Status of the Aboriginal People in the Canadian Federation

Status of the Aboriginal People in the Canadian Federation

Introduction

The Aboriginal people are the original inhabitants of the land that is currently known as Canada. They make around 5% of the national population in the country. Despite being the original inhabitants of the land, the status of the Aboriginal people in the Canadian Federation has never been clear. This research paper seeks answers on the status of the Aboriginal people in the Canadian Federation. The paper also explores whether granting the Aboriginal people full autonomy will fully solve their problems. Specifically, the paper will focus on the measures that the Canadian government has taken to address the concerns and the challenges faced by the Aboriginal people. Research paper reviews some of the available literature on the subject to determine whether self-governance will be the only way of responding to the needs of the Aboriginal people. The research paper also seeks to find out other measures or approaches that have been considered in an attempt to solve the problem faced by the indigenous people. With the help of multiple scholarly articles, the research paper reviews the opinions and suggestions of different authors regarding the best approach that should be taken in solving the challenges faced by the indigenous people.

Relationship between Canadian Aboriginal People and the Canadian State

Understanding the relationship between the Canadian aboriginal people and the Canadian state is essential when seeking solutions to the challenges that face the Aboriginal people. Uribe (2006) explores the relationship from the point it began to date. As noted earlier, the Aboriginal people are the original settlers of the land that is now referred to as Canada. They inhabited the land before the arrival of the European settlers. Uribe (2006) posit that they had their governance structures and legal systems through which they could solve their problems. When the Europeans settled in Canada, the indigenous people were faced with tough decisions. They had to decide as to whether to assimilate to the culture of the incoming Europeans or to keep their own culture and ignore the culture and systems that were being instituted by the settlers (Uribe, 2006). Deciding as to which approach to take was the source of conflict between the Aboriginal people and the settlers. Since the Settlers took control of the land and instituted their governance structures and legal systems, the Aboriginal people were ignored by the new structures and systems that were put in place. Their relationship with the European settlers, beginning with the French who were the first to arrive and later on the British, has been strained. Enactment of statutory bodies in the country has ignored the rights of the indigenous people in Canada. There is no protection or recognition for the rights of the Aboriginal people as compared to the rights of the settlers in the country.

The legal and political framework of the relationship between the aboriginals and the Canadian state dates back to the First Nations law. The law is incompatible with the common law, and as a result, it has been ignored because it is considered inferior. According to Uribe (2006), aboriginal leaders would like Canadian courts to use First Nations law in solving disputes that are related to the rights of the indigenous people. Uribe (2006) notes that reviews have been done to the Canadian case law so that First Nations principles can be acknowledged and be used in the regulation of conflicts involving the indigenous people. The Supreme Court of Canada has recognized the First Nations’ laws, and that is important in getting recognition of the law by non-aboriginals.

The article by Uribe (2006) explores the relationship between aboriginals of Canada and the Canadian state through a review of literature on the subject. The relationship between the two parties involves negotiations that are intended to create a road to self-governance. According to Uribe (2006), the Charlottetown Accord of 1992, demanded the recognition of the rights to self-governance food aboriginal people. It also required that a third order of the government be created as an indigenous government. It shows the existence of a strong belief that granting of self-governance to the Aboriginal people would solve the problems they face.

Murphy (2005) also explores the relationship between indigenous people and the Canadian state. From the onset, Murphy (2005) notes the attitude that the Canadian state had towards the aboriginals. The general feeling in the Canadian leadership was that the indigenous people, such as the Nisga’a, would disappear by assimilating into the majority society. Consequently, the government believed that it was its role to catalyze the process of assimilation (Murphy, 2015).  It took several forays by the Nisga’a to Ottawa and years of struggle advocating for expanded land allocation and powers of self-governance for the indigenous community in Canada and British Columbia to sign the Nisga’a final agreement. The agreement constitutionally protected the Nisga’a’s right to self-governance. The agreement was signed in 1998, and it became law in the year 2000.

Murphy (2005) concludes that the Aboriginals in Canada cannot form their autonomous government owing to their limited numbers in terms of population. He contends that they are only a few hundred and, as such, would not be able to even fill up all the government positions in an autonomous government. Therefore, he suggests that they should have the autonomy to participate in decision making in the Federal Government and have the right to be consulted when important decisions are being made. The assertions are similar to those made by Uribe (2006), who also believes that the indigenous people may not have the capacity to form an autonomous government that will stand on its own without the support of the Federal Government.

