Oodgeroo of the tribe Noonuccal, Custodian of the land Minjerribah, Peace Prosperity and Healing, Sacred Treaty Circles

Algonquin Nation and International law

Posted in Aboriginal, indigenous, invasion, reconciliation, sovereignty, treaty by John T. on November 7, 2008

See also Algonquin Nation – recent developments

The following document is dated and specific to Quebec, however the issues it covers are very relevant to Australia’s proposed transition to a Republic and the Federal government’s as yet unfulfilled promise to sign the United Nations declaration on the rights of indigenous peoples.

The Algonquin Nation’s Presentation to the Members Committee to Examine Matters Relating to the Accession of Quebec to Sovereignty (Feb 1992)

As Represented by

BARRIERE LAKE, KIPAWA,
TIMISKAMING AND WOLF LAKE

GRAND CHIEF JEAN-MAURICE MATCHEWAN

Presentation to the

MEMBERS OF THE COMMITTEE TO
EXAMINE MATTERS RELATING
TO THE ACCESSION OF QUEBEC TO SOVEREIGNTY

in

Quebec City, Quebec
on
Tuesday February 4, 1992

from this link

1. INTRODUCTION

Mr Chairman, Honourable Members:

Thank you for giving us this hearing.
Before proceeding, I want to introduce our delegation. I am
here with:

— Russell Diabo, Policy Advisor;
— David Nahwegahbow, Legal Advisor;
— James Morrison, Historian;
— Richard Falk, Professor of International Law from Princeton
University.

My name is Jean-Maurice Matchewan. I am Grand Chief of the
Algonquin Nation as represented by the Algonquins of Barriere
Lake, Wolf Lake, Kipawa and Timiskaming.

The Algonquin Nation is made up of 10 distinct communities in
all. Nine are located in Quebec and there is one in Ontario.

The Algonquin Nation has never given up aboriginal title to
its traditional territory. This includes all the lands and waters
within the Ottawa River watershed on both sides of the Ontario-
Quebec border.

We know that the possibility of Quebec separation is very
real. And we are here today to tell you that this creates problems
for us. We will explain our position frankly to you, letting you
know in advance that we do not do it with hostility. You have your
interests. And we have ours.

If Quebec separates, the Algonquin peoples will have three
basic options:

1) To remain associated with Canada
2) To leave with Quebec, or
3) To form a separate, sovereign Nation.

Quebec claims a right of self-determination. But self-
determination belongs to peoples. It does not belong to
territories. If Quebecois and Quebecoises claim the right to
determine their own future, then the Algonquins have a prior right
to self-determination.

We take the position that Quebec cannot secede with Algonquin
land without our consent. And we have put Canada on notice that,
until we advise otherwise, we intend to hold Canada to its
fiduciary duty with respect to our traditional lands in the
Province of Quebec.

There are four parts to our presentation, aside from the
introduction:

* Historical basis for aboriginal rights and
self-determination of the Algonquin Nation;

* Aboriginal title and the Royal Proclamation of
1763: the Crown’s fiduciary obligations;

* Obligations in international law; and

* Summary and conclusions.

2. HISTORICAL BASIS FOR ABORIGINAL RIGHTS AND SELF-
DETERMINATION OF THE ALGONQUIN NATION

The modern province of Quebec is a creation of British
colonial law. Like Ontario, it has all along been subject to what
Professor Brian Slattery calls “common law aboriginal title”. By
virtue of the Royal Proclamation of 1763 and subsequent
regulations, aboriginal title can only be acquired by the Crown –
which today means the Federal Crown – through voluntary surrender
“taken from Indians of the lands occupied by them”.

Despite this fact, it has often been claimed that Quebec’s
distinctiveness in the Canadian federation also extends to
aboriginal rights. Generations of local school children have been
taught that, from New France, their province inherited a pattern
of dealing with Native people that was remarkably different from
that followed in the Anglo-American colonies.

This argument – still being advanced by some politicians and
academics in Quebec – has had profound consequences for aboriginal
people, because it has been largely accepted by the Federal
Government. In 1906, for example, government commissioners
negotiating Treaty Number Nine at Abitibi Post in northwestern
Quebec explained to the local Algonquins that – because of
Quebec’s distinct history – they were only authorized to treat
with those people who had hunting grounds in Ontario:

The policy of the province of Ontario has differed
very widely from that of Quebec in the matter of the
lands occupied by the Indians. In Ontario, formerly
Upper Canada, the rule laid down by the British
government from the earliest occupancy of the country has
been followed, which recognized the title of the Indians
to the lands occupied by them as their hunting grounds,
and their right to compensation for such portions as have
from time to time been surrendered by them. In addition
ta an annual payment in perpetuity, care has also been
taken to set apart reservations for the exclusive use of
the Indians, of sufficient extent to meet their present
and future requirements.

Quebec, formerly Lower Canada, on the other hand,
has followed the French policy, which did not admit the
claims of the Indians to the lands in the province, but
they were held to be the lands of the Crown by right of
discovery and conquest. Surrenders have not, therefore,
been taken from the Indians by the Crown of the lands
occupied by them.

The reserves occupied by the Indians within the
province of Quebec are those granted by private
individuals, or lands granted to religious corporations
in trust for certain bands. In addition, land to the
extent of 230,000 acres was set apart and appropriated in
different parts of Lower Canada under 14 and 15 Vic.,
chap. 106 (1851), for the benefit of different tribes.
Several reserves have also been purchased by the federal
government for certain bands desiring to locate in the
districts where the purchase was made.

While their account of reserve creation is correct, there is
only one problem with the commissioners’ analysis of historical
Quebec Native policy – it is not true. Britain did not adopt
“French policy” with regard to native land claims in what is now
Quebec. Nor did the British Crown ever claim unceded Indian lands
in that province by virtue of discovery or conquest. Unlike the
French-speaking inhabitants of what is now Quebec, the Indian
Nations were considered allies, not subjects, of the Crown – and
their pre-existing lands rights were to be respected. When French
civil law was reintroduced into Quebec in 1774, it was never
intended that the Indian Nations would be subject to its
provisions.

