Article Critique on "Aboriginal Persons"

Article Critique 8 pages (2596 words) Sources: 1

[EXCERPT] . . . .

Aboriginal Persons

Over the last several years, the issue of aboriginal rights has been increasingly brought to the forefront in Canada. This is because there are constant ongoing negotiations with many Indian tribes to come up with a permanent solution. The problem is: how can the government establish some kind of economically viable program that is addressing the rights of the people. Where, they do not have the same kind of status as independent nation states. Yet, they want to ensure that there are greater amounts of local autonomy. This is troubling, because it means that the process of negotiations become even more challenging. As the Indians, want to be treated with a number of predetermined rights when dealing with the government. While various government officials, think that these kinds of preconditions are making the underlying situation much worse. To fully understand what is taking place, we will be examining the book Justice for Canada's Aboriginal People. During the course of the review we will look at: the issues that are facing the aboriginal people of Canada, the legal protections that they have available and how women will be affected by self-government. Once this occurs, is when we can offer specific insights into the overall opportunities challenges facing these people.

Summary of Issues in the Area

The biggest issues facing the Indians of Canada are that they are being treated as second class citizens. This is because the government has been ignoring their basic needs. While at the same time, they have been looking at these people as a group who are a nuisance that do not matter. This has led to increased amounts of corruption among government officials. (Dupuis 112 -- 115)

A good example of this occurred in 2000, with the public health care funds that were supposed to help improve the lives of aboriginal people in Fort Alexander, Manitoba. As, this money was never received by the tribal authorities. Instead, they were diverted by Health Canada to pay for a cruise for 70 of its employees. This is troubling, because when these kinds of situations are taking place. It means that the relationship between the government and Indian officials has deteriorated. As no one has any kind of faith in the process and they are demanding even greater rights. This is leading to an impasse on negations for access to aboriginal lands for the extraction of raw materials. (Dupuis 112 -- 115)

Summary of the Literature (Article)

In the book Dupuis (2002) talks about how the relationship between the government and natives has been tenuous at best. This is because the moment the European explorers arrived in North America, meant that there would be never ending amounts of competition for the natural resources and control of large sections of territory. For the Indians, this led to conflicts and tension with the explorers. However, these views have been changed of the course of time, to reflect the more liberal attitudes in society. Despite these shifts there is still are tremendous amounts of prejudice that are directed at aboriginal people. This has caused heated amounts of tension between the government and tribal officials.

What Dupuis does, is to take these ideas and examine how they are impacting various tribes. This is accomplished by looking at: the disadvantages / separation, their status as second class citizens and possible solutions that have been introduced. As far as the disadvantages / separation are concerned, aboriginals were not considered to be citizens of Canada. Instead, they were seen as a part of the Indian movement that had loyalties to their tribe over that of the nation. This caused many native people to be left out of various social programs. Once this occurred, the overall amounts of separation between these individuals and ordinary Canadians became even more extreme. This led to opposing views about the contributions of aboriginals in history and an increase in the belief that they were out of touch with the rest of society. Over the course of time, this contributed to increased amounts of corruption and a lack of focus on sending any kind of resources to these areas. This is the point that there was a misallocation of resources and the underlying amounts of corruption would increase. As a result, many of the various tribal officials have demanded that their predetermined rights are respected by government officials at all times. This is significant, because it is showing how the disadvantages and separation have led to an increase in tension between: various aboriginal groups and the government. (Dupuis 13-25)

Throughout the 19th and 20th centuries, Indians were treated as second class citizens in Canada. This is because; there were a series of legal proceedings that would have an impact on how these groups were treated. The most notable is the court case Worcester vs. Georgia. Although this is a U.S. Supreme Court case from 1832, this ruling would have an impact on how aboriginal people were treated in Canada. As the court determined that native inhabitants were considered to be occupants of the land. However, when it comes to the question of who is considered to be the rightful owners of the land. This designation was given to the government or the European powers in charge of a particular region. The reason why, is because when they first discovered the area they specifically claimed the land for a particular nation. This meant that they have legal ownership under the law. As, the government has the right to: sell, forcefully remove inhabitants, purchase the land from them or exercise their sovereign usage of it. This is problematic, because this led to actual practices that took into account the needs of government over that of the Indians. Once this occurred, is when many of the native inhabitants were treated like second class citizens. As, they were: not legal owners of the land that they lived on with the government reserving the right to remove them from the location at any time. Over the next several decades, this meant that many of these people were sent to areas where the land was not considered to be as valuable. (Dupuis 114 -- 128)

To deal with possible issues of discrimination, a series of court cases and laws would dramatically influence the outcome of how negations would be conducted in the future. What happened was, the underlying views of aboriginal rights dramatically shifted with the 1973 Supreme Court case Calder vs. British Columbia. In this decision, the court determined that aborigines are entitled to the same protections as ordinary Canadians under the law. (Dupuis 114 -- 128)

Moreover, they found that these groups were entitled to certain protections based upon the fact that this is considered to be their historical lands. Evidence of this can be seen with the Justices saying in the summary decision, "Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a personal or usufructuary right. What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was dependent on the goodwill of the Sovereign." This is significant, because it is showing how legal precedent began to support the right of Indians to their land. (Dupuis 114 -- 128)

In the next decade, there would be continuing cases that would affirm the Calder vs. British Columbia decision. A good example of this can be seen with the case Guerin vs. The Queen. In this follow up decision, aboriginal groups sued the government asserting their rights to historical lands based upon previous court decisions and the fact that their ancestors have lived in the area. In this Supreme Court case, these rights were affirmed with Justice Dickson saying, "Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. While their interest does not, strictly speaking, amount to beneficial ownership, neither is its nature completely exhausted by the concept of a personal right. It is true that the sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true, as will presently appear, that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians. These two aspects of Indian title go together, since the Crown's original purpose in declaring the Indians' interest to be inalienable otherwise than to the Crown was to facilitate the Crown's… READ MORE

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