Reconciliation means Municipalization

29 Friday Sep 2023

Tags

aboriginal rights, aboriginal title, Federal Liberals Comprehensive Claims Policy, Indigenous Peoples, Land claims, Reconciliation

Part 5 of this week’s blog, No More “Reconciliation Sticks”

In the 1970s, at least one informant in the Canadian government was relaying the state’s plans to Indigenous political leaders.

The obvious question is, why did the Governors Attorney and General, the Superintendents, judges and Ministers have secret plans?

In one easily cracked nutshell, the Canadian state was already wildly liable for attacking the British Crown’s “Allies; the Tribes and Indian nations with whom We are Connected” – and fur trading partners – in their own protected territories, so peace and good faith would be hard to recover. And because, in the case of the Colony of British Columbia, the British wouldn’t give them any money for Treaties. So the politicians and judges could not very well speak out about what they had in mind – at least not plainly.

The many-headed word “reconciliation” aids them there.

In Canada, it has taken three centuries of brutal tactics, and the martial law of Indian Act Band Councils, and the colony has still not convinced the nations to become consenting colonial districts.

Today, Canada is more desperate than ever to manufacture this consent.

Using the “concept of reconciliation,” among many coercive tactics, a replacement Indian Act targets Indigenous communities under duress.

Attempting to transform constitutionally and internationally protected peoples, owners of rich and substantial land bases, into virtually landless provincial municipalities, Canada has passed into law an entire framework to replace the Indian Act. You may remember the First Nations Governance Act, revised; the First Nations Fiscal Accountability Act; the First Nations Land Management Act, et al, as the omnibus Bill C-45, 2012, which sparked the Idle No More protests.

The crucial difference with this municipalization plan, is that the present day First Nations’ entry into confederation would be achieved by consent. Consent to the state and recognition of “crown interests” are achieved incrementally in delegated jurisdiction agreements concerning education, child welfare, housing, health, and such; as well as in negotiation of land claims under the 1974(78) Comprehensive Claims Policy and the 1995 Inherent Rights Policy (the leading extinguishment programmes in Canada today),

There, reconstituted under Canadian law – having ratified an individual First Nation constitution; having released and indemnified the colonizers; having accepted cash as the full and final settlement of Aboriginal rights – the First Nations will be outnumbered in provincial unions of municipalities. There, First Nations will be dependent on five-year provincial funding agreements and occasional aid for natural disasters, and will not retain their autonomy, or sovereignty, or even those controversial Aboriginal rights.

Today’s article looks at the mechanism of the “concept of reconciliation” at play in the municipalization of Indigenous communities. Municipalization is the only future, under Canada’s runaway judges, consistent with their regularized practice of complete abrogation and derogation from “Aboriginal and treaty rights.” It is the only possibility that conforms to the reconciliation program, as described by the Supreme Court of Canada.

It will not be achieved by any means consistent with the UN Declaration on the Rights of Indigenous Peoples.

But hey, if First Nations want to make Final Agreements that extinguish their rights, who’s to stop them.

From unilateral legislation to coercion

So, in the 1970s, Walter Rudnicki was working for the federal government. He shared confidential information with the leaders of the Union of BC Indian Chiefs. He confirmed the intention of Canada to finally coerce the assimilation of every Indian Band as a provincial municipality, and thereby liberate itself from the burden of acquiring title. A consensual union would also indemnify the state of past harms.

Here’s the setting.

The legendary 1969 White Paper, the Statement of the Government of Canada on Indian Policy, had just failed spectacularly up: forging extensive political allegiances from coast to coast to coast. It had been a play to unilaterally assimilate the nations by legislation, demolishing the Indian Act and every line of constitutional ink that described the burden of legally acquiring title to the Indian territories.

The Nishga case, Calder v. The Attorney General of British Columbia, got a 1973 admission from the Supreme Court of Canada that Aboriginal title continues to exist in Canada, unextinguished.

