1 IN 1989 THE FEDERATION of Newfoundland Indians began legal action in the Federal Court of Canada to have its members recognized as status Indians under the terms of the Indian Act and to force the federal government to recognize their rights and to provide them with the same benefits accorded to other status Indians in Canada. Representing seven local bands and three regional bands of the Mi’kmaq Nation living in Newfoundland, the Federation claim was based on the fact that no mention was made of aboriginal peoples in the Terms of Union signed by Canadians and Newfoundlanders in 1948 and that, when Newfoundland entered Confederation in 1949, responsibility for Newfoundland’s aboriginal peoples was left in the hands of the provincial government and not, as many might have assumed, transferred to Ottawa.1

2 After Confederation a number of federal-provincial agreements were negotiated, including the 1954 Labrador Health Agreement, but these arrangements focused on the Inuit and Innu peoples of Labrador. They were not extended to the Mi’kmaq on the island of Newfoundland, and they did not involve the application of the Indian Act to the aboriginal peoples of Newfoundland. Moreover, in the 1980s, the members of one band of Mi’kmaq — the Conne River (Miawpukek) Band at Conne River, Bay d’Espoir, on Newfoundland’s southern coast — were given recognition as status Indians. In 1978 the Conne River Band had formed its own separate group and was not a member of the Federation of Newfoundland Indians, and the Federation asked that the Newfoundland Mi’kmaq living outside of Conne River receive the same treatment as those members of the Conne River Band, and, indeed, the same treatment as the other Mi’kmaq in Canada.2

3 The issue is a complex one, but the basic questions remain: were the native peoples of Newfoundland merely ignored or were they specifically excluded from the Terms of Union; why was the Indian Act not extended to Newfoundland; and, given that responsibility for aboriginal peoples is clearly a federal responsibility under the Constitution Act of 1867, why were the native peoples of Newfoundland left under the jurisdiction of the provincial, rather than the federal government at the time of Confederation? This essay examines these questions in the context of Canadian and Newfoundland native policy in the 1940s and suggests that the potential loss of citizenship for Newfoundland’s native peoples was an important factor in the decision to withhold the application of the Indian Act. While there were relatively few tangible benefits for Newfoundland’s native population from being citizens, the fact of citizenship held great symbolic importance for those who negotiated the Terms of Union in 1948.

*

4 It is difficult to be precise about the size of the aboriginal population of Newfoundland and Labrador at the time of Confederation. In 1949 the Bureau of Statistics estimated the total Inuit population of Labrador at approximately 700. In addition, there were some 272 Innu in Labrador, the largest community living in the area around Davis Inlet. On the island of Newfoundland itself the numbers were harder to determine, but the Bureau of Statistics estimated that there were over 530 native people, mainly Mi’kmaq, living there.3

5 Part of the problem was that in the early years of the Commission of Government there was no government agency responsible for aboriginal affairs in Newfoundland.4 The Hudson’s Bay Company operated trading posts in Labrador, traded with and supplied goods to the Inuit and Innu, while Moravian missionaries provided limited educational services. In 1942 the Hudson’s Bay Company closed its trading posts. These facilities and the company’s operations were then taken over by the government of Newfoundland. Responsibility for native affairs was given to the Newfoundland Department of Natural Resources and relations with the aboriginal peoples of Labrador were put under the ‘Northern Labrador Trading Operations,’ while policing and administrative duties were assumed by the Newfoundland Ranger Force.5

6 Even less attention was afforded the Mi’kmaq of Newfoundland who, despite the existence of the Conne River community, were widely believed to be completely assimilated with the European population and scattered in communities across the island. The disappearance of the large caribou herds and the collapse of the trapping business early in the twentieth century destroyed much of the traditional way of life of the Mi’kmaq, and to outsiders they were seen largely to have become Europeanized in language, religion, dress, and occupation. Inter-marriage with the non-native population had increased, and the Newfoundland government made no special arrangements for dealing with the Mi’kmaq.6

7 Newfoundland’s native policy was essentially one of neglect based on ignorance, and it differed from Canadian policy in a number of important ways. Canadian Indian policy was made in Ottawa and based on the reserve system. The Indian Act legally defined who was an Indian, excluded others, and placed limitations and restrictions on the rights of aboriginal peoples. The ultimate goal of Canada’s policy was assimilation and it was to be achieved through the enfranchisement of the native peoples. Moreover, in 1939, the Judicial Committee of the Privy Council decided that the Inuit of Canada were to be regarded as Indians, at least for administrative purposes, although they were not made wards of the federal government.7

8 Newfoundland’s native policy was less defined and paternalistic in nature. Having no legislation comparable to the Canadian Indian Act, few restrictions were placed on Newfoundland’s aboriginal peoples before Confederation and little differentiation was made between the Indian and Inuit populations. The policy — or lack of a policy — was also, by default, less coercive in that there was no need for either the voluntary or forced enfranchisement of aboriginal peoples because they already possessed essentially the same citizenship rights as other Newfoundlanders (with the exception that the Labrador Inuit could not purchase alcohol).8 Given the state of native policy in Newfoundland it is not surprising that little attention was given to aboriginal affairs in the constitutional debate over Newfoundland’s future that emerged in the years following the end of the Second World War.

