Models of Co-existence:
A View from the Canadian Situation

Henry Stewart

Copyright (C) 1998 by the Slavic Research Center . All rights reserved.

   A review of the literature quickly shows that the number of models for co-existence for ethnic *1 minorities, changing over time and space, are many and various. It is therefore self-evident that there is no single model for national/ethnic co-existence. Even within the same socio-political milieu, the manner of co-existence among national/ethnic groups varies according to specific historical background, political dominance/subordination, and many other factors. A comparison of relationships between the Federal government and Quebec with that between the Federal government and the Inuit and Indians of Quebec vividly illustrates that point. While Quebec has wrested many concessions from the Canadian government, the voices of Innu and other Aboriginal groups in Quebec can hardly be heard above the furore over the secession of Quebec. *2

   In this paper, I shall present a brief overview of recent co-existence policies in Canada concerning Aboriginal peoples, and then discuss problems arising from those policies. Such a discussion will hopefully provide a basis for comparison and debate concerning models of co-existence between the Slavic Eurasian world and the "New World".

    How many models?

   The range of co-existence models range from methodical ethnocide, military subjugation, out and out assimilation, ethnic isolation, treaties, disregard or lip service to ethnic autonomy, multi-culturalism/ethnic pluralism and regional Aboriginal self-government and self-determination. The Aboriginal peoples*3 of Canada have throughout history been the subject of all the above models, with the exception of methodical ethnocide and national autonomous republics (Berger 1991, Dickason 1992, Frideres 1993, Stewart 1995, 1997a). Armed confrontation at Oka (Alfred 1995, Cape 1992, Miller 1991, Morrison (ed.) 1997), near Montreal, between the Mohawk Nation and Quebec police (later Canadian armed forces) and a few other instances notwithstanding, Aboriginal relations in Canada have been relatively peaceful. The last two decades in particular have witnessed changes in government policy that generally reflect Aboriginal aspirations (Graham et al. 1996).

   Before going on to a discussion of recent developments in Aboriginal affairs in Canada, a brief comment concerning the term "Aboriginal" is necessary. As mentioned above, several synonymous terms are used, often interchangeably (and I shall follow this practice in this paper). Herein, I shall use the term (capitalised) according to the following criteria: 1) those descendants of "original" inhabitants of a certain area, 2) those who constitute a minority ethnic group within a nation-state, and, 3) those who make claim to Aboriginal status. Also, such Aboriginal or Indigenous peoples maintain that, 4) an Aboriginal status necessarily presumes Aboriginal rights *4 in addition to civil and legal rights enjoyed by the general population. Aboriginal groups maintain that the existence of Aboriginal rights serves to distinguish Aboriginal peoples from immigrants and other ethnic minorities. This all suggests that aboriginality is a political and legal concept, rather than an inherent, or fundamental category. Whether aboriginality is an inherent, fundamental category or a status to be socially recognised and legally codified is a moot question. Personally, I contend that in order to become a viable reality, aboriginality is a status that must be acquired through social recognition and legal codification (Stewart 1997a). This position is basic to the arguments and views presented in this paper. From this position, I maintain, for example, that the Ainu in Japan make claim to an Aboriginal status, but that claim has yet to be realised.

Recent Aboriginal policy in Canada

   In 1969, the Canadian government issued its infamous Statement of the Government on Indian Policy, 1969 (White Paper on Indian Policy, Canada 1969), which called for the termination of special rights and status of Aboriginal peoples, thus eliminating the legal distinction between Indians (all Canadian Aboriginals subject to the Indian Act of 1876 [1985], see note 7) and other Canadians. However, vehement denunciation by Aboriginal groups forced the government to retract the policy, and since then Aboriginal policy has undergone three major changes.

   In 1974, the Canadian government established the Office of Native Claims to review, assess and negotiate specific claims by Native groups (Canada 1982). Specific claims are those based upon unfulfilled government obligations under treaty, requirements pursuant to legislation, and responsibilities regarding the management of Aboriginal assets. In other words, specific claims are those against promises by the government in treaties or by legislation for monetary payment and aid, rights concerning subsistence and land occupation, protection of Native assets, and other obligations not honoured. In response to Native discontent and criticism that the government was not fulfilling its commitments, the government set forth to review policy and procedures, as well as to clarify its policies. By this specific claims policy, Native individuals and groups present claims of unfulfilled government obligations to a review board, which determines whether the claim is valid or not.

