Confederation and its Legacy for First Nations

First, what is Confederation?

            Confederation refers to the process by which four British colonies in 19th century North America united to form a single state[1] known as the Dominion of Canada. Put simply, Confederation marks the beginning of the country we call Canada today. Confederation was the product of negotiations between delegates from modern-day Quebec, Ontario, New Brunswick, and Nova Scotia, who met at three conferences over the course of two years to discuss joining together and forming a union. In 1867, when Queen Victoria gave her approval of the colonies’ plan to unite, it was considered a momentous occasion. July 1st, 1867, was set aside as the day upon which the union took effect and Canada was born.

Did First Nations have a formal role in Confederation?

            First Nations[2] did not participate in the discussions leading up to Confederation. There were no delegates from any First Nations at the Charlottetown Conference, where representatives from the colonies first met to discuss a possible union, nor were First Nations included in the final discussions of union that took place in England in 1866. Most importantly, there were no delegates from any First Nations at the Quebec Conference of 1864, where participants agreed on the major features and basic structure of the future Canadian state.

Did First Nations express an opinion on Confederation?

            There is evidence that some First Nations expressed hope that Confederation would lead to better treatment and/or protection from local governments and settlers. Two examples of this come from the Maliseet in New Brunswick and the Mi’kmaq on Prince Edward Island who had both experienced poor treatment from the local colonial governments prior to Confederation. 

What was the effect of Confederation on First Nations people in Canada?

            Confederation produced the Constitution Act, 1867, a formal document setting out the legal framework for the new Canadian state. In the Constitution Act, 1867, the newly created federal Parliament was granted the power to make laws in relation to “Indians, and Lands reserved for the Indians.” This federal head of power[3] is still included as part of Canada’s legal framework today in section 91(24) of the Constitution Act, 1867. Section 91(24) of Canada’s constitution has been relied on to pass laws that greatly affect First Nations. For example, less than ten years after Confederation, Parliament used this power to pass the Indian Act. The Indian Act has been used to control everything from the way First Nations govern themselves to who could be considered an “Indian” and allowed to live on reserves. The Indian Act also outlawed cultural and social practices that were important to First Nations. Finally, the Indian Act was used to launch a Canada-wide effort to assimilate First Nations children through the residential school system.

Is Confederation solely to blame for all these discriminatory laws?

            In some ways, these discriminatory laws were not simply the product of Confederation and the Constitution it produced. The pre-Confederation colonial governments also had power to pass laws targeting First Nations. For example, before Confederation, the colony of “Canada” (Ontario/Quebec) had passed the Gradual Civilization Act which served as a precursor to the post-Confederation federal law known as the Gradual Enfranchisement Act. In addition, there was at least one government-funded residential school at the time of Confederation. A further example of a pre-Confederation discriminatory law is the colony of Nova Scotia’s 1854 Act Concerning the Elective Franchise, which denied First Nations the right to vote. In this sense, the laws passed after Confederation represented a continuation of the status quo rather than a radical departure from it. However, there is no doubt that, by establishing a central government in Ottawa with the authority to pass Canada-wide laws aimed at First Nations, Confederation greatly facilitated the administration of discriminatory laws with assimilatory policy goals. To illustrate, the number of residential schools in Canada increased eighty-fold after Confederation. It is hard to imagine that an effort as coordinated as that could have existed without a union of the various pre-Confederation colonies.

How did First Nations respond to Confederation?

            First Nations in Canada responded differently in the aftermath of Confederation. For example, in Ontario, where the post-Confederation Indian Act was strictly enforced and the new federally administered Indian Departments were well-funded, there is evidence of at least one official response from a First Nation. In 1876, thirty-three Onondaga Chiefs wrote, “…one says we are subjects to the British Government and ought to be controlled under those Laws which was past [sic] in the Dominion Parliament by your Government…we will now inform you and your Government, personally, that…we will follow our Ancient Laws and Rules.”[4] It seems clear that, at least for the Onondaga Chiefs, Confederation and the laws passed after it represented a departure from pre-Confederation colonial policies. To them, this change demanded a response. On the other hand, there is less evidence of a response to Confederation in the Maritimes, where the federal Indian Departments were poorly funded. The sad reality for the First Nations in the Maritimes is that the pre-Confederation hope that a federal authority might offer increased protection and support for their interests never seems to have materialized. On the other hand, this same federal neglect also meant that the most discriminatory provisions of the Indian Act were not as strictly enforced. This meant that for First Nations in New Brunswick and Nova Scotia, as one scholar puts it, “… the coming of Confederation did not mark an abrupt shift in their lived experiences.”[5]

Was the situation created by Confederation & the Constitution Act, 1867 ever remedied?

            Although fully answering this question is beyond the scope of this blog post, it is worth guiding the reader to at least a few developments in the legal landscape in Canada since Confederation. The most important of these are contained in the Constitution Act, 1982. The Constitution Act, 1982 introduced important updates and additions to the Constitution Act, 1867. However, the Constitution Act, 1982 was produced with nearly the same absence of consultation of First Nations that plagued the Constitution Act, 1867. Yet, owing to the activism of First Nations, especially through campaigns like the Constitution Express, which saw 1,000 members of the First Nations travel to Ottawa to protest, a provision providing constitutional protection for Aboriginal and treaty rights was ultimately included as section 35 of the Constitution Act, 1982. The success of this provision in protecting Aboriginal rights has been debated, but it is clear that today governments wishing to pass laws that infringe on Aboriginal rights can be challenged in court and forced to justify their actions. 

            In addition, there have been two important commissions established to research the past harms caused to First Nations in Canada. The first of these, the Royal Commission on Aboriginal Peoples, was established by the federal government in 1991 to investigate the historic injustices perpetrated by the federal government against First Nations. It was also tasked with producing recommendations on how the relationship between First Nations and the government might be reconciled moving forward. The Royal Commission released its report and recommendations in 1996. Unfortunately, many of its recommendations have never been implemented. Another federal committee, the Truth and Reconciliation Committee, was launched in 2008 to investigate the legacy of residential schools in Canada. The creation of the Truth and Reconciliation Commission was mandated as part of a settlement between residential school survivors and the Government of Canada. It released a set of Calls to Action in 2015. The federal government has worked to implement some of its recommendations.

Footnotes

[1] I am using the term “state” in the colloquial sense. It has a precise meaning at international law. The point at which Canada satisfied the requirements of sovereign statehood at international law has been suggested by the Supreme Court of Canada to be at least fifty years after Confederation.

[2] First Nations refers to people who are not Inuit or Metis and covers over fifty linguistic-cultural groups. At the time of Confederation, the affected First Nations were those with a presence in Ontario, Quebec, Nova Scotia and New Brunswick.

[3] A federal head of power gives Parliament in Ottawa the authority to make laws relating to the subject-matter of that head of power.

[4] Keith Smith, ed, Strange Visitors: Documents in Indigenous-Settler Relations in Canada from 1876, (Toronto: University of Toronto Press, 2014), p.17.

[5] Walls, Martha Elizabeth, "Confederation and Maritime First Nations", (2017) 46:2 Acadiensis: Journal of the History of the Atlantic Region / Revue d’histoire de la region atlantique, p. 155-176.