9 The background of the debate over and the events leading to Confederation are well-known and need only be briefly reviewed here.9 With the election of the Newfoundland National Convention on 21 June 1946, a process was begun to return democratic government to Newfoundland after more than a decade of rule by the appointed Commission of Government. Committees were established by the Convention to study a variety of subjects including the fisheries, mining, forestry, agriculture and local industries, and these committee reports were submitted for debate in the Convention. The issue of Confederation was often raised in the course of the debates, and the Confederates found a champion for their cause in J.R. ‘Joey’ Smallwood, a Convention delegate. However, it was not the purpose of the National Convention to negotiate with the Canadians; its mandate was to come up with recommendations to be placed in a national referendum.10

10 Early in 1947 permission was granted to the National Convention to send a delegation to Ottawa to explore the issue of Confederation with the Canadians, and preparations to receive this delegation were underway well before it arrived in Ottawa on 24 June 1947. At the end of October 1946 the federal government established two committees: the first an interdepartmental committee comprised of officials in various government departments; the second a small Cabinet Committee. The Interdepartmental Committee on Canada-Newfoundland Relations was set up to study the problems and costs involved in Confederation with Newfoundland and it was charged with coming up with recommendations for the government on possible terms of union. The Cabinet Committee on Newfoundland was the more powerful body; it supervised the Interdepartmental Committee and made the decisions on what would be presented to the full cabinet for final agreement.11 On 19 June, only a few days before the delegation arrived in Ottawa, the Cabinet discussed the issues and agreed:That, in the forthcoming discussions, the delegation from the Newfoundland Convention be informed that, should the people of Newfoundland indicate a desire for union with Canada, the government would be prepared to offer to the island the position of a Canadian province and to accord it the treatment accorded other provinces.12

11 The first official meeting between the Newfoundland delegation and representatives of the Canadian Government took place on 25 June 1947. The leading Newfoundlanders were Gordon Bradley (who chaired the delegation) and Joey Smallwood, but the delegation also included Thomas Ashbourne, Charles Ballam, Rev. Lester Burry, P.W. Crummey, and Gordon Higgins. On the Canadian side the team consisted largely of the Cabinet Committee on Newfoundland, and included, among others, Louis St. Laurent (External Affairs), J.L. Ilsley (Justice), C.D. Howe (Reconstruction and Supply), Frank Bridges (Fisheries), Brooke Claxton (National Defence), and Douglas Abbott (Finance).13

12 The purpose of the Newfoundlanders’ visit was to explore the idea of union between Canada and Newfoundland and there were many important issues to be discussed, including tariffs, trade policy, the Labrador boundary, a number of social and economic issues ranging from divorce to the sale of margarine, and the more general question of whether Newfoundland would be an economically viable province or if it would need substantial subsidies. Native issues, however, were not of major concern; and it appears that no significant action was taken with respect to aboriginal peoples, either in St. John’s or Ottawa, before the Newfoundland delegation arrived. The published proceedings of the National Convention include almost 2,000 pages of debates and reports, but native issues were not discussed in any meaningful way by that body before the delegation left for Ottawa. In addition, there were no native representatives on the Newfoundland delegation or native officials accompanying it to Ottawa, and there is no evidence (and it was unlikely) that there were any prior discussions with native representatives in Newfoundland or Labrador before the delegation left for Ottawa.14

13 The Canadian representatives were no better prepared. It is not surprising that little was known of the native people in Newfoundland; it was, after all, a separate country and there was only occasional interaction when jurisdictional matters arose along the Labrador-Quebec border.15 Prior to the arrival of the Newfoundland delegation, however, all relevant government departments in Ottawa were asked to compile information on the costs of union with Newfoundland, especially for the extension of services to the new province. Indian Affairs in Canada was administered as a branch of the Department of Mines and Resources, and it concluded that:for extending to natives in Newfoundland (including Indians and Eskimos) the type of services the Indian Affairs Branch now renders in the provinces — $50,000.00 per annum. It is difficult to estimate capital outlay because we do not know what buildings would be available. Probably an additional $50,000.00 should be estimated to cover construction, reconstruction and improvements.16In addition, the Newfoundlanders were provided with a document that outlined the workings of the Canadian government and Canada’s constitution, including references to the handling of Indian affairs in Canada at that time.17 Otherwise, the Canadians do not appear to have taken any steps to prepare a position on aboriginal issues with respect to Newfoundland other than that which might be inferred from the aforementioned Cabinet decision of 19 June. The minutes of the Cabinet Committee on Newfoundland and the Interdepartmental Committee contain no references to the native peoples of Newfoundland, and none of the four sub-committees established within the Interdepartmental Committee dealt with native issues.18