The call for self-determination among the indigenous people in both the United States and Canada started several years ago. However, as the society has continued to progress, and the indigenous people continued to experience marginalization, the calls for autonomy for the communities have intensified. Papillon ( 2011) explores the multi-level governance of the indigenous people in Canada and the United States. The author notes that there are considerable institutional resistance calls for indigenous people’s autonomy in both Canada and the United States. Therefore, indigenous people have had to negotiate governance arrangements that have allowed them to gain some political significance as well as some political autonomy. For instance, through the self-governance policy in Canada, indigenous communities have made arrangements within the Federation. The arrangements are integrated into treaties that are protected by the constitution, thereby giving the indigenous communities some degree of jurisdictional autonomy.

The integration of the indigenous Communities into the Federation is limited in the United States as compared to Canada. According to Papillon (2011), First Nations governments in Canada have realized a more formal integration into the Federation. Therefore, they have a significant role to play in the policy formulation process, especially on issues within their jurisdictional boundaries. The author concludes that the relationship between the Federal Government and autonomous indigenous people’s government can be improved progressively by making changes to the constitution and allowing for increased participation of the aboriginal people’s representatives in decision-making.

The Aboriginal people and the Canadian government have signed many treaties. According to Abele and Prince (2003), the treaties are the cornerstones of Canada’s constitutional order. The agreements play a significant role in facilitating the relationship between the Aboriginal governments and the Federal Government. The authors have considered practical ways in which indigenous people could take part in the council of the Confederation. Abele and Prince (2003) wrote their work following an agreement by Canada’s Provincial and Territorial Premiers to create a new Council of the Federation. The purpose of the council is managing relations and building constructive cooperation between the Provincial Governments and the Federal Government. Therefore, the paper was written to provide commentaries that would encourage broader knowledge and discussion on the proposed Council.

The treaty rights of the indigenous people are recognized in the Constitution Act 1982. Supreme Court decisions have also reinforced and elaborated on the rights of the indigenous people. Abele and Prince (2003) express some concerns about the above-proposed council from the perspective of the indigenous people’s rights and self-governance. The concerns include the fact that the focus of the council has been the relationship between the provincial governments and the Federal Government. There is no mention of the Aboriginal governments as being part of the focus for the council. None of the other issues identified as being crucial include agendas such as land claims, self-governance, and the situation of the Aboriginal people who live in Canadian urban areas. Therefore, the council will not help in improving the relationship between the Canadian States and the Aboriginal governments. The authors suggest consultations with regional associations to come up with a council that will address the needs of everyone. Abele and Prince (2003) support granting full autonomy to the indigenous people’s government.

Case for Self-Determination

The discussion on the concept of aboriginal self-government in Canada has been in many forums. Abele and Prince (2006) explore four pathways that they believe can lead to aboriginal self-government in Canada. The authors place the models to self-determination in a historical context. The first model is mini municipalities operating under the Federal Government, as is the case currently. The second model would be as a national entity that would add up to the Canadian federalism. The third model is a fully developed third order of government in the Federation. The third model is also known as adopted federalism. The final model is an aboriginal government and The Crown in Canada. It would Mark the formation of another nation that is separate and independent of Canada. Abele and Prince (2006) have shown in the analysis that several ways exist through which the aboriginals in Canada can gain self-governance. The path that the Canadian state and the aboriginals will take is up to them. Any of the suggested pathways, when backed with legal reforms, can lead to a desirable result.

The Supreme Court of Canada, Maryland, made a judgment on June 26, 2014, regarding the Aboriginal title. According to Mccrossan and Ladner (2016), the ruling in Tsilhqot’in Nation v. British Columbia (2014) gives recognition to the Aboriginal title under section 35(1) of the Constitution Act 1982. The recognition is believed to have provided the Aboriginal people with the expanded decision-making control over their territories. Understandably, the acceptance of the Aboriginal title has led to a stronger push for the autonomy of the aboriginals. Mccrossan and Ladner (2016) review the text of the ruling and explain the logic that underlies the court decision.

Among some of the critical conclusions that Mccrossan and Ladner (2016) make out of the review include the shifting conceptions in the judiciary that are leading to the recognition of the Aboriginal people. The authors also note that there is a deepening understanding of indigenous legal orders. Mccrossan and Ladner (2016) take note of progressive colonial Canadian governments and lawmakers who were often ignoring indigenous territories and legal systems or sometimes had been unable to comprehend the needs of the indigenous communities. In conclusion, the authors believe that it is vital for indigenous people to be granted autonomy when it comes to jurisdictional and policy issues.