Until 1830, there was little settlement pressure on unceded
Indian lands in what is now Quebec. It is true that thereafter –
unlike in Ontario – land surrenders were rarely taken, even though
the law clearly required them. But this was not because
governments of the day believed that they were following old
French colonial policy. By the 1840’s, settler politicians in the
eastern half of the pre-confederation Province of Canada,
responding to among others a powerful lobby of Ottawa valley
timber magnates, believed they could open such unceded Indian
lands to settlement and resource extraction without first
extinguishing aboriginal title.

After Confederation, the QuebeC elite invented the theory
that their predecessors had simply been following French colonial
practice in order to justify the non – recognition of aboriginal
title. This is what the Treaty 9 commissioners had reported as
historical truth. This self-serving argument was important to
Quebec, because Canadian boundary extension acts in 1898 and
1912 – which incorporated the Abitibi and James Bay regions into
that province – implicitly or explicitly recognized pre-existing
aboriginal rights in those same territories.

For the Algonquins and other First Nations – whose common law
aboriginal title to much of modern Quebec has never been
extinguished – the current discussions provide an opportunity to
set the record straight.

(1) The French Regime

Even the statement that France never “admitted” Indian claims
to land is incorrect. As a number of historians have pointed out,
French policy towards native people has been frequently
misunderstood. It is important, for example, to distinguish
between assertions of international and domestic sovereignty. The
French Crown never claimed full title to lands occupied by Indian
nations within the purported boundaries of Canada – which, after
all, covered an enormous part of North America.

This was especially true of the lands north and west of the
seigneuries on the St. Lawrence River – where, since 1716,
settlement and clearing of land had been forbidden without the
express authorization of the Crown. Known to the French as the
“pays d’enhaut” – and to the Anglo-Americans as “Indian country” –
this was the zone of the fur trade. Effective French sovereignty
in these regions extended no further than musket range of their
trading posts.

The traditional lands of the Algonquin Nation – which extend
up both sides of the Ottawa River and inland towards James Bay –
were always considered part of the Indian country. The French
traded with the Algonquins at posts along the Ottawa and its
tributaries, with major trading establishments at Abitibi and
Temiscamingue.

In the first half of the eighteen century, some members of
the Algonquin Nation – known then both as Algonquins and
Nipissings – were spending their winters in their homelands and
their summers at the Sulpician mission settlement on Lake of Two
Mountains, which they called Oka (pickerel). These were the people
who hunted along the lower Ottawa River as far as Mattawa and Lake
Nipissing.

The Algonquins who remained on their lands year-round were
known to the others as Nopiming daje inini or inlanders, which the
French translated as gens des terres. To confuse matters, the
French occasionally called them tetes de boule (which was a term
applied as well to the Attikamegue Nation of the upper St. Maurice
region). These were the Algonquins who inhabited the headwaters of
the Ottawa – including Barriere Lake – and the Kipawa, Abitibi and
Temiscamingue regions.

The Algonquins were famous warriors. As allies of the French,
they fought many battles against the British and their Native
allies, the Six Nations Iroquois. Without their assistance – and
those of other “domiciled” Nations – Montreal and the other tiny
French settlements along the St. Lawrence would not have survived
the seventeenth century.

But it was not just the mission Algonquins who were involved
in combat. In the late seventeenth and early eighteenth centuries,
warriors from as far away as Abitibi and Temiscamingue joined the
French on their expeditions against the Iroquois and the English.
During the Seven Years War, inland Algonquins also fought
alongside their brethren from Oka until the French alliance was
abandoned in the late summer of 1760.

(2) Nation to Nation Relations

As late as the 1950’s, it was still possible for historians
to ignore Native people when writing about the conquest of New
France. such rights as France’s former allies had retained under
the British, it is usually argued, flowed from Article 40 of the
capitulation of Montreal on 8 September, 1760. The capitulation
had been drafted by the Marquis de Vaudreuil and his officers:

The Savages or Indian allies of his most Christian
Majesty, shall be maintained in the Lands they inhabit;
if they chuse to remain there; they shall not be molested
on any pretence whatsoever, for having carried arms, and
served his most Christian Majesty; they shall have, as
well as the French, liberty of religion, and shall keep
their missionaries […]

But the Indian Nations were not dependent on such agreements
between France and Britain to protect their interests. As Mr.
Justice (now Chief Justice) Lamer of the Supreme Court has pointed
out in the recent Sioui case, the Hurons of Lorette had already
made their own treaty with the British two days before the fall of
Montreal.

The same was true for other Indian Nations of what is now
Quebec. In mid-August of 1760, deputies of nine tribes – including
representatives of the Algonquin Nation – came to meet Sir William
Johnson, the British Superintendent of Indian Affairs, at Fort
Levis in the St. Lawrence River. British forces, beginning their
descent on Montreal, had just captured this island stronghold near
what is now Prescott, Ontario. There, accordingly to Sir William,
the nine Nations ratified a Treaty with British, “whereby they
agreed to remain neuter on condition that we for the future
treated them as friends and forgot all our former enmity”.

The consequences of the treaty were devastating for the
French colony, since the Indian Nations controlled the water
routes to Montreal. On the 29th of August, the French commander –
the Marechal de Levis – called a council with the chiefs and
warriors at La Prairie to urge them to stay in the French
interest. As he was speaking, the ambassadors who had been sent to
Sir William Johnson suddenly returned – interrupting him to
announce that they had already made peace with the British. The
assembled tribes vanished, leaving Levis with a belt of wampum
dangling uselessly from his hand.

Sir william Johnson used his close contacts with the Six
Nations of New York province to cement diplomatic ties with these
former native adversaries. After the capture of New France in
1760, the Seven Indian Nations of Canada, along with their “allies
and dependents”, formally united together with the Six Nations to
form one large confederacy in the British interest.

Unlike the “canadiens”, the Indian Nations of Quebec were
considered allies, not subjects, of the British Crown. Over the
years that followed, colonial officials responsible for Indian
relations – governors, the military, and officers of the Indian
Department – continued to operate on a nation to nation basis with
Indian Nations.