14 When native issues were raised by the Newfoundland delegation during the 1947 discussions it was usually in the context of other matters. For example, at the 2 July 1947 plenary session, the Newfoundlanders asked the Canadian representatives about voting rights in federal and provincial elections, and in their reply the Canadians noted that "certain groups not entitled to vote in provincial elections were not entitled to do so in federal elections," adding that "Indians and Eskimos were regarded as wards of the federal government and as such were not entitled to vote. If, however, they surrendered their rights as wards and assumed citizenship, they became eligible to vote."19

15 Aboriginal issues were raised a second time at this meeting under the general area of education. The issue of denominational education was of great concern to the Newfoundland delegation. Newfoundland operated separate denominational school systems and the Newfoundlanders were very much interested in the Canadian system and whether or not Newfoundland would be able to maintain its own school system after Confederation. This concern for education aroused interest in native issues, and "whether denominational or State schools were used in the education of Indians and Eskimos." The Canadians responded rather vaguely that the "general federal practice has been to cooperate with both provincial authorities and religious groups in Indian education, using whichever seemed appropriate to local conditions."20 This settled nothing, of course, and the issue of denominational education remained temporarily unresolved.

16 The two delegations met in full plenary session only three times (25 June, 2 and 7 July) before they decided to establish a series of sub-committees "to explore more fully and more expeditiously than would be practicable in general meetings a number of subjects which would require to be dealt with in detail as a preliminary to considering the question of union."21 Eleven sub-committees were established including Transportation, Economic Development, Veterans’ Benefits, and Public Debt, and one to deal with ‘Indians and Eskimos.’ The members of this last committee included two Canadian civil servants, C.W. Jackson and R. Hoey, the Director of Indian Affairs in the Department of Mines and Resources, along with Smallwood, Ashbourne, and Burry of the Newfoundland delegation. R.A. MacKay, who was an official in the Department of External Affairs and probably the most knowledgeable Canadian official on Newfoundland affairs, also participated, although unofficially. No member of the Cabinet Committee on Newfoundland or of the Cabinet was appointed to this sub-committee.

17 The creation of the sub-committee on ‘Indians and Eskimos’ was quite possibly a response to the queries about native education raised by the Newfoundland delegation. Its purpose was vaguely defined and reflected the fact that little planning had been undertaken on these issues. And it was specifically focused on the native peoples of Labrador. The sub-committee was tasked "to bring together and examine information on the numbers, economic conditions and general situation of the Indians and Eskimos of Labrador and how they would be provided for in the event of union."22 The committee, however, did not actively pursue matters for some weeks. As late as 13 September, one member of the committee, Rev. Burry, raised the issue of native people at a meeting of the two delegations, noting that "it would be helpful to have a clearer picture of the position of Indians and Eskimos in Labrador in the event of union."23

18 An informal conversation was held between MacKay, Smallwood, and a few others on 17 September, and a few days later, on 24 September, a full meeting of the ‘Indians and Eskimos’ sub-committee was convened. The meeting provided the opportunity to exchange information. The Newfoundlanders supplied material concerning the numbers and economic conditions of Newfoundland’s aboriginal peoples; and the Canadians, in turn, provided copies of the Indian Act and described how it applied to the native peoples of Canada. One document given to the Newfoundlanders at this meeting provided a list of benefits, services, and rights that would apply to the native peoples of Newfoundland after Confederation. The list included such things as medical services, education, exemptions from land tax, and the right to family allowances, but it was also noted that in the Canadian system Newfoundland’s aboriginal peoples would not be entitled to vote, use alcohol, or receive old age pensions. In addition, it was "pointed out ... that in the event of Newfoundland becoming a province of Canada the Indians and Eskimos would be the sole responsibility of the federal government."24

19 The final meetings with the Newfoundland delegation were held at the end of September 1947, but native issues were again not seriously addressed. A full report of the discussions was compiled and it included a number of appendices, including "A Preliminary Statement Regarding the Position of Newfoundland’s Indians and Eskimos in the Event of Union." This appendix was essentially a revised version of the document given to the Newfoundlanders on 24 September, although a number of important changes were made to the list of regulations and benefits provided for aboriginal Canadians. The most important change followed the sentence: "The right of full franchise and full citizenship, if the Indian in question can prove that he is no burden on the province or municipality." A new sentence was added: "In the event of an Indian assuming the status of full citizenship, he ceases to be regarded as an Indian and is no longer entitled to special benefits accorded to Indians."25 This was a statement of what already applied in Canada, but it was the first time this line of thinking appeared in these discussions, one that would later be used as a justification for not extending the Indian Act to Newfoundland.

