Hidden Terms of Union

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THE HIDDEN TERM OF UNION: THE FEDERAL DECISION TO ABANDON ITS CONSTITUTIONAL RESPONSIBILITY FOR THE WELFARE OF THE NEWFOUNDLAND MI'KMAQ IN 1949

By: Jerry Wetzel, B.A (Hons), LL.B. LL.M

EXECUTIVE SUMMARY: CONFEDERATION AND FEDERAL ABANDONMENT OF THE NEWFOUNDLAND MI'KMAQ

Prior to Confederation, none of the previous governments of Newfoundland, nor the Commission of Government had ever appointed a department or branch of government to be responsible for Indian and Inuit affairs. The Colonial Governments of Newfoundland did collect some numerical and residential information on the Newfoundland Mi'kmaw when it conducted censuses from time to time.

This lack of information and interest in the welfare of the Newfoundland Mi'kmaw people became apparent in the negotiations leading up to Confederation. Neither, the Newfoundland nor the Canadian officials had accurate information concerning the numbers of Mi'kmaw, their whereabouts, cultural survival or the fact that several reservations had been set aside for them in the 1870's and later in the 1920's by the Colonial Government of Newfoundland.

Between 1942 and 1948, during the preliminary negotiations on the terms of union between Canada and Newfoundland, the Government of Canada was also experimenting with the centralization of the Mi'kmaw people of Nova Scotia. The objective of Centralization was to reduce the administrative costs of the Indian Affairs Branch and promote the assimilation of the Mi'kmaq by bringing all Nova Scotia Mi'kmaq families together on two reserves, one in Cape Breton and one on the mainland of Nova Scotia. The small Mi'kmaq family groups on isolated rural reserves and the families who lived on the outskirts of Halifax were forced to up root themselves and move to one of the two reserves. The lack of planning and budgeting by the Indian Affairs Branch and the resistance of Nova Scotia Mi'kmaw families led to the Indian Affairs Branch abandoning this scheme in 1948.

In addition to the impact the failure of the Centralization program in Nova Scotia had on the thinking of senior officials in the Indian Affairs Branch, the Report and recommendations of the Special Committee of the Senate and House of Commons on the Indian Act (1946-1949) focussed their attention on the changes Parliamentarians wanted to make in Canada's Indian policy. The Special Committee's report emphasized that the goal of Canadian Indian policy should be the assimilation of Indian people so that they no longer had any special status as Indians. Indians would then no longer be the responsibility of the Federal Government, but just ordinary citizens of the provinces in which they resided and would receive the same services from the provincial government as other citizens of the province received.

In 1947, when potential terms of Union between Newfoundland and Canada were being discussed, Canada's officials took the position that Aboriginal Peoples in Newfoundland would come under the jurisdiction of the Canadian Government and its Indian Act. This position was put in writing as Appendix XI of the Terms of Union and became part of the agreed upon terms for Confederation between Canada and Newfoundland. However, between 1948 and April 1, 1949, senior Canadian officials deliberately hid Appendix XI by not acknowledging its existence. They claimed that there had been no final agreement on the "Term" that would define how the administration of Indian and Inuit affairs in Newfoundland would be implemented.

The argument that there was no "Term" in the Terms of Union that defined federal responsibility for Indian affairs in Newfoundland was placed before the federal Cabinet in 1948. At that time senior federal officials advised Cabinet that the Indian Act should not be brought into force in Newfoundland because the Terms of Union did not specifically allot that responsibility to the Federal Government. The officials further advised that the Special Committee of the Senate and House of Commons had recommended in 1948 that the objective of Canada's Indian policy should be the speedy assimilation of Aboriginal Peoples.

After Confederation federal officials advising Cabinet claimed, without documentary proof, that Newfoundland officials had advised federal officials that the administration of Indian and Inuit affairs should be undertaken by the Government of Newfoundland. However, documentary proof of such a position by the Government of Newfoundland has never been produced by federal officials in the 50 years since Confederation.