Trudeau the First and his Minister of Indian Affairs, Jean Chretien, passed the federal Comprehensive Claims Policy within the year. Any Indigenous nation could apply within the process it enabled, and they could get small cash and smaller land deeds as a final settlement of their title, rights, and interests in the surrendered area.

The Comprehensive Claims Policy, 1978 update, is the leading negotiating policy today.

Indigenous leaders did not particularly need an inside informant to confirm the meaning and intent of that. But it may have been helpful, in some cases, to have a little advance warning of the next strategy being formulated.

It was helpful in 1981, in the case of Trudeau’s next best plan, the attempt to get a new Constitution from Britain: one which did not include any obligations to the now occupied nations.

It was helpful in 2009, when British Columbia had tried to simply legislate the Bands under provincial jurisdiction.

Someone gave the Union of BC Indian Chiefs a copy of the September, 2004 “Secret Framework for Renewing Canada’s Policies with Respect to Aboriginal and Treaty Rights.” Emphasis in the original.

The draft Framework begins by reminding us that the Speech from the Throne, April 2004, stressed finding more efficient ways of concluding self-government agreements. (Self-government means municipalization under Canadian law and abandonment of original Indigenous titles and jurisdictions, at least the way Canada uses the term.)

It mentions the “sectoral follow-up table on expediting land claims,” which are “a key component for transforming relationships.” (That is, until First Nations abandon original claims and accept delegated Canadian authorities in Final Agreements, they won’t get any.)

It says,

“The Speech from the Throne and the establishment of the sectoral table on land claims and self-government reflects the reality that establishing cooperative relationships with Aboriginal peoples on quality of life issues must be underpinned by effective policies and processes for addressing Aboriginal and treaty rights.” (That is, there won’t be any improvement in on-Reserve quality of life until extinguishment agreements are signed – as above.)

The Aboriginal participants at the same sectoral follow-up voiced the exact opposite set of priorities:

“Aboriginal groups emphasized that joint work on quality of life issues must be situated in the broader transformative agenda based on recognition and respect for Aboriginal and treaty rights.”

The secret draft writers resolved that stitch by reminding the secret reader,

“The Supreme Court of Canada has stated that the basic purpose of section 35 of the Constitution Act, 1982, is the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the crown. Reconciliation has become the key organizing principle which the courts have used in addressing issues related to Aboriginal and treaty rights.” (That is, the court has taken the political lead and reduced legal rights to issues, so the government’s job is just to follow suit.)

Note: We looked at that in Part 2 – Theft by Chief Justice, where the term “reconciliation” was coined.

The 2009 British Columbia “Recognition and Reconciliation Legislation” was crafted under Premier Gordon Campbell and his cabinet of hungry skeletons, particularly Mike deJong, Wally Oppal, and former QC Geoff “they never had any title and if they did it was extinguished by the presence of the crown” Plant.

This legislative flop was certainly influenced by the 2004 secret plan – if nothing else, it must have been lent audacity. The province’s 2009 Re&Re Legislation even came with sign-off from the First Nations Leadership Council (FNLC)[i] and their lawyers from Mandell Pinder.

Only thing was, the FNLC hadn’t mentioned anything about the legislation to its members, or their respective peoples and constituents, when the right honourable Mike deJong announced to media the “seismic shift” that was about to occur in BC.

And consent is sacrosanct. The bluff was called, retracted, and turned to ash – like the White Paper Policy 1969.

The government’s only working plan now is coercion.

Instead of consent, all these years, there’s only forcible imposition

Canada has forcibly imposed the Indian Reserve and Indian Band structures – on non-treaty and treaty nations alike.

British Columbia plays a huge part in the necessity that mothered that invention.

The province of BC was written into existence in 1858, unbeknownst to any Indigenous leaders west of the Rockies, by the Queen of the British Empire – precisely one-half the circumference of the globe away. Then she forgot about it, and nobody in England wanted to pay for treaties there.