20 During the final stages of the discussions and in the weeks following the departure of the Newfoundlanders, the Canadians put the final touches on what would form a basic offer of terms of union. Again, aboriginal issues were not high on the agenda. However, in the early drafts for the proposed arrangements, there were a few references to native peoples when discussing welfare or public services to be provided by Canada after union. A statement of this nature remained, in one form or another, in the proposed arrangements until at least 27 October, until all references to native peoples were dropped in the final draft of the proposed terms. It is not clear whether the reference was dropped because the government had decided not to extend these services after Confederation or whether the government assumed that native peoples would be covered automatically. Additionally, it is not clear who was responsible for the removal of this reference to aboriginal peoples. Rough drafts in the personal papers of both R.A. MacKay and Brooke Claxton, the Minister of National Defence, who was closely involved in the process, contain a reference to ‘Assistance for Indians and Eskimos as provided under the Indian Act as amended from time to time’ under ‘welfare services,’ but the sentence is crossed out in pencil in both copies. Who did so remains a mystery, but it was not MacKay’s role to make or change policy; that responsibility rested with Claxton and the other members of the Cabinet Committee.26 In any event, the Cabinet approved the proposed arrangements on 28 October, and the ‘Proposed Arrangements for the Entry of Newfoundland into Confederation’ were sent to the Government of Newfoundland. The members of the National Convention first saw the terms on 6 November.27 And the ‘Proposed Arrangements’ that arrived in Newfoundland contained no explicit reference to aboriginal peoples or native issues or to the treatment of the native peoples of Newfoundland after Confederation.28

21 The National Convention discussed the ‘Proposed Arrangements’ over the next few weeks, but little attention was given to the fate of Newfoundland’s aboriginal peoples after Confederation. Given the state of Newfoundland’s existing native policy, the lack of knowledge about and the previous neglect of its native population, and the prevailing attitudes about native people in general, it is not surprising that leading figures in the unfolding debate over Confederation, like Smallwood, Peter Cashin, and Chesley Crosbie, gave scant attention to these issues. Aboriginal peoples were not mentioned in the proposed arrangements and few would have noticed or cared about their absence. For those involved, there were more pressing issues to be discussed, such as the financial aspects of the terms, the methods that would be used to implement union, and numerous other matters revolving around the pros and cons of Confederation.29

22 Events moved quickly in 1948, leading to the 22 July victory of Confederation on the second of two referendums. The debate over Newfoundland’s future was wide ranging, vigorous, and occasionally bitter, but at no time during either contest did aboriginal affairs or the treatment of native people in Newfoundland receive much public focus. It is possible that this lack of debate reflected the assumption that Newfoundland’s aboriginal peoples would be treated exactly the same as those in Canada and therefore no debate was necessary, but it is much more likely a reflection of the general lack of interest in native issues and ignorance of the affairs of aboriginal peoples in Newfoundland at that time.

23 In any event, on 27 July the Canadian government approved the results and decided to accept Newfoundland as a province.30 Preparations for the final negotiations began immediately in both St. John’s and Ottawa. The Newfoundland delegation was announced soon after the second referendum. It was different from the 1947 delegation in important ways in that it was appointed by the Governor of Newfoundland (not by the National Convention) and it was led by A.J. Walsh, a member of the Commission of Government. Other members of the delegation included Smallwood and Bradley (who were the leading Confederates) as well as Chesley Crosbie, John McEvoy, Philip Gruchy, and Gordon Winter. A number of informal meetings were held before the delegation left for Ottawa, but, again, native affairs were not discussed.31

24 The Interdepartmental Committee and Cabinet Committee on Newfoundland were re-established. The Cabinet Committee was similar in composition to the earlier one, and the reconstituted Interdepartmental Committee included officials from nearly every department in the Canadian government. Five sub-committees were set up and a smaller steering committee, chaired by R.A. MacKay, was established to oversee and co-ordinate the work. Much of the work of the Interdepart-mental Committee focused on the procedure for bringing Newfoundland into Confederation, but it also reached out to all departments to prepare for the administrative take-over and to anticipate any problems that might arise.