In regard to the Newfoundland Mi'kmaq, federal officials repeatedly advised the Federal Cabinet for 15 years after Confederation (1950-65) that provincial officials did not expect the federal government to take any responsibility for the Mi'kmaw families on the Island of Newfoundland. It was during that period that senior federal officials began creating rationales to justify the abandonment of federal constitutional and financial obligations for the welfare of the Newfoundland Mi'kmaw people.

In an attempt to prevent any appearance of responsibility for Aboriginal Peoples in Newfoundland & Labrador, federal officials did not bring the Indian Act into force in the province after Confederation. This was justified by the development of a primary rationale that claimed the negotiation of the Terms of Union had deliberately left this matter unfinished. Initially, federal officials thought that if the Indian Act was not in force, the Federal Government could claim that it had no responsibility for Aboriginal Peoples in the province. The underlying motives for this attempt to avoid federal responsibilities was the policy objective that Aboriginal Peoples should be assimilated as quickly as possible and cost savings for the Federal Government. Bringing the Indian Act into force in Newfoundland would require federal protection of Aboriginal Peoples and lands set aside for them. It would also require additional federal financial commitments and slow down the assimilation of the Newfoundland Mi'kmaq and other Aboriginal Peoples in Labrador.

In order to avoid having to undertake federal constitutional duties in respect of Mi'kmaq and other Aboriginal Peoples, federal officials developed a number of contrived rationales after Confederation to justify the Federal decision not to bring the Indian Act into force in Newfoundland & Labrador. Shortly after Confederation, the "Interdepartmental Committee on Newfoundland Indians and Eskimos" was formed. It was composed of senior federal officials who were to prepare advice for the Federal Cabinet concerning federal obligations and responsibility for the Newfoundland Mi'kmaq and other Aboriginal Peoples in Labrador. The senior officials who were responsible for this committee used it as a vehicle to develop and implement a new federal policy with respect to the assimilation of Aboriginal Peoples in Newfoundland & Labrador.

The Mi'kmaw families of Newfoundland and the Innu and Inuit families of Labrador were to become a Canadian experiment in forced assimilation. Newfoundland would be the first province in Canada where the federal Crown would avoid making treaties and exercising its constitutional obligations and responsibilities through the Indian Act to protect Aboriginal Peoples and their lands. Federal responsibility to organize Aboriginal groups, assume responsibility for colonial reserves, or establish new reserves, provide programs, services and other economic support for necessities of life and community development was to be avoided. In short, Federal officials developed a policy for abandoning federal constitutional and financial responsibility for the welfare of the Mi'kmaq and other Aboriginal Peoples in Labrador. Without federal recognition and protection, federal officials theorized that the assimilation of Mi'kmaq and Labrador Aboriginal Peoples would take place at a more rapid pace, as compared to those First Nations protected by the Indian Act in all other areas of Canada.

The principle arguments federal officials created to justify a new policy of forced assimilation by federal abandonment of its constitutional duties were:

the Terms of Union had not been completed with respect to this issue and the matter was to be finalized after a provincial government was formed;
the Aboriginal Peoples of Newfoundland and Labrador had been "enfranchised"[they could "in theory" vote] and therefore the Indian Act could not be applied to them;
the Mi'kmaq and Innu did not live on reservations;
the Aboriginal Peoples of Newfoundland & Labrador had intermarried with white people;
the Newfoundland Mi'kmaq were only a small group and provincial officials had indicated that the federal government need not concern itself with providing any services to them; and
federal officials claimed that Newfoundland wanted to administer Indian and Eskimo affairs in the Province. Federal officials saw this as an opportunity to further the Federal Government's objective of assimilating Aboriginal Peoples so that they would no longer have any special federal status. Federal officials claimed that it would be wise to ignore federal constitutional obligations and let the Government of Newfoundland legislate and administer Indian and Eskimo affairs in the province. This would expedite the assimilation of the Mi'kmaq and other Aboriginal Peoples in the province. It would also advance the objective of federal officials to shift the administration of Indian affairs to the provincial governments.