   Concurrent with implementation of the Specific Claims policy, the Comprehensive Claims Policy was formulated (Canada 1973, 1981, 1985, 1987). By this policy, the government indicated its willingness to negotiate settlements with Aboriginal groups where rights of traditional land use and occupancy had neither been extinguished by treaty nor superseded by law. Until this policy was instituted, the Aboriginal rights of groups, such as those of British Columbia, Yukon and Northwest territories, northern Quebec, that were not covered by a treaty or other agreements had either been assumed to be non-existent, or subject to unilateral extinguishment. By the Comprehensive Claims Policy, cession or surrender of aboriginal title *5 was still a precondition of negotiations, but surrender was to be compensated by defined rights in specific areas. Recognition of self-government on a local basis, albeit public *6 in nature, was another notable point of this policy. Comprehensive land claims were negotiated and agreements signed for natives of James Bay and Northern Quebec, Yukon, Nunavut and other areas (for a review in Japanese of Canadian Aboriginal policy, see Kato 1990, Saito 1993, Stewart nd).

   In light of the restrictions and conditions imposed by the government upon Native claim negotiations, such as the extinguishment of aboriginal rights and the surrender of aboriginal title, the announcement in 1995 of a new Federal policy of Aboriginal self-government came as a surprise to many. This policy, stemming from a Royal Commission commentary (Royal Commission 1993) begins with a statement of Federal Government attitudes toward Aboriginal self-government (Canada 1995a, b, c, d, e):


past paternalistic policies of assimilation have been a failure;


the inherent right of Aboriginal self-government is recognised;


the recognition of Aboriginal self-government will form the basis of a new partnership between Aboriginal peoples and the Government of Canada, based on mutual respect, trust and Aboriginal participation in decision-making process;


negotiation for self-government will not follow a single model, but should be tailored to meet the unique needs and be responsive to particular internal situations - political, economic, legal, historical, cultural and social - of individual Aboriginal communities;


the inherent right of self-government does not include a right of sovereignty in the sense of international law, and will not result in sovereign Aboriginal nation states. Subject matters not to be characterised as either integral or internal to Aboriginal groups include powers related to Canadian sovereignty, defence and external relations.

Given the above, the following key principles will apply to self-government agreements:


the inherent right of self-government is an existing Aboriginal right under the Canadian Constitution;


self-government will be exercised within the existing Canadian Constitution;


the Canadian Charter of Rights and Freedoms will apply fully to Aboriginal governments;


due to federal fiscal constraints, all federal funding for self-government will be achieved through the reallocation of existing resources, as outlined in the 1995 budget;


where all parties agree, rights in self-government agreements may be protected in new treaties under section 35 of the Constitution, in addition to existing treaties and comprehensive land claims agreements;


federal, provincial, territorial and Aboriginal laws must work in harmony. Laws of overriding federal and provincial importance such as the Criminal Code will prevail;


the interests of all Canadians will be taken into account as agreements are negotiated.

   Rather than attempt at legal definitions of the inherent right of Aboriginal self-government, the new federal approach focuses on negotiations concerning matters internal to the group, integral to its distinct Aboriginal culture and essential to its operation as a government. Subjects such as governing structures, language, social services, marriage and other Aboriginal customs and laws, property, subsistence, etc. are to be the focus of negotiations. As of July 1996, this new policy has resulted in an agreement-in-principle with the Nisga'a Tribal Council of British Columbia (Canada 1996), and on-going negotiations with several other groups.

Legal precedent for co-existence models in Canada

   This brief review of policy concerning Aboriginal peoples in Canada shows a gradual shift from assimilation policies to partnership, or equal co-existence. Such recent developments in Aboriginal policy in Canada are the object of admiration and envy from ethnic minorities around the world. However, it is important to bear in mind that such policy changes do not necessarily reflect an altruistic, humanitarian predilection on the part of the Canadian government.

