The plight of the Indians in the provinces appears to be getting more desperate. To the extent that their economic and social position depends upon their ability to use the land and its renewable resources, they run into competition from other powerful economic interests such as farmers, miners, and loggers. From a different direction, they are also opposed by conservationists.

This competition for access to resources coalesces around two sources of legislative authority: the federal government's powers under section 91(24) of the Constitution Act, 1867, and its overall political, if not constitutional, responsibility for the welfare of aboriginal peoples; and the provinces powers under section 92 enabling them to regulate access to these important resources and pass environmental legislation-laws which inevitably impinge upon the aboriginal economy.

Most of the blame for the Indians' plight must rest with the federal government. At least three points can be made in the indictment of Ottawa.

First, between 1867 and 1888, the federal government laboured under a fundamental misunderstanding of its rights under section 91(24). Ottawa took the view that, because it had exclusive legislative power over "Indians, and Lands reserved for the Indians", it owned such lands. When the Indians surrendered their rights to these lands to the Dominion, the government believed that they became vested in it, and that it had a free hand to deal with them as it liked. Thus, typically, the numbered treaties contained promises by the federal government that it would set aside native reserves, to be carved out of the huge tracts that had been surrendered.

 However, this assumption turned out to be grievously wrong. In the St. Catherine's Milling case of 1888 the Judicial Committee of the Privy Council held that the benefit of these surrenders by aboriginal peoples inured not to the federal government but to the Crown, and that the lands fell to the provinces under section 109 of the Constitution Act, 1867. As a result, the federal government was not only saddled with the onerous financial obligations undertaken in the treaties, but, furthermore, it could not look to the provinces for reimbursement (so held in the Indian Annuities case in 1910). In addition, it lost its legal capability of delivering to the Indians the promised reserves, for it now became necessary to secure provincial co-operation, and, of course, the provinces refused to play ball. In Ontario, for example, the provincial government was successful in acting to protect lumber and mining interests, as Ottawa could not summon up the political will to get tough. Meanwhile, the Indians went without their reserves and, as a result, risked social and economic disintegration.

 Between 1867 and 1888, the federal government played for high stakes and lost; the St. Catherine's Milling case was a crushing blow. But what is quite unforgivable is that after the law had been authoritatively explained by the Privy Council, the federal government did not change its procedures in obtaining Indian surrenders. Instead of requiring and obtaining enforceable legal obligations or equivalents from the provinces before these surrenders or at least before transfer of the land to the provinces, Ottawa persisted in the same old course and played into provincial hands.

The Indians might have taken comfort from the federal government's power of disallowance under the Constitution Act; however, for reasons which had nothing to do with Ottawa's conception of its obligations toward the Indians, the disallowance power fell into desuetude. This was merely part of a wider trend in the development of constitutional principles and conventions in the Canadian body politic. But Ottawa should have been more vigilant in protecting the Indians. For example, it could have passed legislation inconsistent with provincial acts, thereby invoking the doctrine of paramountcy and, perhaps, assisting the Indians' cause. Instead, it did nothing.

Failing to act to protect the Indians is one thing, but passing responsibility for them to the provinces is something quite different. For a strong case can be made that provincial legislation that necessarily affects Indian rights, whether based on aboriginal rights, treaty rights, or a broader concept of "Indianness" or Indian status, is ultra vires to that extent. However, all such arguments were rendered irrelevant in practical terms in the 1950s when Ottawa enacted section 88 of the Indian Act. With this legislation, Ottawa abandoned any responsibility for the Indians in the provinces, for, subject to the terms of a treaty or other federal act, provincial laws of general application were declared to apply to the Indians in the provinces. Thus, the question of whether a provincial law applying to Indians might be overridden by general principles of constitutional law governing all Canadians is, for the most part, academic, because any such law is said by Ottawa to apply willy-nilly. The constitutional problem has been finessed by section 88, and the Indians are now in the grip of the provinces.

 Possibly the most useful thing Ottawa could do is simply repeal section 88 of the Indian Act. Meanwhile, narrow legalisms and pedantic opinions as to whether or not a "lawful obligation" has been breached, or whether the Indian right has been "superseded by law" rule the bureaucracy.

Although the new policy on claims is to be welcomed, therefore, and the federal government praised, let us not forget the past in assessing the future. Ottawa stands at the bar of public opinion. In considering their verdict on the new claims policy, Canadians might remember that Ottawa has a lot to answer for.

 Geoffrey Lester is a barrister-at-law in Melbourne, Australia, and a former legal adviser to Inuit organizations in Canada.