Between 1950-1964, senior federal officials who organized and ran the "Ad Hoc Interdepartmental Committee on Newfoundland Indians and Eskimos", or "ICNIE", deliberated about how to avoid taking direct responsibility for Aboriginal Peoples in Newfoundland and Labrador. These officials had requested legal opinions from federal Deputy Attorney Generals in 1950 and 1964 hoping that the opinions would support the policy they had been developing. Their policy asserted that the Government of Canada had no responsibility for Aboriginal Peoples in Newfoundland and Labrador. The legal opinions the ICNIE received did not support their position and they ignored the legal opinions of the Deputy Attorney's General for Canada. ICNIE officials continued to develop policy advice for Cabinet that was contrary to the legal opinions provided to them by their own Department of Justice.

When the Newfoundland officials began making requests for federal subsidies for the provincial services provided to Indian and Inuit peoples living in the communities where the province ran stores, the Federal Government agreed to a 10 year agreement (1954-64), but only for health services in relation to T.B. programs. Federal officials advised Cabinet to make this agreement for they feared that if the Federal Government refused Newfoundland's request, Newfoundland would ask the Federal Government to take over full and direct responsibility for Aboriginal Peoples in the province. This would create greater financial responsibilities for the federal government than if they contributed to a T.B. program. The Federal Government therefore decided it would be more cost efficient for it to enter into a cost shared T.B. program rather than risk forcing Newfoundland to demand that they take over their constitutional responsibility for Indian affairs generally.

Throughout the period of 1950-65, federal officials deliberately resolved not to bring the Indian Act into force in the province. Federal officials also used the province's lack of concern for the Mi'kmaw people on the Island to absolve themselves of any consideration for the welfare and needs of the Newfoundland Mi'kmaq and federal constitutional and financial obligations to them.

The policy of forced assimilation by abandoning its constitutional obligations for direct administration of Indian and Inuit affairs became a formal policy of the Government of Canada in May of 1965. At that time the Federal Government proposed that Canada and Newfoundland enter into a "Federal-Provincial Agreement for Financial Assistance to Native Communities in Newfoundland and Labrador".

This policy was formalized in a May 1965 Cabinet decision. Prime Minister Lester Pearson formalized the policy of assimilation by abandonment after 15 years of federal avoidance its constitutional responsibilities for federal assistance for Indian and Eskimo peoples in Newfoundland and Northern Labrador. This proposal by the Federal Government was offered because Premier Joseph Smallwood threatened that if the Federal Government did not start providing the province with funding for the administration of Indian and Eskimo affairs in Labrador, the Government of Newfoundland would ask the Federal Government to take over direct responsibility for Indian and Eskimo affairs in the province. The province adopted this position based on advice from J.W. Pickersgill, a Federal Cabinet Minister who was also a Newfoundland M.P. What the Government of Newfoundland ultimately wanted was federal subsidies for its operations in certain communities in Northern Labrador where it ran stores, fish plants and other community services.

In 1950 and 1964, Deputy Attorneys General for Canada had advised the ICNIE that the Government of Canada had a direct responsibility for all Aboriginal Peoples in Newfoundland & Labrador. They explained this was required by s. 91(24) of the constitution, which had not been amended by the Terms of Union. These opinions were included in the 1965 Memorandum for Cabinet. However, Prime Minister Pearson proposed, and his Cabinet adopted, a policy that was contrary to the federal legal opinions concerning federal constitutional responsibilities and obligations for the welfare of the Mi'kmaq and other Aboriginal Peoples in Labrador. The policy, formalized by Pearson after 15 years of unofficial implementation, willfully and deliberately sought to avoid all federal constitutional and financial responsibility for the Newfoundland Mi'kmaq. However, Pearson asked his Cabinet to approve some federal subsidies to the Government of Newfoundland for its administration of Indian and Inuit affairs in Northern Labrador. Pearson proposed to his Cabinet that the Government of Canada take the position that the Government of Newfoundland had the authority to legislate over, administer and manage Indian and Inuit affairs in the Province of Newfoundland & Labrador. This policy was not supported by any of the agreed upon terms that formed the Terms of Union, the B.N.A. Act, or the legal opinions of federal Deputy Attorneys General.