Governor Haldimand of Quebec made this point at the close of
the American Revolutionary War in 1783, in instructions which he
issued to Sir William Johnson’s son, John Johnson, as the new
Superintendent-General of Indian Affairs. As the Indian Nations,
he wrote, “consider themselves, and in fact are, free and
independent, unacquainted with control and subordination, their
Passions and Conduct are alone to be governed by Persuasion and
Address”.

First Nations from what is now Quebec – including warriors of
the Algonquin Nation – had fought as allies of the British
throughout the American Revolutionary War. They also fought in the
War of 1812-15 – helping, for example, to defeat the Americans at
the Battle of Chateauguay. The Algonquin Nation remained loyal to
the British Crown during the 1637-38 Rebellion in Lower Canada.

Algonquins have also, in keeping with this martial tradition,
served overseas with Canadian Forces in both World Wars.

(3) British Military Rule 1760-63

After the fall of Montreal, Britain never intended that
aboriginal people living within the former boundaries of Canada
would thenceforth be subject to French colonial usages and
customs. The continuation of those French laws had been rejected
by the British Commander in Chief General Jeffrey Amherst, under
the terms of the Capitulation.

In fact, the British Crown promised equal treatment to both
French-speaking “canadiens” and aboriginal people. As the King
instructed General Amherst in 1760-61, the Indian Nations were to
be treated “upon the same principles of humanity and proper
indulgence” as the French; and Amherst was to “cultivate the best
possible Harmony and Friendship with the Chiefs of the Indian
Tribes”.

On September 20, 1760, Sir William Johnson had appointed his
son-in-law, Daniel Claus, as Deputy Indian Agent at Montreal, in
order to extend “the British Indian interest”. At a series of
council meetings with the Algonquins and other Indian Nations,
Claus assured them that their land rights would be respected.

The military government did abolish the former French trade
monopolies, which had seen fur trade posts – such as
Temiscamingue – either kept for the Governor’s profit or sold to
the highest bidder. But the three military jurisdictions –
Montreal, Quebec and Trois Rivieres – maintained the French
distinction between the settled lands on the St. Lawrence and
Indian country. Within the Montreal District, for example traders
needed military permission to pass up the Ottawa River beyond the
old seigneurial boundaries west of Lake of Two Mountains.

(4) The Province of Quebec, 1763-1774

The Royal Proclamation of October 7, 1763 created the
Province of Quebec, though with relatively limited boundaries.
These encompassed the old French seigneuries and a part of the
interior country within a diagonal line drawn from Lac St. Jean
southwest to the eastern tip of Lake Nipissing. The Crown’s
purpose in doing so was to include the rivers which flowed into
the St. Lawrence from the northward – presumably so that the St.
Lawrence and Ottawa River routes, the main access points to the
settled part of the province, would be under the new civil
government’s control.

Some settlement was to be permitted in Quebec – particularly
for demobilized military officers and their families. Thus, Part
II of the Proclamation permitted the Governor of Quebec to “settle
and agree” with the inhabitants of the province for such lands as
“are now or hereafter shall be in Our power to dispose of”.
However, the Crown had relatively little land at its disposal –
and relatively few Anglo-American settlers actually arrived in the
province.

Apart from the seigneurial grants, the remaining lands in
Quebec were in the possession of aboriginal people. These were
protected by the provisions set out in Part IV of the
Proclamation:

And whereas it is just and reasonable, and essential to
Our Interest and the Security of Our Colonies, that 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 Dominions and Territories as, not having been
ceded to or purchased by Us, are reserved to them, or any
of them, as their Hunting Grounds.

Accordingly, the Governors of Quebec and the other colonies
were forbidden to pass patents or issue warrants of survey beyond
the bounds of their commissions. Private persons were forbidden to
settle on unceded Indian lands. When Indian lands were wanted,
they were to be purchased for the Crown at a public meeting with
the nations or tribes concerned.

The Royal Proclamation of 1763 was officially promulgated
within the new Province of Quebec by Governor James Murray. This
was so that the new and old subjects of the Crown would know the
various regulations it contained. The Crown also ordered Sir
William Johnson to make the Proclamation known to the Indian
Nations within the territories under his jurisdiction.

These Indian territories included the lands of the
Algonquins. Some of these lands – such as those along the Ottawa
River – were now within the Province of Quebec. The remainders
were within the great Indian reserve set out in Part IV of the
Proclamation. There was to be no settlement at all within the
latter territories, without the “leave and licence” of the Crown –
and the consent of the Indian Nations.

The 1971 report of the Dorion Commission on the territorial
integrity of Quebec disputes the applicability of the Proclamation
within the boundaries created in 1763. However, it fully accepts
that the Proclamation applied to the lands north of Quebec’s 1763
boundary.

Historical evidence, however, shows that the provisions of
the Proclamation were also strictly observed within the old
province of Quebec. In 1766, for example, His Majesty’s Privy
Council in London had endorsed a grant of 20,000 acres to a
certain Joseph Marie Philibot at a location of his choosing. But
when that individual asked for land on the Restigouche River, the
Governor and Council of Quebec refused his application – on the
grounds “the lands so prayed to be assigned are, or are claimed to
be, the property of the Indians and as such by His Majesty’s
express command as set forth in his proclamation in 1763, not
within their power to grant”.

Lands within the province which the Crown considered in its
“Power to dispose of” to settlers – to use the wording of the
Royal Proclamation – did not include the areas north and west of
the Ottawa and St. Lawrence Rivers. As under the military regime,
these lands were zoned for the fur trade and aboriginal people. In
april of 1764, it was forbidden for inhabitants of Quebec to pass
beyond Carillon on the Ottawa without a pass from the Governor.

(5) The Province of Quebec, 1774-1791

By the Quebec Act of 1774, the province’s boundaries were
enormously enlarged, extending as far to the westward and
southward as the upper Great Lakes and the Mississippi River. This
took in much of the territory which had been zoned under the
Proclamation for exclusive Indian occupation. Virtually all of the
lands of the Algonquin Nation, for example, were now within the
bounds of Quebec.

The reason for the boundary extension, as both the Preamble
to the Act and the subsequent instructions to the Governor make
clear, many small French interior settlements – such as Detroit,
and Kaskaskia on the Illinois – had been left by the Proclamation
without civil government. Not only would these settlements now be
governed from the st. Lawrence, but they would be able to avail
themselves of French civil law, which had been reintroduced by the
Act as well.