   The impact of court decisions concerning Native claims upon Canadian government policy is a factor not to be underestimated in policy development. In a series of trials, notably the 1973 Calder case, the concept of aboriginality, aboriginal title and rights, self-government and other claims have been examined and gradually developed in jurisprudence. Although all decisions have not always been to the favour of Aboriginal plaintiffs, the trend is toward the entrenchment of aboriginal titles and rights into judiciary law (Isaac 1995, Stewart nd).

   Going further back into history, it may be shown that Canadian court judgements and resultant policy are rooted in the Royal Proclamation of . That Proclamation, reflecting the common law tradition of England (Bartlett 1984, Slattery 1983:12), recognises the right of "Indians" *7 to unceded lands in their possession and states that such rights may be ceded only to the Crown. Interpretations of the Proclamation, foremost referenced to North American English colonies (but also influencing Australian and New Zealand policy), are often conflicting and have changed over time. Nevertheless, the Proclamation, often called the "Indian Bill of Rights" has been the starting point for discussion of aboriginal title and rights in Canada and other former English colonies (Borrows 1997, Dickason 1992:340-342, Isaac 1995:1-7, Royal Commission 1993, Stewart nd).


   Based on the discussion above of the Canadian situation, it could be suggested that aboriginality, Aboriginal status, Aboriginal title and Aboriginal rights in Canada all stem from a peculiarly Canadian milieu of unique legal, historical and socio-political institutions. Here, I take the position that aboriginality is not an inherent, fundamental entity, but is brought in existence and given meaning under specific socio-political processes. Aboriginality is a socio-political concept, and must be approached as such. Pursuing that position further, one could argue that Aboriginal status, title and rights must be analysed and interpreted in reference to each individual State. I shall refer to this position as "context bound" or particularistic realisation.

   Opposing such a position, the United Nations and Aboriginal peoples around the world posit that Aboriginal title and rights derive from natural law, and therefore transcend State interests ("transcendental aboriginality" or universal principle: Anaya 1994, Falk 1995, Morrison (ed.) 1997, Ortiz 1985, Thompson (ed.) 1987).

   The "context bound" model emphasises State sovereignty and the inviolable right to control internal affairs, but leaves domestic Aboriginal peoples subject to the whims of State-dictated norms and conditions, with little recourse to international succour. In Canada and other former English colonies such as New Zealand, Australia and the United States, where English colonists make up the population core forming an independent nation-state, and English legal tradition forms the basis of the legal system, a trend toward legal and social recognition of aboriginality and Aboriginal rights may be noted.

   However, in many other countries, the concept of aboriginality and Aboriginal rights is denied, or at best Aboriginals are relegated to a status similar to that of immigrants and other ethnic minorities. Adherence to the "context bound" model presupposes the prepotency of the state imposed in reference to particular historical and legal constraints. This position posits that Aboriginal groups are wholly subject to the sovereign state and standards established by the majority society, thus placing them beyond the realm of international politics.

   The "transcendental" model, incidentally derived from Canadian, United States, Australian and New Zealand experience, favours Aboriginal peoples, but in turn generates domestic problems. One problem is how aboriginality, title and rights are to be defined and incorporated into the legal system. All three are still nebulous concepts about which even Indigenous peoples themselves hold differing interpretations (Elias 1993, Gormley 1984, Purich 1991, Stavenhagen 1994, Stewart 1997a, Veber 1988, Yoshikawa 1995). Physical Aboriginality is easily perceived in Canada, where the majority society exhibits contrasting physical features derived from "beyond the seas". On the other hand, in Eurasia it is often the case that constituents of the majority society and minorities are both "Aboriginal" in the sense that, although not a minority, they are descendants of original inhabitants. Thus, interpretation and definition of "Aboriginal" in Eurasia, as well as Southeast Asia and Africa, could be tautological. Attempts to define Aboriginal peoples by an international standard are not progressing well. The problem of definition is so complicated that some have stated that "the concept of "indigenous" is not capable of a precise, inclusive definition which can be applied in the same manner to all regions of the world" (United Nations Working Group on Indigenous Populations, E/CN.4/Sub.2/AC.4/1996/2). The upshot is that a definition is essentially left to individual States.

   Aboriginal title is also a vexing concept. Legal debate goes on as to whether title is applicable to Aboriginal societies prior to European contact (Clark 1987). In cases where aboriginal title is recognised, the problem of how to protect the property rights of members of the majority society is always on the legal horizon. Also, conflicting title claims to overlapping territories by two or more Native groups often bedevil land claim negotiations. This problem is compounded by territorial re-organization of Aboriginal groups precipitated by colonial activity.

