The Constitution Act recognizes Aboriginal Peoples as Indian, Inuit and Métis.
The Aboriginal Peoples of N-L, including the Innu, are not recognized. The Innu remain
a sovereign Indigenous People.
- 1989: United Nations C169 Indigenous and Tribal Peoples Convention48 is adopted.
Canada refused to sign the convention. Innu of N-L fall under the umbrella of C169.
- 1990: Canada and the Innu Nation of N-L begin land claims negotiation but to the
date of this writing there has been no agreement.
- 1997: Canada-Innu Transfer Agreement is signed in principle. A federal Order-in-Council
authorizes Minister of Indian Affairs and other ministers to treat Innu “as if they
were registered Indians living on reserves” but Innu are to continue paying tax,
unlike other First Nations. Provincial programs, including education, social services,
and policing, are exempt from the agreement. There is an impasse over jurisdiction
and funding responsibility and the Transfer Agreement fails. The Order-in-Council
placed restrictions on the Innu, not fully recognizing them as Aboriginal people
under the Indian Act and did not include the Innu into the Constitution Act (1982).
- 2002: Innu begin registering for the partial implementation of the Indian Act in
their communities and the creation of reserves. Innu families begin moving from Davis
Inlet to Natuashish, which will be an Indian Act reserve.
- 2003: Recommendation is made to the N-L Royal Commission on Renewing and Strengthening
Our Place in Canada for N-L to officially recognize all the Aboriginal Nations of
N-L since they constitute nations consisting of people holding Aboriginal rights46.
- 2007: United Nations Declaration on the Rights of Indigenous Peoples is adopted.
Canada refuses to sign the declaration. The Innu Nation of N-L continues under the
umbrella of the United Nations without recognition from Canada.
- 2008: Prime Minister Stephen Harper apologizes to Aboriginal Peoples in Canada for
the policy of forced assimilation and residential schools. Prime Minister Harper
refuses to recognize the suffering of Inuit and Innu of Labrador in residential schools49.
- 2008: The Innu sign the Tshash Petapen agreement with the Government of N-L and the
Energy Corporation of Newfoundland and Labrador. It is an agreement in principle
for the development of the Lower Churchill River hydro-electric project and compensation
to the Innu Nation for the project’s impact. To the date of writing, the details
for this agreement have not been finalized and it has not been ratified by the Innu
Nation of N-L.
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:
- Universal Declaration of Human Rights (1948)
- Convention on the Prevention and Punishment of the Crime of Genocide (1948)
- C169 Indigenous and Tribal Peoples Convention (1989)
- Declaration on the Rights of Indigenous Peoples (2007)
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
Article 3: “The following acts shall be punishable:
- Conspiracy to commit genocide;
- Direct and public incitement to commit genocide;
- Attempt to commit genocide;
- 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:
- 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.
- 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.
- 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.
- 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
- Aboriginal people are inherently inferior and incapable of governing themselves;
- 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;
- 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,
- 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:
- 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:
- The Indian Act;
- Forced Residential Schooling;
- Forced Relocations; and,
- 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:
- 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,
- 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:
- Breach of Promise: Unfulfilled treaties deny Aboriginal rights.
- Exclusion: Creating legislation that does not recognize Aboriginal rights.
- Legislation: Creating legislation against Aboriginal rights and culture, the Indian
- Cultural Destruction: Cultural genocide from residential schools and provincial child
welfare agencies, the Indian Act, forced relocation and provincial education systems.
- Attrition: Selective funding and infrastructure development to support non-Aboriginal
definitions of development and civilization.
- Acquisition: Crown ownership versus inherent and international Aboriginal rights
to land and resource ownership.
- Apathy: Indifference to adversity caused by the refusal to recognize the Innu Nation
and Aboriginal Peoples of Newfoundland and Labrador.
- 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
Meaningful Consultation will be an essential part of the process for removing EFABs
and accommodating Aboriginal rights in Canadian legislation, regulation, services
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:
- Trade and commerce;
- Traditional Food;
- Resource Management;
- Government; and,
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:
- Recognize Aboriginal law, regulation and roles; and,
- 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
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:
- The right of Aboriginal Peoples to represent their culture and history; and,
- The diversity of Aboriginal Peoples, regions and communities.
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:
- Aboriginal Nations, Canada must respect culture;
- Aboriginal Culture, Canada must respect Aboriginal law and regulation; and,
- Aboriginal Law and Regulation, Canada must respect tradition and custom.
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
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
See Reference Footnotes
© Christian Aboriginal Infrastructure Developments
Last Updated July 24, 2015