These new arrangements, however, had little relevance for the
Indian Nations of Quebec. Indian Nations, as before, had a direct
relationship with the Crown, through the British military and
Indian Department. As the Commander in Chief explained to the head
of that Department shortly after the passing of the Quebec Act,
Indian people were ordinarily left to “their own usages and
customs” in most things. While they might, said General Thomas
Gage, have been informed that, “in cases of murder or robbery”,
they could be tried according to English law, the “French law of
Canada” would have no authority over them.

The settler government – which at this time consisted of a
Legislative Council, rather than an Assembly – had no
constitutional authority over aboriginal people, though it could
and did pass laws to protect them from depredations by whites. One
such piece of legislation was a 1777 Ordinance to prevent the
selling of liquor to aboriginal people. Under its terms,
inhabitants of Quebec were also forbidden to travel past the foot
of the long fall on the Ottawa River – near Carillon – without a
pass. Nor was anyone to be allowed to settle “in any Indian
village or Indian country within this Province” without a licence
in writing from the government.

British officials assured the Indian people that the
provisions of the Royal Proclamation protecting their land rights
were still in effect. There was little settlement pressure within
the province in any case until the close of the American
Revolutionary War – when Britain suddenly had to provide far great
numbers of refugee Loyalists.

Many of these Loyalists wanted to settle on Indian lands
north of the St. Lawrence River and Lakes Erie and Ontario. As a
result, beginning in 1781, the Crown acquired various tracts of
land from the Indian Nations – in keeping with the rules set down
in the Royal Proclamation of 1763. One of these purchases – in
1783, of lands in what is now the far corner of eastern Ontario –
was made from Mynass, an Algonquin Chief, who lived at Oka.

Some Loyalists also settled in what are now the Eastern
Townships of Quebec. The Crown had purchased the Seigneury of
Sorel for them – and, with other seigneurial lands available,
there was little need to apply to the Indian Nations for more
land. Disputes did arise at St. Regis – Akwesasne – much of which
was coveted by the settlers. However, their petition ta the
Executive council – the ultimate land-granting authority – was
refused, on the grounds that the lands in question, being Indian
lands, were “not in the Ring’s power to grant”.

(6) The Province of Lower Canada, 1791-1841

The Province of Canada was created by Imperial statue in
1791. what had remained of Quebec after the American Revolution
was formally divided into Lower and Upper Canada by Imperial Order
in Council of 24 August 1791. The boundary between the two
provinces was to run along the Ottawa River as far as Lake
Temiscamingue and then “due North until it strikes the boundary
line of Hudson’s Bay”. The traditional lands of the Algonquin
Nation, therefore, were now both in Upper and Lower Canada.

French civil law was to apply in the lower province, while
the English common law was to prevail in the upper. This did not
affect common law aboriginal title, which was to have the same
application in both. Shortly after the passing of the 1791
legislation, the King reappointed Sir John Johnson as
Superintendent General of Indian Affairs. He was to assure “Our
Faithful allies, the Nations inhabiting our provinces of Upper and
Lower Canada and the frontiers thereof” of His Majesty’s continued
concern for their welfare.

These assurances included protection of existing land rights.
As Sir John’s superior officer – Governor Guy Carleton, Lord
Dorchester – assured the Confederacy of Indian Nations at Montreal
in 1791, the Crown “never has, and never will, take a foot of land
from you without your consent, and without paying you for it”.

There were problems, however, as Lord Dorchester explained to
the colonial secretary in early 1795, he had been hearing frequent
“complaints of the Indians of Lower Canada regarding their Lands”,
as well as protests from the Indians in Upper Canada at “Persons
who have taken possession of Lands which are still claimed by
them”. These discontents, according to the Governor, “could
proceed only from the omission of Form, and want of knowledge in
the Persons employed to make Purchases of their Lands”. Deciding
therefore to expand on the rule& originally set out in the Royal
Proclamation of 1763, Lord Dorchester had issued a new series of
regulations to Sir John Johnson on 24 December 1794.

These regulations clearly applied to Lower Canada, as well to
the upper province. They state that when lands are wanted in “any
of the King’s Provinces”, proper requisitions are to be made to
the Commander in Chief. By Article 3, “All purchases are to be
made in public Council with great solemnity and ceremony according
to the ancient usages and customs of the Indians, the principal
Chiefs and Leading Men of the Nation or Nations to whom the lands
belong being first assembled”. Proper maps of the lands to be
acquired are to be made, and copies of the agreements given to the
Indian Nations for their records.

Between 1794 and 1830 in Upper Canada, the British Crown
entered into a long series of land surrender agreements with the
Indian Nations. This was to allow for the settlement of American
Loyalists and subsequent British immigrants.

Within Lower Canada, on the other hand, there was no
sustained pressure on unceded Indian lands before 1820. Until that
time, settlement had largely been confined within the old
seigneurial grants along the St. Lawrence.

When the frontier of settlement did advance into Indian
country, Indian Department officials insisted that the Royal
Proclamation of 1763 continued to apply. In 1824, the octogenarian
Superintendent-General, Sir John Johnson, argued in a letter to
the Governor that the lands of the Algonquin Nation were being
illegally encroached upon by lumberman and settlers:

By His Majesty’s Proclamation dated the 7th October 1763,
a copy of which is herewith enclosed, you will find that
it is expressly provided that the Indians shall not under
any Pretence whatever, be deprived of the Lands claimed
by them, unless they should be inclined to dispose of
them, in which case they are to be Purchased for the
Crown only, and at some Public meeting to be held for
that purpose.

As late as 1837, the Executive Council of Lower Canada
considered that the Algonquin Nation had established a valid claim
to their hunting grounds along the Ottawa River, based on the
Royal Proclamation and Lord Dorchester’s regulations.

(7) The Province of Canada, 1841-1867

By the early 1840’s, the Lower Canada forest industry had
spread into the Saguenay-Lac St. Jean region and far up the Ottawa
River and its tributaries. English speaking lumberman like William
Price – the “father of the Saguenay” – and John Egan – who held
all the licenses around Lake Temiskaming – used their influence
with the provincial government to open what had until then been
fur trade and Indian country to resource extraction.