25 Like all government departments, the Department of Mines and Resources began to investigate the impact of Confederation on its operations, and it was here that a more formal departmental policy with respect to aboriginal peoples in Newfoundland began to emerge. As early as 20 May 1948, the Director of the Indian Affairs Branch reported that:So far as this Branch is concerned, it is not considered that any serious difficulties would arise as a result of a precipitated administrative change-over. As the Newfoundland Government does not administer the welfare of its native peoples, as in the case of Canada, and as missionary societies are largely responsible for such work in Newfoundland territory, any change-over along this line could be a gradual process and without danger of any dislocation of service or business during the change-over.32Nevertheless, on 29 July 1948, just a few days after the second referendum in Newfoundland, Mines and Resources established a departmental committee. It was chaired by Mines and Resources Interdepartmental Committee member R.K. Odell and was asked to examine the issues involved in the take-over. At the first meeting, the committee members discussed the ‘Proposed Arrangements’ of October 1947 and it was agreed that the director of each department branch would "gather information respecting Newfoundland."33 A part of this process was the sending of Dr. P.E. Moore, the Director of Indian Health Services, to Newfoundland to obtain, as departmental official T.R.L. MacInnes explained, "some information concerning Eskimos and Indians in Labrador and what services are now being provided for them by Newfoundland." There remained some uncertainty over how many native people there were in Newfoundland. As MacInnes reported: "It seems that there are some Indians in Labrador possibly a couple of hundred. Previously we thought these were migrants who really belonged to Quebec. An effort will be made to get information on their status."34

26 It is clear that no full understanding existed with respect to the native peoples of Newfoundland before the second referendum in 1948 and that the work of the Indian Affairs Branch was undertaken as if no firm commitments regarding native affairs had been made. The departmental committee met on 1 September and discussed the take-over in the context of two ‘classes’: in the first class were those services where there was certainty with respect to further action; and in the second class were those services where there was uncertainty. Under the second fell "Family allowances to, and care of, Indians and Eskimos." Regarding these matters "the action required from the date of Confederation will depend probably on agreements reached when the Newfoundland Delegation have their arranged conference with the Dominion Government."35 The lack of firm direction from above remained a serious problem for months and made it next to impossible for the Indian Affairs Branch to prepare for the administrative takeover after Confederation.

27 Without policy direction from the Cabinet or Cabinet Committee, the Mines and Resources departmental committee could only ask for more information and provide answers to government queries. Nevertheless, the department’s position on native issues had begun to take shape before the opening of the final negotiations with the Newfoundlanders, thanks largely to Dr. Moore’s report of his investigative trip to Newfoundland. Moore’s original report has not been found, but MacInnes summarized Moore’s findings for Odell, the chair of the departmental committee. His account deserves full treatment:There are about 1,200 aboriginees [sic] under Newfoundland jurisdiction, all in Labrador. Of these, roughly 300 are Indians, 600 Eskimos and 300 mixed Indian or Eskimo or white blood. Indians are found at Nain, Northwest River, Cartwright and Hebron.

The Indian and Eskimo territory overlaps more than in the Canadian Arctic and the population, consequently, is more mixed and intermarried.

Apparently no special services are provided for Indians and Eskimos. The whole Labrador region is treated as one unit and general administration and law enforcement is carried on by the Newfoundland Department of Resources, whose local administrative officers are known as ‘Rangers’ and in effect a combination of Canadian Northwest Territories administrative officers and Royal Canadian Mounted Police. There are no Government schools, but education is provided by the Grenfell and Moravian Missions with some financial assistance from the Government. Similarly, relief and health services are provided through these missions with Government assistance.

We are informed that all the natives of Labrador whether Indians, Eskimos or mixed or white blood, are citizens. This is an important consideration and it is suggested that it might be undesirable to have any of these people lose any of their citizenship rights or any part of them by reason of confederation. It is pointed out that the long term aim of Indian policy in Canada as borne out by the discussions of the Special Joint Committee of the Senate and House of Commons, is full citizenship. Incidentally, if they were taken over with ‘Indian status’ they would have to forgo rights to Old Age Pensions which they could otherwise have.

The Indians and Eskimos in Labrador have this now and if allowed to retain it their affairs would be dealt with by the new province or by general Dominion authorities as required and no special branch of Government agencies would be required.36

28 In a later memo to Deputy Minister of Mines and Resources Hugh Keenley-side, dated 25 September, MacInnes developed this line of thinking. No amendment to the Indian Act was necessary in order to extend it to Newfoundland, he wrote. But, he continued, the "operation of the whole of the Indian Act and of other statutes pertaining to Indians, above mentioned, should be postponed pending consideration of further information to be obtained from Newfoundland concerning the aboriginal population and their status." MacInnes went on to explain his recommendation:It may be said that special consideration has been given to information received to the effect that, at the present time, all aborigines under Newfoundland jurisdiction, whether of Indian, eskimo or mixed blood, are citizens and enjoy full citizenship rights, including the franchise.

In regard to the Indian Act, the suggestion has been made that certain sections, among which might be mentioned those dealing with the descent of property and use of intoxicants, might be subjects for special exceptions so as not to infringe upon any liberties or rights now possessed by Newfoundland aborigines. It has been pointed out, however, that practically all of the provisions of the Indian Act are of a restrictive nature in some way, and that it would be difficult to make selective exceptions from among them on any orderly or satisfactory basis.