Prime Minister Pearson and his advisors ignored the opinions provided by various Deputy Attorneys General for Canada and developed a policy of abandonment as being the first step in a modern Canadian policy toward the assimilation of Aboriginal Peoples. The objective of this policy was the abandonment of federal constitutional and financial obligations and the encouragement of a Province to assume responsibility for Aboriginal Peoples. The Newfoundland Mi'kmaw people were to be the group to suffer the most damage and disadvantage from this experiment in assimilation.

Under this Cabinet policy, Federal-Provincial cost sharing agreements with Newfoundland were approved. Through these agreements (they have been renewed every five years), the Government of Canada provided monies to the Government of Newfoundland for reimbursement of the costs of some programs and services the province administered to Aboriginal nations in Labrador. The Government of Canada attempted to implement a similar policy in the rest of Canada in its 1969 White Paper on Indian policy. This policy was repudiated by First Nations throughout the country. The Government then withdrew their proposed changes in Indian policy. While this policy was never implemented in Canada, it was maintained in Newfoundland and Labrador by withholding the information about the policy and avoiding discussion of it with the Newfoundland Mi'kmaq or other Aboriginal Peoples in Labrador.

Although the Government of Canada knew of the existence of Mi'kmaw communities on the Island, they had absolved themselves of making any contact with them. Federal officials claimed that provincial officials had told them that the federal government was not expected to provide any services to the Mi'kmaw people on the Island. The federal policy that was established allowed the Government of Newfoundland to determine what communities would be considered "Native" for the purpose of the cost sharing agreements. No Mi'kmaw communities were designated as "Native" communities by the Province until Conne River in 1973. Conne River was designated after its representatives made strong representations to both Governments. Federal officials agreed to ConneRiver's inclusion under the Federal Provincial cost sharing agreement because they were afraid if they did not, the Conne River Mi'kmaq would demand to be registered under the Indian Act. Subsequent representations from other Mi'kmaw groups to both the province and the federal government to be included under these agreements were refused.

By deliberately avoiding its constitutional and financial responsibility for the welfare of the Newfoundland Mi'kmaw people, the Government of Canada discriminated against them and denied them access to federal services for Indians under the Indian Act. The federal policy not to bring the Indian Act into force in Newfoundland and to permit the Government of Newfoundland to exercise legislative and administrative authority over Indian affairs was not made under the authority of the Indian Act. Rather, it was a Cabinet policy which was made to appear to be consistent with the negotiation of the Terms of Union, but which was actually in conflict with federal constitutional obligations under s. 91(24) of the B.N.A. Act, 1949. This policy, to avoid federal constitutional and financial responsibilities and encourage the Province to administer Indian and Inuit affairs, was not only unconstitutional, but in 1977 became a violation of s. 5 of the Canadian Human Rights Act, and in 1985, became a violation of s. 15 of the Canadian Charter of Rights and Freedoms. This policy denies the Newfoundland Mi'kmaw people access to all programs and services federal departments provide to Indian peoples who have been registered under the Indian Act and placed on reserves by the Federal Government.

Both levels of Government ignored the Mi'kmaw communities and family groups on the Island of Newfoundland from 1949 to present. The Indian Act has never been brought into force in Newfoundland and the Province of Newfoundland has refused to include them under the Federal-Provincial Agreements for Native Peoples. In 1965, when the Innu and Inuit peoples of Labrador began receiving sub-standard services (compared to the Federal services other First Nations or Inuit communities in Canada received directly from the Federal Government) under the Federal-Provincial Agreements administered by the Government of Newfoundland, these minimal services were not extended to the Newfoundland Mi'kmaq (with the exception of Conne River in 1973).