At the same time, the Catholic clergy were pressing the
government to allow proper colonization of the Saguenay. They were
concerned that rural people – faced with a shortage of arable land
in the old seigneuries – had been leaving for the towns of Canada
and the United States.

As some compensation to aboriginal people who were being
displaced, Oblate missionaries petitioned the provincial
government to provide Indian reserve lands in the Saguenay and
Ottawa regions. These would include a township on the Gatineau
River and another large tract at the head of Lake Temiscamingue –
both for the Algonquins and their relations. In a report to the
government dated August 2, 1849, the Assistant Commissioner of
Crown Lands, Teophile Bouthillier, recommended that the tracts be
set apart. He also noted the contrast between the two halves of
the province of canada in their treatment of Indian claims:

There is this general observation to make in conclusion,
that while in Upper Canada the Government have
scrupulously paid the actual occupants of the soil for
almost every inch of ground taken from them, making fresh
purchased as new districts were laid out, they in Lower
Canada appear to have been totally regardless of all
Indian claim.

The Assistant Commissioner’s remark was meant as a criticism,
not as a defence, of Lower Canada land policy. Nowhere do
Bouthillier or any other government officials of this period
suggest that the lower province, in disregarding Indian claims,
was following old French colonial practice.

The government’s response to these petitions was the Lower
Canada Statute of 1851, which set apart 230,000 acres of land in
Canada East for the use of certain Indian tribes. By Order in
Council of 9 August 1853, these lands were formally distributed.
The schedule included 38,400 acres at the head of Lake
Temiscamingue, and 45,750 at Maniwaki or Riviere Desert for the
“nomadic tribes” of the Nepissingue, Algonquin, Outaouais and
Tetes de boule.

In effect, then, the creation of reserves in Canada East
constituted compensation for damages caused to Native hunting
grounds by lumbering and settlement. However, none of the official
documents – including the 1851 statute – tied reserve creation to
the extinguishment of aboriginal title. This is not surprising
since the Legislative Assembly of Canada had no such
constitutional authority.

(8) The Province of Quebec, 1867 –

The modern province of Quebec came into being through the
British North America Act of 1867. Responsibility for “Indians
and lands reserved far the Indians” within the province was
entrusted to Canada under Section 91(24). Under Section 109 of
the Act, Quebec was given authority over lands and resources
within its boundaries – subject to any “interest other than that
of the province in the same”.

It was a commonly held view that aboriginal title was just
such an interest. In 1875, Telesphore Fournier – Minister of
Justice in Alexander Mackenzie’s Liberal government – argued this
point in an opinion involving aboriginal title in British
Columbia. The opinion notes that aboriginal rights to land had
always been respected throughout what was now Canada – including
both Ontario and Quebec:

The determination of England as expressed in the
Proclamation of 1763, that the Indians should not be
molested in the possession of such parts of the dominions
and territories of England as not having been ceded to
the King are reserved to them, and which extended also to
the prohibition of purchase of lands from the Indians
except only by the Crown itself at a public meeting ar
assembly of the said Indians to be held by the Governor
or Commander in Chief, has with slight alteration been
continued down to the present time, either as the settled
policy of Canada or by Legislative provisions of Canada
to that effect; […] and in various parts of Canada from
the Atlantic to the Rocky Mountains large and valuable
tracts of land are now reserved for the Indians as part
of the consideration of their ceding and yielding to the
crown their territorial rights in other portions of the
Dominion.

In 1867, Quebec’s boundary only extended as far north as the
height of land separating the St. Lawrence watershed from the
rivers flowing into Hudson and James Bay. The more northerly
territory – part of the lands covered by the charter of the
Hudson’s Bay Company – was formally transferred to Canada in 1870,
following petitions from the Senate and House of Commons of the
new Dominion. The transfer stipulated that the “claims of Indians
to compensation for lands required for purposes of settlement
shall be disposed of by the Canadian Government in communication
with the Imperial Government”.

Most of the Algonquin homelands were within the territorial
boundaries of Quebec in 1867, though some lands remained within
what were now the Northwest Territories. In 1898, Canada
transferred the southern half of this northern territory to
Quebec. The remainder was transferred in 1912. Again, there was an
express stipulation that aboriginal title would be dealt with.

Canada made Treaty No. 9 in 1905-06 and 1929-30 with the
Native inhabitants of Ontario whose lands had once been part of
Rupert’s Land. No such treaty was made in Quebec. In the decades
following Confederation, the Quebec elite had begun arguing that
the province had inherited French policy with regard to aboriginal
title. It was not necessary, therefore, to negotiate for the
extinction of the aboriginal interest. This argument was adopted
by the provincial government – and largely accepted by Canada.

In the period after 1880, Quebec began a major expansion of
settlement and resource extraction in the traditional homelands of
the Algonquin Nation. Continuing their attempts to stem the flood
of rural “canadiens” to the New England states, Oblate clergy
promoted major colonization schemes at the head of Lake
Temiscamingue and in the Abitibi region.

Lumbering remained the major activity up the Gatineau River
and around the headwaters of the Ottawa. To aid the lumber
industry and provide hydro-electric power, Quebec permitted the
construction of enormous dams and reservoirs at Baskatong, Cabonga
Dozois and Kippewa. These dams caused major damage to the
homelands of the Algonquin people.

Quebec also stepped up prosecution of Algonquin people for
supposed violations of provincial game and fish regulations.
Between the two world wars, only the Hudson’s Bay Company – for
their own commercial reasons – were prepared to support the pre-
existing rights of aboriginal people to hunt, fish and trap.

Development and encroachment on unsurrendered Algonquin lands
continued to the end of the nineteenth century and throughout the
twentieth century, more or less unabated. This caused much
hardship to the Algonquin people whose traditional way of life
depended upon hunting, fishing, trapping and gathering.

Their way of life was even more directly interfered with when
the government of Quebec permitted the creation of private hunting
and fishing reserves on traditional lands, without Algonquin
assent. When the private clubs were abolished, the government of
Quebec created Zones of Controlled Exploitation (ZEC). Algonquin
people did not assent to these either. Yet they are still being
harassed for exercising their aboriginal rights in these zones.

