ABORIGINAL RIGHTS-THE ISSUE

To understand the native relationship to land, one has to disregard entirely the European concepts relating to land. The European concept of land is in terms of possession and security of identity. Land "development" (a notion inconceivable to Indians) is, for the white man, often related to a sense of order based on domination. Possession in terms of deed often carries with it the "right" to exploit that land for a short-term personal gain. This "exploitation right" has been only slightly modified in recent times by a sense of ecology.

To the native, the concept of land has a direct relationship to the native sense of being-in-itself¤"the country he inhabits is at the same time the topography of his unconscious . . . thus does the primitive man dwell in his land and at the same time in the land of his unconscious". The Indians say the same thing in a slightly different way: "We are telling you again and again that, without the land, Indian people have no soul, no life, no identity, no purpose . . . we are people of the land. The land is for our children, not for our sale. The land is part of us and we are part of it." The consequences, for the Indian, of forcible disconnection from the land is a spiritual crippling that is only too obvious in today's native communities. The Metis more readily grasped the nature of the white man's relationship to the land than the Indian did and were not prepared to accept "treaty deals" with the government. The Metis' natural affinity to the land and their orientation to it can only be compared to the white man's relationship to the air he breathes.

The concept of "title to land" was alien to the native consciousness, except as a natural birthright. The emphasis, in native culture, was on use of land, not formal possession, a cultural manifestation the eastern land-grabbers were quick to exploit in Manitoba and Saskatchewan. The Metis assumed title in the traditional way of the Indian, by reason of their occupation and use. Only the white men and a few of the better educated or suspicious Metis cared about title by law. There is no question that, in the matter of land claims in Canada, morality is on the side of the Metis and the law is on the side of the white man. How Canada decides to deal with this question will

determine "the future of Canada, the quality of its' democracy and its' reputation, real or invented for justice".

ABORIGINAL RIGHTS-THE FACTS

The first reference to native lands in North America came from the pen of Pope Paul III in 1537 in response to Spanish concern over the status of these new people. In his Bull Sublimis Deus he said, "Indians are truly men, they should enjoy their liberty and possession of their property". Both English and French royalty assumed title over land in North America occupied by their respective nationals. In 1623, King Louis XIII of France gave all the territories of Hudson's Bay and James Bay to La Compagnie de la Nouvelle-France. The area eventually transferred to England and in 1670 granted to the Governor and Company of Adventurers of England Trading into Hudson's Bay by Royal Charter.

A hundred years later concern over the Status of Indian lands in the British North America led to the Proclamation of 1763: "The several nations or tribes of Indians with whom we are connected and who live under our protection, should not be molested or disturbed in the possession of such parts of our dominion and territories, as not having been ceded to us, are reserved to them, or any of them as their hunting grounds".

The proclamation was intended to set aside land for Indians which "private persons must be forbidden to make purchases or settlements until treaties have been made with the various tribes and satisfaction has been given them for their land". Notwithstanding, Lord Selkirk, just forty-eight years later in 1811, dealt himself 116,000 square miles of land for two dollars and fifty cents, with the Hudson's Bay reserving ten percent for itself as retirement lands for its' employees. The Indians and Metis, of course, had nothing to say about it.

Beyond the proclamation of 1763, the "law of aboriginal rights" applies throughout Canada. The source of those rights is the law of nations, now incorporated into the common law of Canada and confirmed by colonial and Canadian executive and legislative policy. The Metis are in a unique situation but connected to aboriginal rights through their mothers' bloodlines. "The general attitude of government had been that all Metis were treated as having native rights".

In 1906, an order in council determined that the Indian and Metis of northern Saskatchewan still held "aboriginal title" and that it was 'Lin public interest that the whole of the territory be

relieved of the claims of the aborigines". In 1944, Judge W. A. MacDonald of the District court of Alberta, found "that whenever it became necessary or expedient to extinguish Indian rights in any specified territory, the fact that the Halfbreeds also had rights by virtue of their Indian blood" was invariably recognized. These rights co-exist with the rights of Indians. It was considered "advisable, whenever possible, to extinguish the rights of the Halfbreeds and Indians by giving them compensation concurrently".

The nature of aboriginal rights "stems from a basic fact of Canadian history, that the Indian and Inuit peoples were the original, sovereign inhabitants of this country prior to the arrival of the European colonial powers". Title is referred to as "a personal and usufructuary right" or the right of use and occupancy. A tribe could not surrender title but only agree to surrender or limit its' use of the land.