In 1982, when the Conne River Band had requested that the other Mi'kmaq communities be included under the Federal-Provincial Agreement, the Minister of Indian Affairs gave his commitment to the Federation of Newfoundland Indians (who represented the Mi'kmaw families outside of Conne River) that he would include them under the Federal-Provincial Agreement within the next few years.

In 1984, when the Conne River Band was established under the Indian Act, the same Minister of Indian Affairs advised Cabinet that he had given the Federation of Newfoundland Indians his commitment to fund them for the purpose of establishing their eligibility to also be registered under the Act. The Minister's commitments have been undermined and ignored by the officials of the Department of Indian Affairs and Northern Development since that time.

In 1997, the Federal Cabinet passed an Order in Council deeming the Labrador Innu people at Sheshetshieu and Davis Inlet, Labrador to be the same as Indians who were registered under the Indian Act living on reserves. All Federal Cabinet Ministers were authorized to provide the Innu with the same federal services, grants or programs that they provided to registered Indians who lived on reserves. Thus, in 1999, the Conne River Mi'kmaq and the Labrador Innu have access to all federal programs and services for registered Indians who live on reserves. The two to three thousand other Newfoundland Mi'kmaq people residing in family groups in different areas of Newfoundland are still treated as if the Federal Government has no responsibilities for them. What Appendix XI of the Terms of Union promised has been kept hidden by the Federal Government.

Thus, compared to other Aboriginal Nations in Canada, and within the Province of Newfoundland, the Newfoundland Mi'kmaw families outside of Conne River have been discriminated against by both the Newfoundland and Canadian Governments with regard to their access to federal funds and services for Indian peoples. This discrimination is based on a policy made by the Prime Minister of Canada and approved by Cabinet. This policy was not developed under any statutory authority, but as a result of the federal argument that the Terms of Union were incomplete in respect to which level of Government was to be responsible for dealing with Aboriginal Peoples in the Province of Newfoundland & Labrador.

The Newfoundland Mi'kmaw people are the only Aboriginal Peoples in Canada that had a policy of federal abandonment applied to them at the time the territory or colony they resided in became part of Canada.

The policy implemented by the federal government had discriminated against the Newfoundland Mi'kmaq in several ways:

Newfoundland is the only province in Canada where the Federal Government has not brought the Indian Act into force and applied it. When the other territories of colonies where incorporated into Canada, the Federal Government made treaties with each distinct group of First Nations peoples, set aside reserves for them, established Bands for them under the Indian Act, registered the members of each distinct group as Band members and began providing services to them. This did not take place in Newfoundland due to a federal decision to implement a different Indian policy in Newfoundland that abandoned federal responsibility for the welfare of the Newfoundland Mi'kmaq. This decision is discriminatory and has denied federal services for Indian peoples to the Newfoundland Mi'kmaq.
When Prime Minister Pearson and his Cabinet insisted, in defiance of the legal opinions of its own justice officials, that the Government of Newfoundland had the constitutional authority to administer Indian affairs and signed a Federal-Provincial Agreement with the Government of Newfoundland to assist the province in doing so, the Federal Government discriminated against the Newfoundland Mi'kmaq. Federal officials knew that the Government of Newfoundland had not wanted the Federal Government to provide any services to the Newfoundland Mi'kmaq and also knew the Government of Newfoundland intended to leave the Newfoundland Mi'kmaq out of this Agreement. As a result, the Newfoundland Mi'kmaq have not received any of the minimal services this Agreement has provided to the Innu and Inuit Peoples in Northern Labrador. This makes the Federal Government the lead conspirator, with the Government of Newfoundland, to deny the benefits of federal funds to the Newfoundland Mi'kmaq.
When the Government of Canada made a decision to limit the application of the Indian Act to the establishment and registration of the Conne River Band in 1984, that decision itself was discriminatory in that it denied a federal service, recognition under the Indian Act, to the other Newfoundland Mi'kmaq. Whether the establishment of the Conne River Band is valid is a question yet to be answered since it is questionable whether the Indian Act has ever been brought into force in Newfoundland.
The manner in which the Government of Canada has treated the Newfoundland Mi'kmaq in relation to the disclosure and discussion of Canadian Indian policy as compared to disclosure and discussion of federal Indian policy with other First Nations in Canada is discriminatory and has deliberately prevented the Newfoundland Mi'kmaq from having the opportunity to reject the discriminatory federal Indian policy that has been imposed on them since 1949. The refusal to disclose to the Newfoundland Mi'kmaq the discriminatory policy the Federal Government applied to them prevents the Newfoundland Mi'kmaq from accessing the services the Government of Canada has provided to all other First Nations in Canada.
The decision by the Federal Cabinet to attempt to extend the Indian Act to the Conne River Mi'kmaq, but not other Newfoundland Mi'kmaq is discriminatory and prevents the other Newfoundland Mi'kmaq from accessing national programs and services for Indian peoples registered under the Indian Act.
The 1997 Order by the Governor in Council to "deem" the Innu of Sheshatshieu and Davis Inlet to be the same as Indians registered under the Indian Act and living on a reserve for the purpose of being eligible to receive the same federal programs and services as Indians on reserves receive is discriminatory since it has not also been extended to the several groups of Newfoundland Mi'kmaq on the Island of Newfoundland. They are still denied access to federal programs and services for registered Indians on reserves.