There is no need for me to re-write what happened once the Indigenous protest reached a critical level. This is from Bruce Clark’s “The Error in the Tsilhqot’in Case,” 2018:

“In 1874 British Columbia enacted a Crown Lands Act that regarded all crown land as if it were public land available for disposition, even though the land is part of the continental reserve for the Nations or Tribes of Indians, not being “ceded to, or purchased by Us.” In a report to the Canadian Privy Council, Attorney General Télésphore Fournier recommended disallowance under section 90 of the Constitution Act, 1867, on the ground of conflict with the proclamation and section 109. The report was approved in a Minute in Council dated 23rd January 1875 and endorsed by the Governor General.”

“British Columbia then made a proposal to Canada to resolve the Indian problem by establishing a commission to investigate and “set apart” provincial Crown lands as “reserves” for Indian use. This led directly to the Indian Act, 1876. The Acting Minster of Interior Affairs in a report dated 5th November 1875 recommended approval of the provincial plan, which was done by the Canadian Privy Council pursuant to Minute in Council dated 10th November 1875. This entailed leaving the originally disallowed Crown Lands Act to its operation, i.e., reviving it. Attorney General Fournier was elevated to the Supreme Court and was replaced in office by Attorney General Edward Blake. Blake reported under letter dated 6th May 1876 to the Governor General explaining that “Great inconvenience and confusion might result from its disallowance.” As recommended, on second thought, the Governor General did leave the statute to its operation. Treaties were not made thereafter in mainland British Columbia. There was no need, since all Crown land was thereafter unconstitutionally regarded as public land available for disposition. It was as if the Royal Proclamation of 1763 and the “subject to” proviso in section 109, BNA Act, duly had been repealed or had never existed.”

When Canada passed the Indian Act, everything an Indigenous nation would need to do to survive was criminalized. In the legislation, Indians were defined negatively as “a person is anyone other than an Indian.”

If Indigenous Nations didn’t consent to be governed by the Indian Act, why go along with it?

Because someone had to take those roles in the leadership and administration of the office; in the Band Council.

No, they really had to.

You can’t have an economy based on the resources in a few acres of Indian Reserve, and you’re not allowed to sell anything anyway. Not even vegetables or produce, when it makes competition for settlers at their markets.

In 1935 the Indian Act was amended to reflect that there must be one (1) Chief Counselor per Band, and that he should be elected by popular vote, in the prescribed fashion. This did not resemble any Indigenous structures.

But without that, the Band can not receive the relief funds provided by the government which took their land. That relief program started approximately at the time the plains peoples were starving because the settlers wiped out the buffalo… to make sure they would starve.

In BC, it started in 1927, after DC Scott and his colleagues in the Judicial Committee, in Ottawa, dismissed the Claims of the Allied Indian Tribes, formally. The relief was the “BC Special” – $100,000 per year, “In lieu of treaties.”

There were more than 200 Bands at that time. The <$500 per Indian Band per year, a pittance – and most of it paid to the Minister of the Interior to administrate the fund, hasn’t quite kept up with inflation here in 2023.

This is what makes things like “economic reconciliation” sound attractive to First Nations. This is how “the reconciliation of aboriginal societies with the sovereignty of the crown” is achieved: under duress.

Pitawanakwat, 2000

In an Oregon County court, Justice Stewart compared OJ Pitawanakwat’s situation in Canada with members of the Irish Republican Army in Ireland. She found it was manifestly the same. Just as Spain refused, in the 1990s, to extradite IRA members to Britain, Justice Stewart refused Canada’s extradition request.

Pitawanakwat was present at the Gustafsen Lake police siege, 1995, and had subsequently been charged, detained, and released on bail after two years. He fled to the USA.

Now, because of the facts that “his conviction was of a political character,” and in a “politically charged climate,” were recognized by an American judge, he lives there still, unable to return home to Anishinabek territory.