   Recognition of Aboriginal rights is probably the most contentious issue of all. Aside from the problem of what constitutes Aboriginal rights, how to reconcile such rights to the philosophy of common national rights is an ongoing issue in Canada, where Aboriginals probably enjoy a greater range of rights than in any State in the world. How are aboriginal title and rights to be reconciled to civil and legal rights of the general population? Even in Canada, where Aboriginal policy enjoys wide popular support, there is an outspoken faction (Smith 1995) opposing special rights, the conveyance of land and budget allotments to Native peoples.

   Self-government has given rise to internal dispute and problems within the Aboriginal community. One such problem is the demand by Native women to have their rights protected by Canadian law, rather than to be made to conform to Native cultural norms (Chiste 1994, Jackson 1994, LaRocque 1997:93-95). Another is Native resistance to the requirement that Native institutions follow the "democratic" model as required by the Canadian Charter of Rights and Freedoms. Some groups contend that this requirement is alien to Native procedure. Also, facing Aboriginal organisations is the problem of how the rights and interests of Aboriginals in urban contexts are to be recognised and protected.

   From a global perspective, it is necessary to debate the validity of imposing a "transcendental" model world-wide. Deriving from the English legal system, this model presupposes "inherent" aboriginal rights, and as such is Euro-centric in nature. Does the imposition of this model as a political text in effect establish a hegemony of Euro-American standards in regard to the Indigenous controversy (cf. Shimizu 1977)? On the other hand, must the fate of a certain Aboriginal group under the suzerainty of a State unsympathetic to the Indigenous problem (such as the Kurds in the Middle East or the Timors of Indonesia) be dictated by the vagaries of geo-political divisions?

   I have no answer to this riddle, but hold the (faint?) hope that international enlightenment may lead to an amalgamation of "context-bound" and "transcendental" principles. May it be that such an amalgamation shall result in an amelioration of the plights of Aboriginal peoples around the world.


  1. Here I use the term "ethnic" in reference to minority socio-cultural groups within a nation-state. Although "ethnic" is often used in reference to immigrant, as opposed to Aboriginal, groups (Levin 1993; x [Michael Levin (ed.) Ethnicity and Aboriginality: Case Studies in Ethnonationalism, Toronto: University of Toronto Press, 1993]), in this paper "ethnic groups" will refer primarily to Aboriginal groups [cf. Nathan Glazer and Daniel Moynihan 1975, Ethnicity: Theory and Experience, Cambridge: Harvard University Press].

  2. Falk 1995, Grand Council of the Crees 1995, Hodgins, Cannon (eds.) 1995, Levine 1997, Tremblay 1993, Stewart 1997b.

  3. Aboriginal peoples are also referred to as Autochthonous People[s], First People[s], First Nation[s], Founding Nation[s], Indigenous People[s], National minorities, Native People[s], Native Nation[s], Original People[s], scheduled tribes.

  4. The concept of Aboriginal rights within the Anglo-American legal system is relatively new and has still to be firmly established in jurisprudence. In Canada, Aboriginal rights are guaranteed and protected under the Constitution, although those rights have not been legally defined, nor protocol established concerning how such rights are to be enjoyed. Generally, Aboriginal rights are considered to include the right of self-government, rights concerning subsistence, language, religion, education, culture, etc., as well as the more contentious right of self-determination (Asch, Zlotkin 1997:214-218, Pentney 1987, Thorton 1991).

  5. According to Black's Law Dictionary (6th ed.), Aboriginal title provides original natives [of United States] exclusive rights to occupy lands and waters used by them and their ancestors before [United States] asserted sovereignty over such areas.

  6. Public government is a polity open to all inhabitants, and not restricted to any particular class. In Aboriginal self-government, only members of a particular Aboriginal community have franchise.

  7. In North America, the term "Indian" is ambigious, as it may refer to either only non-Eskimo/Inuit, non-Aleut Natives, or to all Natives of the continent. Whether the Proclamation and subsequent "Indian" legislation in Canada and the United States was intended to apply to the Eskimo/Inuit and Aleut is still under debate.



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