It is thought that before any definite action is taken to apply the Indian Act or other legislation respecting Indians to any aborigines in Newfoundland, consideration should be given to the possibility of such aborigines retaining their present status of citizenship and being dealt with as part of the general population of the new Province, subject possibly to some special financial grant or assistance from the Dominion Government.37

29 It was not up to MacInnes, Keenleyside, and the others on the Department of Mines and Resources departmental committee or in the Indian Affairs Branch to make such decisions — that was for the Cabinet and government to decide.38 But clearly, Department thinking was moving towards not applying the Indian Act to Newfoundland but leaving the native peoples there as a provincial responsibility with Ottawa contributing funds for various services. If nothing else, Department bureaucrats were willing to delay the application of the Indian Act until a clearer picture emerged concerning the status of Newfoundland’s native peoples. Their reasoning was based on the belief that native peoples in Newfoundland had the same rights as non-native Newfoundlanders and, by extending the Indian Act to Newfoundland, Ottawa would be removing existing rights from the aboriginal people living there and imposing new regulations and restrictions on them. Other arguments, of a financial and administrative nature, were developed in subsequent months (in some cases after the signing of the Terms of Union), primarily that: native people in Newfoundland did not live on reserves (no mention was ever made of the Mi’kmaq community at Conne River) and that it would be impossible to introduce a reserve system there in the future; and more generally, that there were relatively few native people in Newfoundland (and there was confusion in Ottawa over the exact numbers at that time) and that administering their affairs under the Indian Act would be difficult at best.39

30 The first meeting of the Newfoundland and Canadian delegations took place on 6 October 1948. There was less pure ‘negotiation’ in this set of meetings, in that it was less a question of bargaining than it was a question of fitting Newfoundland into the existing Canadian system. Questions remained concerning the future of the Newfoundland Fisheries Board, over Newfoundland’s sterling debt, and concerning the American bases on Newfoundland territory. The main sticking point in the negotiations was financial and revolved around subsidies, debts, surpluses, and anticipated deficits. But even here there was often more discussion among the Canadian representatives than between delegations, especially on the question of whether or not the Canadian government could offer enough financial assistance to ensure the support of the Newfoundlanders without alienating the other provinces, especially the Maritimes.40

31 The day after the official opening of the negotiations, however, K.J. Carter, Secretary of the Newfoundland Department of Natural Resources, appeared at the federal Department of Mines and Resources for a meeting with departmental officials. He discussed a number of issues concerning his department, including native peoples. Carter essentially confirmed what members of the department had been thinking for several weeks, that the native peoples of Newfoundland were considered citizens, or at least had full rights of citizens. Carter included the "considerable number of Micmac Indians on the Island of Newfoundland. These are merged with the rest of the population and are not under restrictions even in regard to the purchase of liquor." Carter then reiterated that:in his opinion it would be desirable for the new Province to continue to administer the affairs of all the aborigines including the Indians, subject to a provision of appropriate grants or subsidies by the Dominion, rather than to transfer them to Dominion administration under the Indian Act in the case of Indians, or under the Northwest Territories Administration in the case of Eskimos.41This suggestion was discussed approvingly at different times with R.A. Gibson, the Deputy Commissioner of the Northwest Territories Administration and Major D.M. MacKay, Acting Director of the Indian Affairs Branch.42

32 The matter was discussed on a second occasion on 15 November, this time with Joey Smallwood in attendance. Documentation on this meeting is limited; there are no minutes and only references made after the fact appear to have survived. Smallwood claimed not to have been aware of Carter’s conversations with the Canadians and "had assumed that the administration of Indians in Newfoundland would be taken over by the Federal Government." Indeed, Smallwood was reported to have "appeared rather resentful that Mr. Carter had been carrying on negotiations and pointed out that decisions in such matters should rest with the delegation, not Mr. Carter."43 Smallwood was right to question Carter’s — or any other official’s — actions, but after discussing the matter with Major MacKay, he left the meeting apparently in agreement with what was being proposed. Keenleyside wrote:It is felt that it would be a retrograde step to deprive these Indians of any political rights or material benefits that they might enjoy under their present status. On this question, Mr. Smallwood made it very clear that in his opinion it would be most undesirable that any group of residents in Newfoundland or Labrador should lose any rights or benefits as a result of confederation. This view is in accord with the general aim of Indian administration in Canada which is, that, in due course, the Indians should take their place as full citizens of the Dominion.44

33 A significant gap was appearing on the Canadian side between the bureaucratic and political levels. The major sticking point in the larger union negotiations was financial — the size of the subsidies and special grants to be offered to the new province — and this issue dominated the discussions through November. But little action was taken on native issues, and some confusion arose, possibly because Smallwood failed to follow up on what he had discussed with the officials in the Department of Mines and Resources. On 19 November, the Newfoundland delegation enquired whether or not the Canadian government would reimburse the new provincial government for a number of items, including the trading posts in northern Labrador.45 If native peoples were to come under federal jurisdiction then Ottawa would take over financial responsibility for the trading posts. But, as Keenley-side noted in his response, after discussing it with Carter and Smallwood, "it was tentatively understood by this Department that the new Province of Newfoundland would carry on the administration of the affairs of Indians within its jurisdiction," and that would include the responsibility for the trading posts.46

