Part 2 of this week’s blog: No more “Reconciliation Sticks”

“Justice delayed is justice denied.” It’s an old legal maxim.

Reconciliation, or “the concept of reconciliation” – as the government of Canada talks to itself about the tool in secret policy drafts (that got leaked) – is demonstrably a mechanism of delay.

What’s wanting in Canada is justice. What’s abundant is denial. Reconciliation has ballooned into a public relations campaign, a substitute for justice, and it’s based on judicial tinkerings with constitutional instruments that they have no power to change or interpret.

However.

Chief Justice Antonio Lamer came up with “reconciliation,” and the novel idea that the Canadian constitution really just provides a “platform from which to negotiate Aboriginal rights.”

      Most people don’t think of their constitutional rights as bargaining points, but Lamer understood his role in the judicial branch to be one of saving the Canadian society from the liabilities it has incurred over 150 years of ransacking non-treaty and treaty lands belonging to Indigenous Peoples.

And to ensure Canadian industry wouldn’t be inconvenienced by the rule of law – much like Attorney General Blake did in 1875. Edward Blake approved British Columbia’s legislation over all the non-treaty nations west of the Rocky Mountains, giving ownership of it all to itself. Blake didn’t intervene, although the BC Lands Act had already been disallowed once, and just said: “great inconvenience and confusion might result” if the Act was denied. Then he passed the Indian Act. Interesting? More on that in Part 3 – Reconciliation as Subterfuge, tomorrow.

But we don’t have a nickel for every time a Canadian representative, sworn to truth and justice and the honour of the Crown, used his position to stonewall access to justice. The extractive industries have that – multiplied by many billions – and the entire Canadian culture revolves around employment there.

So we’ll just press on with getting to the start of the “national Day for (Truth and) Reconciliation” this weekend.

“Reconciliation” – an origin story

It was August of 1996, and British Columbia’s war for the woods (and rivers, and sub-surface mineral rights, and investment certainty) was in full swing. Let’s set the scene.

The Sto:lo community of Cheam was under siege by the RCMP and Canadian military, again, for fishing on the Fraser river just like they have done throughout history. They are, after all, the people of the river.

Less than a year before, 300 provincial police and RCMP had surrounded about fifteen people at Ts’peten (Gustafsen Lake) near the central Secwepemc settler town of 100 Mile House. BC’s Attorney General gave the cops a “green light to shoot to kill” the “terrorists” (two Secwepemc political and spiritual leaders, and a number of Sundancers and supporters at a Sundance site, where they fenced out free-range cows). That story is too long to tell here, suffice to say it was the largest Canadian ground assault since the Korean War. More on that on Part 4 – Enforcement of Reconciliation. But briefly, while that siege was going on:

In a Supreme Court of Canada sitting in Vancouver, Chief Justice Antonio Lamer – the same fellow who coined the term “reconciliation” a few months later – was asked to address the constitutional question raised by the Secwepemc in their refusal to be ordered off their own land. He was asked to do it on September 15, 1995, as the bullets flew and the Armoured Personnel Carriers rolled and the fixed-wing aircraft circled the site, transmitting video feed of the people in the camp below. He was told that opening a hearing on the matter must stop the assaults, going on across the country even to the east coast, which were based on the forcible assumption of crown jurisdiction on non-treaty Indian Land, and the equal and opposite Indigenous resistance. Lamer was asked to consider that the contentious lands were “reserved to them or any of them as their Hunting Grounds,” as per the Canadian Constitution.

Lamer decided not to hear arguments.

            The week before, in Ipperwash, Ontario, Premier Mike Harris had instructed the police to “get the Indians out of the park,” and they did kill someone: Dudley George, for protesting the forcible withholding of land from the people; for trying to hold the land for his people.

In 1996, the entire hereditary government of Nuxalk had just been arrested at Ista, near Bella Coola, for blocking the logging of the island. The island is the site of the nation’s creation story, where Tatau and Manakays brought the Nuxalk people into being many thousands of years ago.

The Royal Commission on Aboriginal Peoples, prompted by a military siege of Mohawk people at Kahnawake in 1990, was about to release its final report in November, 1996.

That is not all, but it brings us roughly into the context of R. v. Van der Peet, where “reconciliation” was born.

Dorothy Van der Peet, a Sto:lo woman, had been charged and convicted for selling ten sockeye salmon to a neighbour. The case was appealed to the Supreme Court of Canada.

Chief Justice Antonio Lamer wrote the ruling; decided that such subsistence activity as selling ten fish for $100 was not the kind of commercial activity prohibited by the BC Fisheries Act; that, instead, this was the type of activity protected as an Aboriginal right under Section 35 of the Canadian Constitution, and no justification could be found to infringe it.

Then he made a lot of observations and suggestions about the Canadian Constitution and the Aboriginal rights in it. He said,

“Section 35(1) provides the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, customs and traditions, is acknowledged and reconciled with the sovereignty of the Crown.” (emphasis added)

            That was his first trick. Section 35 just says, “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” They’re not “acknowledged and reconciled.”

He said, about fishing and jurisdiction and owning the land: “It is those distinctive features that need to be acknowledged and reconciled with the sovereignty of the Crown.”

Translation: I’m deciding here and now that the correct interpretation of Section 35 is that Indigenous sovereignty is gone; Canadian sovereignty is paramount; and Canadian courts – without having acquired jurisdiction that belongs to the Indigenous Nations – will decide what to do about the Indigenous claims arising.

So that’s called a “coup” in rule of law societies. In the 180-page Van der Peet ruling, Lamer repeated the statement, explaining it in different ways, almost 40 times.

            Justice Beverly McLachlin, also present to decide the van der Peet case, actually put the word in quotation marks when she respectfully disagreed with the Chief Justice’s use of it (paragraph 310 of the ruling). She also noted his approach was “more political than legal” (302).