Although the Department of Indian Affairs tried, after the
1940’s, to have small reserves set apart for the interior
Algonquins – at Amos, Lac Barriere, Grand Lac and Lac Simon, for
example – these proposals were resisted by the Quebec Colonization
Department.

Apart from these minimal efforts, Canada has generally failed
to support the rights of Algonquin peoples in Quebec. The
Algonquin people are among the poorest in Quebec and Canada.
Housing, health and education standards are inadequate and our
unemployment rates are as high as 80-90 per cent. And despite
outstanding claims, we have been squeezed by Quebec onto marginal
land bases. For example, the reserve at Rapid Lake is made up of
59 acres of sand for a total population of 450 people. The
community of Kippewa is in a similar situation. Wolf Lake does not
even have a reserve.

3. ABORIGINAL TITLE AND THE ROYAL PROCLAMATION OF 1763:
THE CROWN’S FIDUCIARY OBLIGATIONS

Though the Royal Proclamation of 1763 was intended to be
protective of the interests of Indian peoples in their lands, it
also placed a serious impediment on their ability to deal with
their lands. It provided that Indian lands could only be
surrendered to the Crown. This, of course, also placed the Crown
in a very powerful position vis a vis Indians because it alone had
the power to buy Indian lands. The Crown also had the
responsibility for promoting settlement on Indian lands – which
was a conflict of interest. This conflict was usually resolved in
favour of settlement.

This is exactly what occurred, to the extreme, in the case of
the Algonquins. Settlement proceeded on Algonquin lands and the
Crown did little to stop it. Nor did it make any efforts to
negotiate a surrender of the aboriginal title of the Algonquins.
This is unlike the situation in Ontario and the prairies where
settlement was either preceded by, or at least accompanied by,
treaties of land cession.

Since 1867, it has been the Crown in right of Quebec which
has driven settlement and development of Algonquin lands, aided
and abetted by the Crown in right of Canada. The Crown in right of
Quebec has consistently refused to allow the transfer of adequate
reserve lands to Algonquin First Nations.

The inalienability of aboriginal title led the Supreme Court
of Canada in 1984 to conclude that this placed a fiduciary duty
upon the Federal Crown to act in the best interests of the
Indians. In Guerin v The Queen, the Court said:

The fiduciary relationship between the Crown and the
Indians has its roots in the concept of aboriginal,
native or Indian title. The fact that Indian bands have
a certain interest in lands does not, however, in itself
give rise to a fiduciary relationship between the Indians
and the Crown. The conclusion that the Crown is a
fiduciary depends upon the further proposition that the
Indian interest in the land is inalienable except upon
surrender to the Crown.

In 1982, s.35 of the Constitution Act. 1982. “recognized and
affirmed” the existing aboriginal and treaty rights of the
aboriginal peoples of Canada. As a result, according to the
Supreme Court of Canada, the fiduciary duty of the Crown is now a
constitutionally charged obligation: Sparrow v. The Queen (1990).

As a consequence of the Royal Proclamation of 1763, common
law aboriginal title, the fiduciary duty of the Federal Government
and s. 35 of the Constitution Act, 1982, the Algonquin Nation
takes the position that:

(1) The Federal Government owes a fiduciary duty to the
Algonquin Nation to protect their aboriginal title
to lands in Quebec.

(2) Any constitutional changes affecting the title of
the Algonquins in Quebec requires their consent.

(3) Quebec can not legally secede from canada with
Algonquin lands without algonquin consent.

4. OBLIGATIONS IN INTERNATIONAL LAW

International law has been deficient about addressing the
specific concerns and vulnerabilities of Indian Nations. At the
same time, increasingly, international law is developing a
sensitivity to these concerns and vulnerabilities, especially
through the activities of the Working Group on Indigenous
populations. The working group meets annually at Geneva under the
auspices of the UN Sub-Commission on Prevention and Protection of
Minorities, and has been drafting a Universal Declaration on
Indigenous Rights. Beyond this, ILO Convention 107 and 169 exist,
but do not pertain directly to the present circumstances and have
not been ratified by Canada. These instrument& can be regarded as
embodying minimum principles of customary international law that
are binding on all countries. In this regard, the Preamble of No.
169 (1989) is relevant, especially the language, “Recognizing the
aspiration of these peoples to exercise control over their own
institutions, ways of life and economic development and to
maintain and develop their identities, languages and religions,
within the framework of the States in which they live.” The legal
acknowledgement of this aspiration is binding on the Canadian
Government, implying a series of practical effects in the context
of either fundamental reform bearing on the wellbeing of Indian
nations or within the context of the dissolution of the former
state and its replacement by two or more states.

Canada is also bound by general conceptions of international
laws that are contained in fundamental treaties that have
relevance to the concerns of the Algonquin Nation, although not
drafted with this concern in mind. Article 1(2) of the United
Nations Charter describes, as among the “Purposes” of the UN, “to
develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples.” The
centrality of this principle is expressed by the inclusion of
common language in Article 1(1) of both the International Covenant
on Economic, Social and Cultural Rights and the International
Covenant on Civil and Political Rights: “All peoples have the
right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic,
social and cultural development.”

The specific mechanisms far realizing this legal commitment
have not been established, but it is certainly the case that the
Algonquin Nation encompasses a “people” within the meaning of
international law, and that the contemplated changes by way of
reform or separation profoundly affect their “political status”
and bear upon their prospects to exercise their rights to
development. Secession of Quebec by rupturing the integrity of the
Algonquin Nation and its territory within the current boundaries
of Canada has a manifest profound affect such that its prospect
should give rise to some sort of appropriate participation by
which approval or disapproval could be expressed by the Algonquin
people, both those in Quebec and those in Ontario.

The meaning of the principle of self-determination in
international law has always reflected the practice and
aspirations of peoples in the world. Recent developments,
especially the dissolution of the Soviet Union and the emergence
of Croatia and Slovania from out of Yugoslavia, underscore the
relevance of political behaviour to the application of the rights
of self-determination. Canada’s foreign policy is interesting in
this respect because of the haste with which diplomatic
recognition was accorded to emergent nations out of the Soviet
Union and Yugoslavia. One would think Canada should act with equal
haste to recognize the right of self-determination of Indigenous
peoples within its own borders.