The autonomy of the indigenous people has been an issue of concern not only for the countries in which search people reside but even to the global bodies such as the United Nations. Morales and Nichols (2018) go over a speech that was presented to the United Nations general assembly in 2017 on the 150th anniversary of the Canadian constitution by the prime minister of Canada, Justin Trudeau. In the speech, the Prime Minister presented a vision of a plurinational state. He envisioned that such a nation could only be brought together through truth and reconciliation. The Prime Minister was calling for Canadians to the right the wrongs of the past that constituted a pattern of colonialism. According to Morales and Nichols (2018), reconciliation is Twitter improving the relationships between indigenous people and the Canadian state. Reconciliation will also improve the relations between the autonomous indigenous governments, the provincial governments, and the Federal Government. Morales and Nichols (2018) believe that recognition of the challenges that the aboriginals go through is the first step towards working on a solution to the problems. Whereas the authors acknowledge that granting sovereignty the aboriginals is a long process, they reckon that it is an important one to inform the marginalized aboriginals in leadership and decision-making. The same sentiments are shared as noted above by MacCrossan and Ladner (2016), who also supported the idea of the autonomy of the aboriginals while maintaining association and cooperation with the Canadian state.

The aboriginals people have inherent rights in the lands that day you can play. Just like any other human being, they have a right to seek development for themselves and the expansion of their personalities. It implies that they have a right to demand autonomy in terms of decision-making and participating in important policy formulations. According to Peach and Rasmussen (2005), it is the nature of humans to seek assistance from society. However, men cannot always seek help from society; they also have to be able to participate in solving some of the challenges that they face. As a result, Peach and Rasmussen (2005) posit that the indigenous community has to be given a professional opportunity to engage in collective decision making, especially on issues that affect them in society. The authors propose that each community should have the right to self-determination since it is inherent in building a liberal and democratic society. Recommendations provided by the authors in their article concurs with other proposals that have already been provided by other authors such as Morales and Nichols (2018), who also conquered on the need for self-determination for communities that have lived under oppression for a long time.

Communities that feel alienated in a society shy away usually, from participating in national issues such as general elections. Marginalized communities may feel like they are not part of the greater population and, as such, may not see the need for participating in national events that they believe will not benefit them. According to Williams (2017), the aboriginals’ voter turnout in Canada has always been low as compared to non-aboriginals in the country. As Williams (2017) explains, there have been different explanations for the discrepancy in voter turnout between the aboriginals and the non-aboriginals. One of the reasons given is that the aboriginals consider themselves as being distinct from the rest of the population in Canada, and as such, there is voter apathy in participating in general elections involving the entire country. The author also provides a second explanation basing on the alienation hypothesis. Under the theory, the aboriginals consider themselves excluded from the political, social, and democratic processes in the country, and as such, they do not trust the institutions created out of electoral processes. Therefore the author suggests the inclusion of the aboriginals into the structures of governance and Society. Just like Peach and Rasmussen (2005) noted, the author concurs that full autonomy to the aboriginals will help in getting them to participate in national events as they will feel that they have a voice on the table when important decisions made. They will also have representation on bodies created as a result of electoral processes.

In most countries around the world, communities have found themselves leaving beside other communities that they did not choose. Such communities have found a way of coexisting without having many problems. Cairns (2005) explores the factors affecting coexistence between First Nations and the Canadian State. The issue of Aboriginal Estate relations has always been a challenge. Cairns (2005) notes that the difficulty is primarily due to the different approaches taken by the contemporary state, which is more modern and the indigenous nationalisms, trapped in the old-fashioned way of doing things. Therefore, the paths taken by the two parties is the main stumbling block to better relations between the aboriginals in Canada and the Canadian state. Part of the country still thinks that the differences between the aboriginals and the Canadian state should end through assimilation. However, the aboriginals believe that they can keep their identity and live in the same country as the settlers. As noted by Mccrossan and Ladner (2016), it is crucial to keep Canada as one nation that can accommodate all the people within its borders regardless of their cultural identities. However, at the same time, Cairns (2005) concurs that it is vital to grant autonomy to all subgroups that are living within the country and enabling them to make decisions that impact their wellbeing.