34 When the issue of the trading posts was discussed at a meeting of the Sub-Committee on Finance and Economic Policy, however, there was some surprise concerning the contents of Keenleyside’s letter. Douglas Abbott, the Minister of Finance and one of the Canadian members of the committee, appeared unaware of the thinking of the Department of Mines and Resources and he "expressed some doubt as to whether the administration of Indian Affairs should be left with any province." Likewise, A.J. Walsh, the chair of the Newfoundland delegation, noted that "he had not understood that any arrangement had ever been tentatively agreed upon. So far as he was concerned, the matter was still unsettled."47 With only about a week or so to go before the official signing of the Terms, it appeared that the thinking on the political level still presumed that Ottawa would assume responsibility for native affairs in Newfoundland.

35 At this late stage the fate of the Indian Act would not be allowed to hold up the whole process and the matter remained unsettled while the negotiations over the Terms of Union were brought to a final conclusion. Early in December, Keenleyside reviewed and defended his department’s views, noting that "it was not intended to suggest that any definite agreement or arrangement had been made, as it is fully realized that this could only be done, even in a preliminary way, by higher authority."48 But at that moment there did not appear to be the will to settle the issue while other vital issues were hanging in the balance. Consequently, a few days later, after last minute discussions to iron out the details of the financial arrangements between Ottawa and St. John’s (but before any final decision was made on the issue of aboriginal peoples), the Terms of Union were approved by the Cabinet, and, on 11 December 1948, officially signed. No mention was made in the Terms of native issues or of the treatment of aboriginal peoples after the date of union, which was set for 31 March 1949.

36 Even though the Terms of Union were signed, the question of which government would be responsible for the aboriginal peoples of Newfoundland remained and in the following weeks the whole issue of native policy wound its way through the decision-making process in Ottawa. In early January 1949, J.A. MacKinnon, the Minister of Mines and Resources, informed the Cabinet Committee on Newfoundland (via its secretary J.R. Baldwin) of his department’s views on the question of extending the Indian Act to Newfoundland and asked for a decision.49 By 22 January a Memorandum for the Cabinet had been prepared and it was discussed by the full cabinet on 25 January. This document argued for delay and outlined the main points explaining why the Indian Act might not be extended to Newfoundland. Its ultimate argument was for more time rather than for a firm and final decision: "In these circumstances, it has been suggested that the Commission of Government might be informed that the Indian Act would not be brought into force in Newfoundland after union at least until such time as some satisfactory arrangement can be found."50

37 The Cabinet concurred, and on 25 January agreed that the "decision respecting the care of Indians and Eskimos in Newfoundland and Labrador following union be deferred until such time as a satisfactory arrangement could be made with the Provincial government after the election of a Provincial Legislature in Newfoundland."51 In other words, the government decided to postpone a final decision on the Indian Act until after Confederation, leaving things unsettled for the time being. The Newfoundland government was informed of this decision early in February. In a letter to W.H. Flinn, the Newfoundland Commissioner for Natural Resources, C.J. Burchell, the Canadian High Commissioner in Newfoundland, expounded what originally had come from the Department of Mines and Resources but now had become the conventional wisdom: "The understanding in Canada is that Indians and Eskimos have full status of citizens of Newfoundland. It would be difficult to provide them with the same benefits received by Indians in Canada unless they are placed on reserves and/or their status changed, and it would seem inappropriate to take any action to alter this status before Union." As a result, Burchell continued, "it is felt that the matter should be left in abeyance until after the establishment of a duly elected provincial government in Newfoundland, when the two governments might reach an agreement by consultation as to the course that should be followed."52 Flinn wrote his response in a hand-written note on the back of Burchell’s letter: "The proposal to leave the matter in abeyance until a provincial Government has been elected is satisfactory."53

38 In the end it seemed a relatively simple process not to extend the Indian Act to Newfoundland, thanks to Term 18 of the Terms of Union which states that all of Newfoundland’s laws in force at the time of union would continue "as if the Union had not been made" while Canadian statutes would come into force only when proclaimed by the federal and provincial governments. In other words, the administration of native affairs would remain the responsibility of the Newfoundland government until the Indian Act was proclaimed after the union. Conversely, the Indian Act could be withheld simply by doing nothing at all. The apparent contradiction with Term 3, which states that the BNA Act would apply to Newfoundland in the same way and extent as it did to all the provinces, was not addressed, and this decision sparked years of controversy and debate.54

*

39 Almost one year after the signing of the Terms of Union the prime minister was questioned in the House of Commons about the application of the Indian Act to Newfoundland and the apparent contradiction between the treatment of native people in Newfoundland and in the rest of the country. St. Laurent responded that discussions between Ottawa and St. John’s were continuing, but so far "there has not been found common ground with the government of Newfoundland as to which parts it would be practicable to attempt to apply and which parts would not fit the existing situation."55 Clearly, no real progress had been made to settle the matter. Finding the necessary ‘common ground,’ moreover, remained an elusive goal in the following years.