Also of great relevance are the negotiations between the
Palestinians in the Occupied Territories and the State of Israel
for some interim form of Self-Government, and between the Iraqi
Kurds and the State of Iraq to achieve some type of “autonomy”
within the Iraqi state. It is clear that self-determination may
lead to the redefinition of the boundaries and number of states,
and that it pertains to restructuring of the rights of peoples and
nations within states. This latter process is part of
international law, and cannot be insulated by claiming that it is
carried on within the state in accordance only with domestic law.
This assertion has acquired extra force recently with the
increasing recognition that Indian nations are subjects of
international law that are deserving of special protection because
of their vulnerability and the degree to which their survival as a
nation is at risk. In effect, there is emerging at an
international level a sense of fiduciary duty to ensure
protection, a duty that is also being promoted by NGOs concerned
with these issues.

The application of the principle of self-determination with
respect to indigenous peoples particularly in the context of
relations within existing states is not yet fully settled in
international law. This is still in the process of being worked
out. The UN Working Group on Indigenous Populations has still not
completed its Declaration and it is expected to take a number of
years before it is brought forward for ratification, The meaning
of self-determination in this context, however is likely to be
affected by practical circumstances – just as has been the
experience elsewhere – which will inevitably vary from place to
place.

Peoples, not states or governments, have the right of self-
determination, as was eloquently acknowledged by the World Court
in the 1975 WESTERN SAHARA case:

It is for the people to determine the destiny of the
territory and not the territory the destiny of the
people.

The territory of Quebec, as such, has no right of self-
determination. This right inheres in the people, and the people
alone, and cannot be exercised on their behalf. If the Quebecois
and Quebecoises claim a right of self-determination, it is only
because they can establish their credentials as a people. But by
doing this, they implicitly recognize an equivalent right for
other peoples living within the territory. The Algonquins are
“peoples” within the meaning of international law. They clearly
have the right of self-determination.

Of further relevance is the general international law
doctrine of succession to rights and duties of the prior state in
the event of revolutionary changes of circumstances, including
separation. Specific means must be taken prior to any contemplated
separation to identify rights and interests of affected peoples
and nations and practical means must be found to safeguard these
rights and interests. In the absence of consent, it is difficult
to see how this duty to safeguard can be upheld if the change has
the effect of disrupting or seriously altering the geographical
continuity of a nation and its territory as would be the case here
if Canada splits into two states from the perspective of
international law with Algonquin communities and territories being
located in both new entities.

Further, this line of reasoning is strengthened to the extent
that the rights and duties of Canada, with respect to the
Algonquin Nation are themselves derivative from the British Crown.
whether these relations can be altered unilaterally is legally
doubtful, especially if there are adverse effects on a protected
nation such as the Algonquin Nation.

Finally, it should be stressed that the right of development
rests with peoples, not with states. According to Article 1 of the
U.N. Declaration on the Right to Development (1986), this is an
inalienable right which belongs to every human person and all
peoples. Article 1.2 states:

The human right to development also implies the full
realization of the right of peoples to self-
determination, which includes, subject to relevant
provisions of both International Covenants on Human
Rights, the exercise of their inalienable right to full
sovereignty over all their natural wealth and
resources.

The whole instrument was endorsed by Canada, and adopted by a vote
of 126-1, with 8 abstentions, by the U.N. General Assembly. The
right of development includes the right of peoples to develop in
their own way. This is especially important far those forms of
development which are sensitive ta environmental values. This
sensitivity to environmental values is an acknowledged achievement
of indigenous peoples and is fully consistent with the image of
sustainable development so persuasively emphasized by the
Brundtland Commission Report “Our Common Future”.

5. SUMMARY AND CONCLUSIONS

Summary

In summary, the position of the Algonquin Nation is as
follows:

(1) It is a fallacy to suggest that, in terms of aboriginal
rights, modern Quebec is the successor to New France. Quebec
is a successor to British colonies known as Quebec (1763-
1774; 1774-1791); Lower Canada (1791-1841) and Canada [East]
(1841-1867). Owing their existence to British colonial law,
all of these jurisdictions have been subject to common law
aboriginal title. That is to say, the doctrine of aboriginal
rights – which has passed into Canadian common law – applies
equally to modern Quebec.

(2) In the same way, Quebec’s present boundaries are the
creation, not of French colonial law, but of various Imperial
and Canadian enactments. These include the Royal Proclamation
of 1763, the Quebec Act of 1774, the Imperial Order in
Council of 1791 dividing Quebec into Upper and Lower Canada,
the British North America Act, 1867 and the boundary
extension acts of 1898 and 1912 which added the Abitibi and
James Bay regions. All of these enactments either explicitly
or implicitly acknowledged pre-existing aboriginal rights.

(3) The Algonquin Nation holds aboriginal title to its
traditional lands in Quebec. This has now been recognized in
Section 35 of the Constitution Act of 1982. The Algonquin
Nation has never ceded or surrendered its aboriginal title.

(4) The Algonquin Nation were acknowledged as allies, not
subjects, of the Crown – as was recognized to have been the
situation with the Hurons in the Sioui case of the Supreme
Court of Canada. When the French were conquered, the Indian
Nations – including the Algonquins – negotiated separate
agreements with the British. Their relations with the French
and the English were on a nation-to-nation basis. This is
reflected in the Royal Proclamation of 1763.

(5) when French civil law was reintroduced into Quebec in
1774, it was never intended that aboriginal people would be
subject to its provisions. They were to be governed according
to their own usages and customs. Algonquin peoples have
retained their inherent right to self-government.

(6) Not only do the Algonquin people have rights, the Crown –
presently represented by Canada – has obligations which have
been acquired from Britain following patriation. In Canadian
law, Canada owes a fiduciary duty to the Algonquin peoples to
protect their aboriginal title to lands in Quebec. This is
because aboriginal title can only be surrendered to the
Federal Crown. According to the Supreme Court of Canada, the
federal fiduciary duty is a constitutional duty and it is
enforceable at law. And this is reinforced at the
international level by the special responsibility of
governments in relation to the rights of indigenous peoples.