The Proclamation of 1763 declared that land rights could only be alienated at a public meeting or assembly, called for the purpose, and then only to the Crown. Only the British Sovereign had right to extinguish aboriginal title either "by sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy".

The Government of Canada extinguished aboriginal title by treaty in some parts of Canada. In a few cases, the Metis adhere to Indian treaties. The present status of aboriginal rights for the Metis is summed up by Cumming: "Those Metis who have received neither scrip nor land nor treaty benefits, still arguably retain aboriginal claims which have either not been extinguished or for which a claim for compensation is outstanding". The aboriginal rights claims of the Metis is not a question of ownir~g or even completely controlling occupied lands. "They seek not only a role in determining the ways in which the land and other resources are used, but also a just portion of the benefits derived from their exploitation."

ABORIGINAL/METIS CLAIMS

Quite apart from the "reality" of aboriginal rights being recognized and satisfied by the Canadian Covernment, the concept is the focal point of a great deal of modern Metis organizational strategy. The rights issue is an effective standard or "kukwium" to organize the Metis around a "cause". It not only gives the movement international status in terms of Third and Fourth World development, but becomes a national cause

with many provincial and local implications. It certainly becomes a bargaining tool for Metis seeking a better position in Canadian life. As an organization tool it is extremely effective in providing an issue, or cause, that every Metis can identify with¤a cause that is greater than themselves.

The status of aboriginal/Metis claims in pre-Riel days gives us a clearer picture of the nature of these claims. Following the collapse of the Selkirk project, Cuthbert Grant, as detailed earlier, was granted land in the Red River area on which Grantown was founded. With the amalgamation of the Northwest and Hudson's Bay Companies, the Bay encouraged the move to the Red River by making a grant of 25 to 30 acres to "heads of families" and several other small settlements were developed at St. Boniface, Fort Pelly, and Fort Ellice. When the Bay purchased the Selkirk settlements lands back in 1835, land was sold and granted on 999 year leases. In 1845, the Metis, as owners of their land, signed treaties with the Sioux.

After Louis Riel, the Manitoba Act of 1870, Section 31, defined the status of the Metis claims in this manner: "And whereas it is expedient, towards the extinguishment of Indian title to the lands in the province, to appropriate a portion of such ungranted lands to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the Halfbreed residents, it is hereby enacted that under regulations to be from time to time made by the Governor General in Council, the Lieutenant-Governor shall select such lots or tracts in such parts of the province as he may deem expedient, to the extent aforesaid and divide the same among the childrerl of the Halfbreed heads offamilies residing in the province at the time of the said transfer to Canada, and at the same shall be granted to the said children respectively in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council shall from time to time determine."

The chief basis of all Manitoba land claims, "the children of halfbreed heads of families" was the first of many 'catch 22' clauses that were to strip thousands of Metis of land that they thought was guaranteed by the Manitoba Act. The Act was revised by Order in Council in 1871, to state that "every Halfbreed resident in Manitoba on July 15th, 1870 was eligible to receive a share of the land", but not before hundreds had left Manitoba in disgust over the only too intentional confusion created by the government. In fact, no land was actually distributed until a full five years later in late 1876¤200,000 acres of which was advertised for sale in Ontario realtors' advertisements.

It did not take long for the vultures to descend; by the time the Hudson's Bay, the Selkirk settlers, the Canadian Pacific Railroad, the Church and the crown lands were all established in Manitoba, there was precious little left for the Metis. Those Metis who were able to hold out long enough to establish their title were offered scrip instead of title. T his practice of the issuance of scrip led to a horrendous range of exploitation and downright illegal dealing as the Canadian version of the carpetbaggers seized land in hopes of a land boom when eastern settlers finally arrived. The Metis land was put up for sale at fifty cents an acre.

In Saskatchewan, the scenario was repeated in 1885 creating the same kind of confusion as to whether or not the Metis claims had in fact been extinguished in both provinces. When the vultures and carpetbaggers thought that the carcass was picked clean, they stopped making treaties in 1923 and in 1927 made it illegal for natives to raise money among themselves to prosecute land claims.

