Recognizing aboriginal rights

Mining industry representatives are confused by the media’s often misleading or incorrect interpretations of Supreme Court decisions and historic and contemporary agreements regarding Aboriginal land use and occupation in Canada. What is the history of Aboriginal peoples in Canada’s mining industry and what is their relationship to mineral explorers? What agreements were negotiated with government to form the rule of law?

Federal and provincial courts are only now recognizing and affirming agreements that have been made between Aboriginal nations and Europeans since they settled in Canada. It is clear from examining modern land agreements such as the Nisga’a Treaty and the Nunavut Final Agreement and court decisions such as Delgamuuku and Marshall that Aboriginal people in Canada are not receiving new privileges, rights or governments.

Court decisions today simply affirm the law and rights identified in earlier agreements. The government of Canada is finally implementing those agreements, some of which are several hundred years old and which were negotiated nation-to-nation. The Crown recognized Aboriginal peoples as a nation from first contact, and negotiated with them as such.

The minerals industry should also recognize the important role Aboriginal society plays in resource development. Not only are the Aboriginal people of Canada the first nations, but they were the first miners here. It is well-known that Anishnabeg (Ojibway) peoples mined copper in the Mamainse area of Ontario long before Europeans settled there. In 1863, William Logan of the Geological Survey of Canada referred to the Aboriginal copper mine north of Sault Ste. Marie.

As Aboriginal peoples provided valuable assistance to early explorers, so too did they help the Geological Survey of Canada navigate this vast country to explore for the mineral wealth that has since made Canada one of the world’s largest metals producers.

This relationship was based on sharing lands and resources. Even today, this concept holds true. During the hearings of the Royal Commission on Aboriginal Peoples in 1996, an elder remarked: “You must recognize that although we exercised dominion over these lands prior to the coming of the foreigners, our values and beliefs emphasized stewardship, sharing and conservation of resources.”

However, signed agreements and the past role of Aboriginal peoples in building the mineral industry have been long-forgotten by government. Agreements made nation-to-nation regarding peace, economic development and the sharing of lands and resources still exist. These agreements were entered into between equals in the spirit of sharing and co-operation, and are still the rule of law.

Agreements have been negotiated between Europeans and Aboriginal groups since contact occurred on the Atlantic coast. In the 15th century, Aboriginals welcomed the foreigners; they negotiated, traded, harvested and got along until the cultural clashes of the 18th century. Conflict ensued and, to avoid the disruption of the fur supply and the settlement of Canada, the governments of the day entered into treaties of peace; that’s all they were, for lands were not traded nor resources given up by the Aboriginal community.

Based on the Royal Proclamation of 1763, by which the Crown identified and recognized “Indian Territory,” the government sent agents to negotiate treaties or land surrenders with select bands. (The Proclamation protected Aboriginal land and resources, and is often referred to in many modern rulings.)

A surrender of “fee simple” interest in land was not a concept understood by Aboriginal communities, which believed that flora and fauna could not be surrendered. The concept of land ownership was foreign to them. These often ambiguously worded land-surrender agreements were signed by chiefs with a simple X. Often, it was a mineral discovery that led to the government’s gaining access to certain lands.

Aboriginal peoples still retain a residual interest in surrendered lands through the “privileges” to hunt and fish, which is why they are included in the federal environmental assessment process.

When the War of 1812 erupted between the British and Americans, the government of Upper Canada called upon Aboriginal peoples as allies. However, after the war, as the threat of invasion subsided, interest in maintaining them as allies dwindled. Other than for its mineral industry, the government had no further use for Indians. The social and economic conditions of Indians who were dependent on trade with settlers soon deteriorated.

In 1867, the British North America Act reiterated that only the federal government could make laws respecting Indians. In 1876, the first Indian Act was passed, providing rules and regulations for governing and policing Indians and lands reserved for them.

— The preceding is the first of two parts examining past and present relationships between Canada’s Aboriginals and government, and their impact on the mining industry. The author is president of the Canadian Aboriginal Minerals Association.