Effects, Reactions, and Implications of the 1969 White Paper
Originally Published in the McGill Pre-Law Review on April 2, 2020.
Of the many accomplishments mainstream Canadian history lauds former Prime Ministers Pierre Trudeau and Jean Chrétien, putting an end to the era of Indian Act assimilation is seldom one. That is not to say that they sought to tackle problems at the root of federal-Indigenous relations, but rather that they put together a piece of legislation so dismissive of treaty obligations and meaningful reform that it was rejected by not only the Indigenous community, but the notoriously inattentive wider public as well (Milloy, 2008). The ‘1969 White Paper’ effectively spelt an end to overt attempts at despotic systemic cultural integration waged by the government since the days of John A. MacDonald’s baleful declaration to parliament of “assimilat[ion]… in all respects” (Milloy, 2008). There are myriad reasons why the proposed policy was seen as problematic for Indigenous indemnity, but possibly the most contentious was its plans regarding land ownership rights. “Control of Indian lands should be transferred to the Indian people” is a phrase that sounds well-meaning at first, but in practice has led to attempts at privatization; a Eurocentric and capitalistic framework often at odds with Indigenous treatment of land (Chrétien, 1969). Despite its failure to materialize into law, the document had lasting impacts on subsequent legislation, approaches, and overall debates on the subject of Indigenous land ownership, while sparking a new chapter in Indigenous assertion of rights in both immediate and retrospective responses.
In order to contextualize the issue at hand, a sound understanding of the initial legal framework dictating Crown ownership is required. Eleventh century British doctrine prescribed that all land claimed by the British Empire was to be held under the jurisdiction of the Crown; a pervading precept that has found its way into modern Canadian federal law through our historic and maintained constitutional monarchy (Yellowhead Institute, 2019). While a distinction was made between Crown land and Indigenous reserves, the Royal Proclamation of 1763 forbade the direct sale of this land to other settlers, thereby requiring the Crown to broker all dealings (Yellowhead Institute, 2019). Subsection 24 of section 19 of the British North America Act of 1867 further ensured jurisdiction over Indigenous treaties to the Canadian parliament by granting absolute power when dealing with “Indians and lands reserved for Indians” (Cardinal, 1969). Both the Indian Act of 1876 and all ensuing amendments continued to shape and mandate stipulations around Indigenous reserves (Cardinal, 1969). After years of land claim settlements and often one-sided negotiations, reserves today make up a mere 0.02 percent of Canadian land (Yellowhead Institute, 2019). Still under federal jurisdiction, they are held in trust by the government, and it is these protected lands that the White Paper proposed to hand over to both the command of provincial governments and eventually the free market.
It is important to note that the idea of privatizing Indigenous land faced swift and almost immediate rejection by Indigenous activists and scholars, as well as First Nations rights organizations like the Indian Association of Alberta. It is clearly stated in the 1970 Albertan Chiefs’ response to the White Paper, Citizens Plus, that “[t]he Indians naturally view their land as a trust with a permanent sign on the corner-post, “Not for Sale”.” (Indian Chiefs of Alberta, 1970). Their rhetoric made clear the principle belief that Indigenous land is communal in its ownership; a shared privilege owed to future generations (Indian Chiefs of Alberta, 1970). The report cited a 1952 amendment to the Indian Act that forbids the sale, mortgaging or taxation of reserves, resourcefully twisting colonial structures back into their defense (Indian Chiefs of Alberta, 1970). Furthermore, Harold Cardinal, a renowned Cree activist and Indigenous legal scholar who worked on Citizens Plus, spoke at length about the betrayal this proposition represented to previous treaties, deals and promises made to Indigenous communities. He argued that “instead of acknowledging its legal and moral responsibilities…” the government, “now proposes to wash its hands of Indians entirely,” (Cardinal, 1969). The treaty system, flawed and convoluted as it may be, had at least some semblance of protectionary benefits for Aboriginal title, which had been fought hard for over years of protest and negotiation. Nonetheless, the government sought to dispense of the minimal reconciliatory provisions it had set up in the first place. It was clear that the Indigenous community interpreted the egalitarian rhetoric as an easy way for the government to evade responsibility for mismanaged treaty violations. By extension, Indigenous communities promptly conducted an economic plan with recommendations on how to proceed with future development opportunities in a way that was conscious of communal traditions, although most were not addressed or acted on in later negotiations (Indian Chiefs of Alberta, 1970), (Pasternak, 2014).
