Brad:
>Another popular idea I find dubious is
>providing reparations to the living for the
>harms done to the dead. Should a [black, indian,
>etc.] M.D., lawyer, university professor,
>etc. be paid reparations for the harm
>done to his or her ancestors, who, being
>dead, are presumably beyond the ability of
>earthly things to affect them any more?
>
In the case of the settlement of aboriginal claims in Canada, it is not a
case of reparations to the living for what was done to the dead. It is a
matter of recognizing longstanding rights which aboriginal people have held
since time immemorial and which are now entrenched in the Canadian
Constitution. The dead held these rights, unique to aboriginal people, and
passed them on to the living. The living are now able to enter into a
negotiating process in which the rights can be defined and distinguished
from more general rights held by the Canadian population as a whole. In
this process, certain things to which the special rights apply, such as land
and resources, may be relinquished or become part of the public domain, and
it is for this that monetary compensation is paid.
Canadian treaties and claims settlements, which have acknowledged aboriginal
rights, have a rather mixed origin. The earliest treaties in which England
was the main colonial power, those in the Maritimes, did not deal with
rights but were essentially treaties of peace and friendship. In colonial
French Quebec, the process was similar. Initially, the French saw Canada as
fully occupied, and apart from establishing centers for trade with the
inhabitants, did not expect to settle extensively themselves. In both
regions, Indian people were viewed as self-governing nations, and there was
no question of having them relinquish their rights to land and self-
government. However, both regions were in fact settled. While rights were
not extinguished, aboriginal people were pushed to the margins of society.
Subsequently, reserves in Quebec and the Maritimes were created in a variety
of ways, including lands set aside by the Catholic Church or lands
purchased by the Government of Canada.
For much of the rest of Canada, more clearly defined constitutional and
legal bases for settling aboriginal claims exist. Following the conquest of
Quebec, what is known as the Royal Proclamation of 1763 was issued by King
George III to establish a boundary between the colonies (including Canada)
and Indian lands. The latter generally lay west of Quebec (excluding
Rupert's Land) and the Appalachian Mountains (in what soon after became the
United States). Whites who had settled in Indian lands were asked to leave
(whether they did so or not is another question). On their lands, as defined
in the Royal Proclamation, Indians should not be "molested or disturbed".
Purchase of the lands could only be made by the Crown. If Indians wanted to
sell their lands, they could only do so if via an assembly for the purpose.
Only specially licenced whites could carry on trade with the Indians.
Rupert's Land was excluded from the Royal Proclamation because it was
already under Royal Charter held by the Hudson's Bay Company.
The Royal Proclamation was reinforced in western and northern Canadian lands
by negotiation by the 1870 Order in Council by which the Northwest
Territories (originally the North-Western Territory, which then included the
prairies) and Rupert's Land were admitted into Confederation. It again
recognized aboriginal title and provided that such title could not be
extinguished except by negotiation with the Crown. However, the precise
legal meaning of this OIC, and what requirements and limitations it imposes
on government in settling aboriginal claims, is a matter of some ambiguity.
More recently, Section 35 of the Canadian Constitution Act (1982) recognizes
two sources of Native rights. One is treaty rights, which consist of land
ownership, harvesting, and limited environmental and wildlife management
rights. It should be noted that Metis and non-status Indians are included as
native people in the Constitution Act along with Indians and Inuit.
While recognition of aboriginal rights has a long history in Canada, it is
only recently that government dealings with these rights has been a process
which might be termed "reasonable" or "fair and equitable". Initial rounds
of treaty making in Ontario in the 1820s were essentially land grabs.
Reserves granted to Indians at the time were small because they were viewed
as being places of transition into assimilation. The "numbered treaties"
which were signed with Indian people in western Canada beginning in
approximately 1870 were negotiated with a people who had no options but
acceptance of the government's terms. Their numbers had declined, the
buffalo herds were vanishing, and their way of life had effectively ended.
Again, assimilation was felt to be but a matter of time.
The event which turned matters around and led to a more just process was the
Calder Case, 1973, in which the Supreme Court of Canada, dealing with a case
involving the Nishga of northern British Columbia, officially recognized
"aboriginal title" to lands. This was further affirmed by a series of legal
judgements: a restraining order granted to the Northwest Territories Indian
Brotherhood which temporarily froze the development of lands in the
Mackenzie Valley; an injunction granted to Native people in Quebec which
briefly halted the construction of the James Bay hydro project; and a
judgement on aboriginal land rights in a case dealing with uranium mining in
the vicinity of Baker Lake. It was underscored by the report of the
Mackenzie Valley Pipeline Inquiry, which not only emphasised the validity of
native title but insisted that no major development take place in the
western Arctic until native land claims had been settled.
So, as you can see from this brief review, it is not a question of feeling
an obligation to souls long departed, but of having a continuing and binding
obligation to their descendants who are still among us, and who have
produced shrewd politicians, negotiators and lawyers, and are willing to
drive us to the wall in the hope of getting what they know is theirs.
Ed Weick