The Terms of Union of Newfoundland with Canada was a treaty and contains provisions relating to the welfare of the Newfoundland Mi'kmaq. What the Federal Government did on the eve of Confederation, and for the past 50 years, has dishonoured the treaty in relation to the welfare and protection of the Newfoundland Mi'kmaq. This has dishonoured the Crown and has caused untold damage to the Newfoundland Mi'kmaq people. For 50 years the Federal Government has imposed a discriminatory policy on the Newfoundland Mi'kmaq.

What Canada has done to the Newfoundland Mi'kmaw people disregards the most basic human rights, the right to ones culture and identity. The policy of discrimination the Federal Government has imposed on the Newfoundland Mi'kmaq for the past 50 years must end. It was not made pursuant to the Indian Act, but was a policy made by Cabinet to impose a new Indian policy of forced assimilation on the Newfoundland Mi'kmaw. This policy abandoned the Federal Government's constitutional responsibilities and established an unconstitutional provincial regime for the administration of Indian affairs that deliberately singled out the Newfoundland Mi'kmaq for discriminatory treatment.

Moreover, the secretive process by which the Federal Government has implemented and maintained this policy has attacked the fundamental human rights of the Newfoundland Mi'kmaq. It does not uphold the honour of the Crown and is contrary to the democratic principles of government in Canada.

For 50 years the very identity and existence of the Newfoundland Mi'kmaq has been suppressed. Their families have suffered untold psychological, cultural and economic harm. They have been denied the federal programs and services that Parliament approved and were intended to protect Newfoundland Mi'kmaq families and assist them to organize and develop their communities.

What the Newfoundland Mi'kmaq now request from the Prime Minister is that he assist us in obtaining treaties, compensation, registration and the reserves that will allow us to organize our people, restore our culture and begin to develop our communities.

The Conne River Mi'kmaq, the Labrador Innu and the Labrador Inuit all enjoy access to and the benefits of federal programs and services for Indian peoples who live on reserves and are registered under the Indian Act. However, the Newfoundland Mi'kmaw families outside of Conne River are still denied these benefits. What the Newfoundland Mi'kmaq now request is justice, equity and compensation.

To paraphrase former Chief Justice Dickson's observation in R. v. Sparrow (1990), 56 C.C.C. (3d) 263, Canada cannot recount with any pride its treatment of the Newfoundland Mi'kmaw people.

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