Considering the near unanimous response, it would be safe to assume that the stratagem of enforcing fee simple property rights on reserves would be dead in the water. Nevertheless, despite these efforts there remains a continued push towards privatization in the present day. With support from the Harper government, the First Nations Property Ownership Incentive (FNPOI) was proposed in 2010 in hopes of mitigating, inter alia, fiscal inequality and poverty on reserves (Pasternak, 2014). The initiative’s goals reeked of redundancy; arguing yet again for self-sustainability and inclusion into the free market. By and large, it would be absurd to assume that real estate incentives could be a quick solution to as deep-seated and complicated an issue as Indigenous poverty. Contrary to the expectations of most real estate agents, reserves are far from lucrative, urban hotspots of development, but rather tend to be rural and remote (Pasternak, 2014). Once again, the idea of handing responsibility over to the provinces resurfaced, granting power to the provincial Torrens registry system to govern Indigenous land (Pasternak, 2014). In turn, this creates additional constitutional complications considering that, in multiple pieces of defining legislation, these lands are mandated to be handled under federal rule (Pasternak, 2014). The attempt at allocating duties to the provincial level faced the same backlash it received in 1969, being seen as a diminishment in the status of the treaties between the federal government and Indigenous nations (Pasternak, 2014). On account of the conservative governments electoral defeat in 2015, the proposal was never codified (Pasternak, 2014). Nonetheless, the neoliberal sentiment underpinning the White Paper remains to be advocated by think-tanks and economic pundits to this day, most notably Professor and former advisor to the Prime Minister, Tom Flanagan (Pasternak, 2014). While this may have been the last exhausted measure to implement Indigenous land privatization, the likelihood of such programs resurging remains uncertain.
An underlying reason attested by Indigenous scholars on the damage that accepting fee simple rights could cause is the concept of legal submission. Attempts to challenge and work outside the established legal framework has been a predominant theme among Indigenous rights movements as it acknowledges the fact that the entire precedents of the Canadian legal system and British common law doctrines of tenure and reception are contingent on a contested notion of legal land ownership (King, 1999). The movement against legal submission is an effort directed at outmaneuvering past and present discriminatory laws governing various aspects of Indigenous life in Canada. It was the late Arthur Manuel, a Secwepemc leader, lawyer, and activist, who levelled this criticism in response to the FNPOI (Pasternak, 2014). Manuel maintained that allowing fee simple rights on reserves governed by Canadian property law would surrender Aboriginal title and be an act of acquiescence, as opposed to an act of complementarity, toward government authority (Pasternak, 2014).
These Indigenous protests demand a different approach than the appeals of the past that beseeched for specific treaty promises to be respected. This new approach is a stark, younger outlook, pertaining to an entirely new school of thought. It is easy to draw links between the current politics of challenge and refusal and past Indigenous movements engendered in the late 1960s. In his 1969 book, The Unjust Society, the title being a play on the epochal 1968 quote by Pierre Trudeau on the creation of a ‘Just Society,’ Harold Cardinal warns; “…the younger generation has less patience than the old. Any lack of change in the status quo to them is intolerable,” (Cardinal, 1969). Unlike the Indian Association of Alberta, who remained highly engaged with the legal paradigm and challenged both past and present unkept promises by the government, new Indigenous movements have favoured moving away from incrementalism and toward questioning one-sided negotiating relationships and the legal paradigm itself.
This paradigm shift is best seen in projects like Land Back, a revamp of the original responsive documents to the White Paper from the 1970s, released in 2019 by First Nation-led research group the Yellowhead Institute. Themes of frustration permeate from the report as it discusses case by case examples of recent Indigenous land rights violations. From the Sagkeeng First Nations’ court battle with Manitoba Hydro to the Tsleil-Waututh Nations’ opposition to the Trans Mountain Pipeline Expansion project, it is a reminder that Indigenous land is perpetually under threat (Yellowhead Institute, 2019). The paper urges that we must go one step further with reaffirmation efforts and look inwards to Indigenous authority when faced with an increasingly discriminatory system (Yellowhead Institute, 2019). Though the authors state they are not advocating for strictly non-structural reclamation efforts, as the previous examples are all currently being fought within court systems, they argue that exclusively Indigenous jurisdiction is a sustainable prospect and alternative to outsider corporate notions of economic development (Yellowhead Institute, 2019). In the face of misled aims by Chrétien and Harper to manufacture self-sustainability in ways that disrespect Indigenous values, consent-based jurisdiction is a necessary condition to proceed effectively (Yellowhead Institute, 2019). This requires that the government goes beyond keeping its end of the bargain on negotiated land treaties and recognizes the integrity of Indigenous authority in decisions pertaining to land they collectively own. It is through this independence that Indigenous-led projects can make use of land in ways congruent with the community as a whole, as well as build authentic forms of consensual nation-to-nation relations with the Canadian government.
As Professor of First Nations Studies Glen Coulthard aptly notes, “[a]lthough designed as a once-and-for-all solution to Canada’s so-called ‘Indian Problem,’”, the White Paper “… instead became a central catalyst around which the contemporary Indigenous self-determination movement coalesced, ‘launching it into a determined [defense] of a unique cultural heritage and identity,’” (Coulthard, 2014). A product of institutional ignorance and short-sightedness, the document serves as striking evidence of the power legislation has in instigating socio-political, economic and cultural events; law or otherwise. In response, a new era in the legal gymnastics of Indigenous and federal intercourse has been ushered. Since 1969 there have been many changes to the relational landscape, both for better and for worse. The most important lesson government leaders can take from the White Paper ordeal is the importance of respecting and accommodating community concerns, as well as recognizing that self-determination cannot be obtained by way of assimilation. The Indigenous communities’ response, whether it be in 1970 or today, has demonstrated that a new spirit of liberty is underway. It is through this liberty that they have fought and continue to fight for the collective land rights that have been promised from one generation to another.
link to the Original Article and Works Cited; https://issuu.com/mcgillprelaw/docs/pre-law_review_2020