            The most rounded version of CJ Lamer’s fishing-case-come-treatise-on-reconciliation-instead-of-rights is probably this:

“It is possible, of course, that the Court could be said to be “reconciling” the prior occupation of Canada by aboriginal peoples with Crown sovereignty through either a narrow or broad conception of aboriginal rights; the notion of “reconciliation” does not, in the abstract, mandate a particular content for aboriginal rights.  However, the only fair and just reconciliation is, as Walters suggests, one which takes into account the aboriginal perspective while at the same time taking into account the perspective of the common law. True reconciliation will, equally, place weight on each.” (50)

For the record, Canadian courts have yet to place weight on the aboriginal perspective.

Before 1996, no one had ever heard of reconciling Aboriginal societies.

The term “reconciliation” as used in the August 1996 Van der Peet ruling was transmitted immediately to the Report of the Royal Commission on Aboriginal Peoples, November 1996. It certainly did not have any content, mandated or not, in Aboriginal rights.

It then took a headline place in the government of Canada’s response to the RCAP, in the 1998 “Statement on reconciliation.”

Policy makers ran with it, as if the constitutional rights of those pre-existing societies, confirmed by the Constitution Act 1982 as the “existing Aboriginal and treaty rights”, such as:

“the several Nations or Tribes of Indians with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them or any of them as their Hunting Grounds.”

And,

“…no Governor or Commander in Chief…do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands…upon any Lands whatever, which, not having been ceded to, or purchased by Us as aforesaid, are reserved to the said Indians, or any of them.”

… could actually be reconciled away.

The province of British Columbia came up with its own “Recognition and Reconciliation Legislation” in 2009. It was given a swift death by the grassroots Indigenous, who demanded the draft legislation be presented in meetings across the province. More on that tomorrow, in Part 3 – Reconciliation as Subterfuge.

Courts across Canada use Lamer’s term for… whatever they want. Reconciliation has a real ring to it. It just doesn’t mean anything, other than the further abandonment of respect for autonomy and self-determination (the constitutional instruments affirmed in Section 35), for forced assimilation, annexation, and subjugation to the whims of Canadian judges.

Rest in… reconciliation, Antonio Lamer.

Lamer was appointed Chief Justice of the SCC on Canada Day, 1990. It so happened that this appointment replaced Chief Justice Dickson only sixty days after Dickson had found in favour of acquitting Ronald Sparrow, a Musqueam fisherman convicted of using a gill net that was too long.

            Lamer was probably pretty clear about the nature of his assignment.

In September 1999, Lamer presided over a decision to confirm the rights of Miq Maq people to fish and sell their catch year-round, as per the Articles of Montreal, 1760, and the Two Row Wampum, 1761. He was visited forthwith by a delegation of three of his peers, who are reported to have told him his work was “not what it once was.” Lamer resigned in the year 2000. He went back to work with a big law firm, and died in 2007.

Is the Aboriginal perspective really required for reconciliation?

If you’re Indigenous, a Canadian judge is probably just about the last person you would want to be influencing a national strategy called “reconciliation.” You’d gotta know it wasn’t going to be what it’s made to sound like.

            Abuses in court are absolutely epic. It spans the decades as surely as the tide comes back to cover the beach. Grand Chief George Manuel used to say, “every time we go to court we lose a right.”

in 1997, BC’s Chief Justice, Al MacEachern, told the Gitxsan and Wet’suwet’en that their lives were “nasty, brutish, and short.” Supreme Court of Canada’s (SCC) Chief Justice McLachlin told the Tsilhqot’in, in 2014, that their title was subject to “certain carve-outs.” Nobody knows what that means; it’s not a thing. The Lil’wat Peoples Movement went before thirteen judges in 1991, trying to defend themselves from charges of disobeying an injunction to get off their own road and let the loggers in. Not one of the thirteen judges would allow their defense to be entered! But, aside, one of those judges did explain himself to the Elder who approached him about this problem: “Who would I drink cocktails with, if I sided with you?”

            You can’t raise the constitutional question in the lower courts, so you can’t appeal it to the Supreme Court. Maybe “reconciliation” doesn’t actually mean considering the Indigenous point of view? It seems like a pretty flexible concept, as long as it’s bending in favour of “the broader society.”

            The SCC, in Paul, 2003, confirmed that a native man cannot cut a few trees to finish building his house. Four trees, which his community had approved when he asked about it. The court confirmed that BC’s Forestry Appeals Board was completely qualified to handle the matter of Aboriginal title arising in that case. Then the SCC decided in 2015 that a regional district was well within its right to approve logging out an area full of culturally modified trees: the manager had considered everything, and made a good decision. The Minister also made a good decision in Ktunaxa, 2017, apparently: the Kootenay People’s sacred mountain – center of their spiritual life and home of the Grizzly Spirit – was not sufficiently important to deny the local economy its ski resort.

But we don’t have a nickel for every time a judge wiped out a key area of Indigenous culture, language, law, and heritage. The politicians, judges, and their friends have that – times many billion.

So we must end here, with this key reflection:

The colonial courts don’t have jurisdiction over people who never joined with Canada; never made any treaty or constructive arrangement to be governed; and never sold their land. And Canada’s courts are not impartial: they are squarely on the side of the crown, a portrait of which is in every court room.

So there aren’t going to be any fair trials where they are concerned, not around here. Not even constitutional rights: just “reconciliation.” We’ll find out what that is on a case by case basis, apparently, as Aboriginal rights are squared away to complement the Canadian plans.

Thank you very much for reading. Takem i nsnukw’nukw’a.

Check in tomorrow for Part 3: Reconciliation as Subterfuge