(7) In the past, the Crown has failed miserably in protecting
the interests of the Algonquin Nation to lands in Quebec. The
Crown in right of Canada has allowed the Crown in right of
Quebec to make massive encroachments on Algonquin lands
without ensuring that there was first a negotiated
settlement. In light of this, it is unreasonable to expect
the Algonquin Nation to rely on mere promises or pledges that
a sovereign Quebec would adequately respect their most sacred
rights.

(8) Recent experience of the Algonquins of Barriere Lake
confirms this reluctance. A trilateral agreement signed in
August of 1991 with Canada and Quebec is a joint project to
create an integrated resource management plan for La
Verendrye Park. It was intended to incorporate Algonquin
traditional knowledge and to protect Algonquin traditional
practices. But Quebec is not respecting this agreement.

(9) As a consequence of the Royal Proclamation of 1763,
common law aboriginal title, the fiduciary duty of the
Federal Government and s. 35 of the Constitution Act. 1982,

(a) Any constitutional changes affecting the title
of the Algonquins in Quebec requires Algonquin
consent; and

(b) Quebec cannot legally secede from Canada with
Algonquin lands without Algonquin consent.

(10) Self-determination for Quebec would lead to the
redefinition of the boundaries of Canada. Under international
law, the rights of aboriginal peoples and nations within both
states would be compromised. The process of separation cannot
be insulated from these rights by claiming that it is carried
on within a state in accordance only with domestic law. This
assertion has acquired extra force recently with the
increasing recognition that Indian nations are subjects of
international law that are deserving of special protection
because of their vulnerability and the degree to which their
survival as a nation is at risk.

(11) Peoples, not states or governments, have the right of
self-determination, as was eloquently acknowledged by the
World Court in the 1975 WESTERN SAHARA case:

It is for the people to determine the destiny of the
territory and not the territory the destiny of the
people.

The territory of Quebec, as such, has na right of self-
determination. This right inheres in the people, and the
people alone, and cannot be exercised on their behalf.

(12) If the Quebecois and Quebecoises claim a right of self-
determination, it is only because they can establish their
credentials as a people. But by doing this, they implicitly
recognize an equivalent right for other peoples living within
the territory. The Algonquins are “peoples” within the
meaning of international law. They clearly have the right of
self-determination.

(13) Any secession by Quebec from Canada would rupture the
integrity of the Algonquin Nation and its territory. The
tragedy of the Kurds shows what happens when peoples are
caught within the boundaries of different states. Article 32
of the ILO Convention No 169 (1989) implicitly establishes
the responsibility of governments to uphold the political
unity and territorial integrity of indigenous peoples.
accordingly, the Algonquin people possess the right to
approve or disapprove the creation of any new state which
would affect the status of their traditional lands and the
unity of their people.

(14) What is also relevant is the international law doctrine
of succession to rights and duties of the prior state in the
event of revolutionary changes of circumstances – including
separation. Specific means must be taken prior to any
contemplated separation to identify rights and interests of
affected peoples and nations and practical means must be
found to safeguard these rights and interests.

(15) Professor Henri Brun has suggested to this Committee
that aboriginal rights in an independent Quebec could be
explicitly guaranteed in a separate clause of the new Quebec
constitution – one which could only be amended with their
consent. But the promise to protect the right is not enough,
because the fundamental right of self-determination is being
denied. The essential part of self-determination is full
participation in the process as a distinct people. This
includes the right to give or withhold assent.

(16) Just as with the right of self-determination, the right
of development rests with peoples, not with states. According
to Article 1 of the U.N. Declaration on the Right to
Development (1986), this is an inalienable right which
belongs to every human person and all peoples. Article 1.2
states:

The human right to development also implies the full
realization of the right of peoples to self-
determination, which includes, subject to relevant
provisions of both International Covenants on Human
Rights, the exercise of their inalienable right to full
sovereignty over all their natural wealth and resources.

The whole instrument was endorsed by Canada, and adopted by a
vote of 126-1, with 8 abstentions, by the U.N. General
Assembly.

(17) The right of development includes the right of peoples
to develop in their own way. This is especially important for
those forms of development which are sensitive to
environmental values. This sensitivity to environmental
values is an acknowledged achievement of indigenous peoples
and is fully consistent with the image of sustainable
development so persuasively emphasized by the Brundtland
Commission Report “Our Common Future”.

(18) The Algonquin people have had over a century of bitter
experience with maldevelopment in the Province of Quebec.
Accordingly, the political leadership of Quebec lacks
credibility on this range of issues. In this regard, any
accession to sovereignty which would give a new state called
Quebec even more control over resources on Algonquin lands is
totally unacceptable.

Conclusions

You can’t have double standards when it comes to self-
determination. If Quebecois and Quebecoises want to claim self-
determination for themselves, then realize that we have it too.
Because self-determination exists in a people, in their language
and culture, in their connection with the land.

We do not want our rights affected any more than they are
now. There are Algonquin people living both in Ontario and in
Quebec. Look at Temiskaming. Their Reserve is in Quebec, but at
least half of their traditional lands are in Ontario. Many
community members live on the Ontario side. Temiskaming people go
back and forth all the time. They visit. They hunt, fish and trap.
They work in all sorts of jobs. They go to the doctor. They shop.
Why should you or the federal government be able to stop them from
doing any of this?

For better or for worse, Algonquin people have been part of
Canada for a long time. We made solemn agreements with the white
people. We believed the promises made to us by the Great Queen in
England. We aren’t prepared yet to give up on that reality. And
certainly not when plans for sovereignty are being made without
us.

Some of you tell us we will be better treated in an
independent Quebec. Why should we believe you? It was the Quebec
provincial government that flooded our lands, and put us in jail
for hunting and trapping. And Quebec is still letting timber
companies rape our land.

I want you to think of a clock. The twelve hours represent
all of human history on this land you call Quebec. French-speaking
people have been here since 5 minutes to 12. English-speaking
people have been here since 3 minutes to 12. But we Algonquins
have been here all along. And we’ve done a lot less damage than
you have in your few minutes.

We plan to be here for another 5,000 years.

Meegwetch.

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