Rights of the Indigenous People

One of the issues that suffice when discussing. The challenges faced by the Aboriginal people in Canada is the violation of their rights. One of the reasons that make the Aboriginal community agitate for autonomy and self-governance is the violation of their rights by governments constituted by a majority in the population. Anaya (2014) notes that the relationship between the aboriginals and the Europeans in Canada has had positive aspects. They have had political corporations informed military Alliances when necessary. They have also had policies that facilitate their peaceful co-existence. These policies include treaties that have been signed between the aboriginals and the European settlers. Anaya (2014) posits that there are approximately 70 treaties approved before 1975 and they form the basis for the relationship between the aboriginals and the Canadian state. Through the treaties, the aboriginals have been able to protect some of their rights, such as not having their lands taken away. The report by the special rapporteur for the United Nations indicates that the rights of the Aboriginal people in Canada a relatively protected. Canada has extended constitutional protection to the rights of the indigenous people. However, despite the protection, there is still a need for the aboriginals to have autonomy so that they can have better control of their affairs.

Canadian law recognizes self-government for indigenous people. However, according to Stacey (2018), the role of recognition is limited. According to the author, Canadian law does not have a clear recognition of the inherent rights of aboriginals’ self-governance. The political autonomy of the indigenous community depends on their agreement with all actions taken by the provincial or federal governments. Stacey (2018) note that the distribution of legislative power alienates the aboriginals, and hence they are excluded from the Architecture of government. Unlike the findings by the UN special rapporteur Anaya (2014), the findings by Stacey (2018) indicate that after all, the aboriginals still have a long way to go in terms of being granted their rights. As such, the clamour for self-autonomy is a reasonable move for a community, oppressed for a long time. They must acquire the powers necessary for them to participate in the legislative process of the country.

Stacey (2018) note that although the Supreme Court has created some legal and relevant identity for the indigenous people that have allowed them to claim some of their rights, a lot still needs to be done to ensure that the Aboriginal community enjoys their full autonomy as the original settlers of the land. The author concludes that granting full independence to the Aboriginal people could be the solution to the challenges that they currently face.

For any country that has had a history like Canada and other countries with aboriginal populations, reconciliation is essential in bringing a nation together. Blackburn (2007) explores reconciliation in Canada. The author is mainly concentrated on the Nisga’a treaty between the provincial government of British Columbia and the Federal Government of Canada. The treaty negotiated over a period that lasted almost two decades, and an agreement reached in 1998. Blackburn (2007) note that the deal was conferred with the primary intention of reconciling and correcting past mistakes. Reconciliation was intended to produce a harmonious relationship between the aboriginals and non-aboriginals. Blackburn (2007) posits that reconciliation is a modern way of legitimizing a political process. The author here takes a different approach from that taken by the other authors reviewed above. Blackburn (2007) believes that reconciliation can be used to correct the mistakes of the past and have both the Aboriginal and non-aboriginal living together in harmony without pursuing the issue of jurisdictional autonomy.

Conclusion

The goal of this research paper is to answer the question as to what the status of the aboriginal people in Canada is and as to whether full autonomy will fully solve their problems. The issue regarding the Aboriginal population and their self-governance is an important one, and it received the kind of attention that it deserves. Several scholars and global organizations such as the United Nations have investigated the status of the Aboriginal population only in Canada but also in the United States. As can be expected, the different scholars have different opinions regarding the condition of the Aboriginal people and the actions that can be taken to solve the problems adequately.

All the authors reviewed in this research agree that there is a problem and that the Aboriginal people deserve a right to be involved in decision-making and policy formulation on issues that concern them. Murphy (2005) is one of the authors that strongly believes that the aboriginals should be granted autonomy and that they should have legislative representations. Abele and Prince (2006) have the most comprehensive suggestions for solutions to the challenges faced by the aboriginals. They suggest four paths to self-governance for the aboriginals. Whereas they have not stated their preference of the four, all of them seem to be viable solutions that can solve the current problem. The general concurrence among the authors is that there is a need for self-autonomy among the Aboriginals so that they can enjoy their rights fully.

References

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Abele, F., & Prince, M. J. (2006). Four Pathways to Aboriginal Self-Government in Canada. American Review of Canadian Studies, 36(4), 568–595. doi: 10.1080/02722010609481408

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Blackburn, C. (2007). Producing legitimacy: reconciliation and the negotiation of aboriginal rights in Canada. Journal of the Royal Anthropological Institute, 13(3), 621–638. doi: 10.1111/j.1467-9655.2007.00447.x

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Stacey, R. (2018). The Dilemma of Indigenous Self-Government in Canada: Indigenous Rights and Canadian Federalism. Federal Law Review, 46(4), 669–688. doi: 10.1177/0067205×1804600411

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