40 The status of Newfoundland’s native peoples, the application of the Indian Act, and the treatment of native peoples in Newfoundland after Confederation were never major issues for the Newfoundlanders and Canadians involved either during the negotiation of the Terms of Union or in the months leading up to the date of union in March 1949. In the view of the Newfoundland delegation there were far more important issues to be settled first. In the 1947 talks with the delegation from the National Convention, the discussion of native policy never went beyond generalities, likely based on the assumption that the federal government would assume the responsibility; only in the summer of 1948, after a brief investigation of the issue, did Canadian officials in the Department of Mines and Resources gradually come to believe that the best course to take would be to leave the management of native peoples in the hands of the provincial government (with the federal government making a financial contribution), or at least to delay the final decision until some future date. Their reasoning was based on the state of affairs in 1948. The goal of Canadian Indian policy was assimilation and it was felt that extending the Indian Act to the native peoples of Newfoundland would be a backward step because it would deprive them of rights that they already possessed. Applying the act would be difficult and it just did not make sense, in their minds, to take away rights from the native peoples of Newfoundland after Confederation, especially since it would appear to be contrary to Canadian policy with respect to its own native peoples.

41 Other explanations of this decision — that the Canadians wanted to save some money by leaving the responsibility for aboriginal affairs with the Newfoundland government or that the competing interests of the officials responsible for administering native affairs in Newfoundland and Canada influenced the final outcome — have some validity but only tell part of the story. Regardless of the confusion, the failure to achieve a consensus on aboriginal issues was not deemed of sufficient importance to hold up the Confederation negotiations, especially by late November 1948, and it was clearly seen as an issue that could be dealt with at a later date. Even if it was decided ultimately to apply the Indian Act it was considered advisable to implement it gradually, and only after more information was collected. By early 1949 the two sides officially agreed to step back from the matter altogether until after Confederation, leaving the question of responsibility for aboriginal affairs in Newfoundland to future discussion with an elected provincial government. As a result of doing nothing, however, the Indian Act was not adopted in Newfoundland at the time of union, no reference to aboriginal people or Indian affairs was made in the Terms of Union between Canada and Newfoundland, and the responsibility for the native peoples of Newfoundland remained in the hands of the provincial government in St. John’s.

42 Little attention was given to whether it was appropriate not to extend the Indian Act to Newfoundland, or to the impact that Ottawa’s decision would have on the native peoples themselves. Indeed, the one group that was absent from the whole debate was the group whose future was under consideration. At no time was any effort made to consult the aboriginal peoples of Newfoundland about their future. This was not unusual with respect to native affairs in Canada in the 1940s, but it did leave the whole process open to future criticism. Most likely, however, government leaders and policy-makers in both Canada and Newfoundland believed that the native peoples of Newfoundland would eventually be assimilated into the majority population and the problems of jurisdiction and responsibility would disappear.

43 Although of secondary importance during the Confederation negotiations, these decisions made in 1948-49 opened a new chapter in the history of government-aboriginal relations in Newfoundland and in Canada. Over the years the issue grew into one of great significance to the native peoples of Newfoundland, especially among those who felt excluded and denied the benefits and services accorded to other aboriginal people in Canada. There is a certain irony at work here, too. While the failure to extend the Indian Act to Newfoundland in 1949 came to be regarded as a denial of native rights, it was, in 1947-1948, an action understood at least by some members of the federal bureaucracy as a way to preserve the rights of Newfoundland’s aboriginal population, even if Ottawa’s ultimate goal was one of assimilation.

44 Unfortunately for the aboriginal peoples of Newfoundland, the situation was left unsettled at the time of Confederation in 1949. Some progress has been made, albeit at glacial speed. The Conne River Band was recognized under the Indian Act in 1984; in 1997 an agreement was reached with the Innu and a federal order-in-council authorized the treatment of the Innu as if they were registered under the Indian Act. A broader land claims agreement-in-principle was signed in 2001. Work also continues on the land claim of the Labrador Métis. Finally, in 2007, after many years of negotiation and legal action, the federal government and the Federation of Newfoundland Indians negotiated an agreement for formal Indian status in a ‘landless’ claim that will give recognition and services to the majority of Newfoundland’s Mi’kmaq people.56 The agreement-in-principle was ratified by the Federation membership in March 2008 and by the Canadian government in June 2008. Nevertheless, even though the policy made in 1948 was ostensibly a temporary one, sixty years later many of these matters remain unresolved.