The basis for the Metis claims fall into four categories: (1) claims based on aboriginal rights; (2) claims based on unjust distribution of land or scrip; (3) adhesions to Indian treaties by Metis; (4) miscellaneous individual or small group claims based on local conditions. The courts have rarely rejected the Metis claims outright in terms of validity or viability, but have been content to rely on the hopelessly confused legal, political and departmental mechanisms to impede claims.

The Indian Act and the British North America Act established a policy of paternalism toward native peoples and only too often led to the exploitation of Indian land with little, or token, participation by the Indians.

The basic government policy was assimilation, as quickly as possible. The Metis became victims of frequent federal/provincial buck passing, especially since the Metis were judged by the federal authorities as non-native, therefore "a provincial responsibility". Indian and Metis claims had been handled, up until 1965, by a three-man Board of Arbitrators when it was expanded to a five-person Indian Claims Commission and later, in 1971, to an Indian Claims Commissioner.

The Government's 1969 White Paper suggested sweeping changes to the Indian Act and was a restatement of the assimilationist policies of the past. The Indian people rejected the White Paper totally and responded with their own papers called, respectively, the Red and the Brown Papers; Prime Minister Trudeau flatly denied that Indian and Metis had any aboriginal rights claims at all in a modern Canada. However, he

was forced to change his mind as a result of several court decisions that inferred, if not admitting outright, aboriginal rights. The Federal Government announced in 1973 that it was prepared to "negotiate settlements"¤in effect to return to the business of making treaties.

The Native Council of Canada presented a brief to the Prime Minister in April of 1973 outlining the basic position of the modern Metis. "Our people are found across the entire length and breadth of this country, very often regarded as squatters on land which their ancestors have always used and occupied .. . They have been tricked out of it or deprived of it by one means or another."

The Native Council of Canada warns that the same mistakes are being made today as in the 1870's and that "solutions cannot be imposed on us however well-meaning an authority from on high. Solution must arise from our own communities, and attuned to our own conception of our needs and possibilities". The solutions suggested have a much broader base than specific acreage in land or dollar figures in compensation. The brief claims that, since the government is responsible for the legal tangle that the native claims must go through, the government should pay for historical land claims research projects carried out by the Metis organization.

The land claims have, since the energy crisis, become a political issue, in the context of the Northwest Territories as an energy source. In the political arena are: native organizations, federal and provincial governments, international corporations, ecologists, churches, judges, various commissions, as well as socio-political hustlers of one sort or another getting into the act. The implications are deadly serious for the native people who have for generations lived in the North and see it as their own land. Any land claim settlement in the North requires a critical evaluation by the native people, themselves, of how they want their future and their children's future to unfold. The problem facing the native is developing a base from which to ask the appropriate 4uestions before they can identify the proper answers.

The Berger Commission in the McKenzie Valley, the Alaskan and James Bay Settlements and the machinations in Northern Manitoba, British Columbia, the Yukon and the Northwest Territories are all useful vehicles for the demonstration of the role of land claims in modern Canada. The Native People in all these areas are categorically opposed to the imposition of decisions by a "foreign" source without the involvement of the people in the decision-making process in a meaningful way. The

government could solve this problem, along with most of the issues, slmply by providing the people in the area with the responsibility of developing an alternate plan. The real issue is not whether technology is good or bad, but rather whether or not the native people are going to have access to the decision-making process. The question is not whether there is going to be any development in the north, the question is: are native people going to help decide what kind of development is going to take place?

Landmark solutions have surfaced in recent years: the Nishga claim, for instance. The Nishga people of Northwest British Columbia have been fighting whites for their rights since 1887 and have occupied their land for an estimated 10,000 years without signing a treaty with anyone. Over several generations and in a variety of courts in Victoria, London, England, and in the Supreme Court of Canada, the Nishga have fought for their rights. In an historic split decision, the Supreme Court in 1973 technically ruled against the Nishga. However, the question of aboriginal rights was established as an unresolved but viable issue. The Alaska Native Claims Settlement Act of 1971 radically departed from other settlements and provided for the land and money with native corporations to administer them. The James Bay Agreement not only established the significance of aboriginal rights but took a few faltering steps toward providing a framework in which Indians themselves played a role in developing the terms of the agreement to foster the maintenance of their present lifestyle. The natives of the Northwest Territories, in the formation of the "Dene Nation" concept provided another key idea in the development of characteristically native solutions to modern dilemmas.