At Gustafsen Lake, they said no to the Indian Act; they said no to municipalization; and they said no to extinguishment in full and final settlements. The Attorney General declared war on them.

“We’re not going to agree to anything that will affect our economy.”

Thus spake the province’s negotiator at the St’át’imc Chiefs Council protocol table, in 2008. He might as well have been speaking on behalf of the Canadian state.

The “reconciliation” proposed by Canada would be achieved, if ever, because it is the only prescription for change that Canada will agree to. And that change is: Indigenous nations must submit to their bisection and reduction to scattered postage-stamp communities, where less than a quarter of their own Band membership has room (or housing) to live. They also must relinquish all claims against the province, the state, and “anyone else” for past harm. They must reconstitute themselves, starting with a new Constitution for each First Nation, and enter the hallowed halls of the Union of BC Municipalities.

The conditions under which that kind of “consent” would be achieved, would not hold up under international scrutiny.

It would be achieved under a colonially imposed, extra-legal regime, rather than by authentic governance procedures. It would be achieved by denying Indigenous titles, and capitalizing on the financial ruin which has resulted from this. It would be achieved by refusing to recognize authentic and legitimate holders of the rights to political decisions, who can be marginalized by the imposed ratification procedures.

But, to the great credit of humanity – which will go down in history forever – Indigenous Peoples may be cash poor, but they’ll surely survive these lean, mean years and live their own way.

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

[i] Executives of the First Nations Summit (BC Treaty Process); Assembly of First Nations (BC region); and Union of BC Indian Chiefs.

Enforcement of Reconciliation

28 Thursday Sep 2023

Posted by Admin in Reconciliation

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Tags

aboriginal rights, aboriginal title, Canada, Indigenous Peoples, Land claims, United Nations

Part 4 of this week’s blog: No More “Reconciliation Sticks”

Now that we have reconciled ourselves to the reality, as described in the last three parts of this blog, of bottom-line, extinguishment-policy reconciliation, all those orange T-shirts look different. You can bet they mean something different to the wearer, depending on whether they are Indigenous or not.

Still, maybe we go to Capital “R” Reconciliation events at the city venue, to show up for the spirit of it. When our hearing is not muddied by the emotional speeches, we hear the MP say, “we can continue to witness, to learn, and do everything we can to address the past.” That’s his closing line: no particulars, and definitely nothing about addressing the present.

The School District rep cries and says, “we’re learning how to teach children.” She says there are “powerful examples of how our communities have not done things in a good way,” but doesn’t describe any of them.

The City Councillor says, referring to one of the distinguished visiting Chiefs, “Hey there’s Jimmy. It always makes me happy to see Jimmy visiting us.”

The awkwardness of these emotional people making hollow statements is easily explained by the superficial nature of the assignation. There is confusion around what is expected from a government official who is well aware that his tax revenue comes from the unceded, non-treaty Indigenous lands his city is occupying, and if any native whomever tries to exercise his rights there he will be snapped up and incarcerated as per reconciliation rules (business as usual), but he is supposed to say something that sounds like he cares.

Canada has produced exalted and venerated leaders in obscuring this problem, ensuring that the “reconciliation” of Aboriginal titles, and societies, will be enforced and will usher in the time of “no more Indian question,” with a big smile and a small cheque and some native motif pinned to their suit jacket. But most politicians are not so smooth, so it’s bizarre to watch.

Right next to the “reconciliation” event is the business-as-usual land developer scraping away the river foreshore to build condos, and police patrolling to protect the desecration of the traditional, local, unsurrendered supemarket, pharmacy, and fishery access point.

Because “reconciliation” doesn’t actually mean anything other than what the courts and the legislators and extractive industries and police actually do.

They reinforce the supremacy of the colonial economy – socially, militarily, legally; every way – and chastise land defenders, traditionalists, cultural people, to reconcile themselves to it.

Acceptance, resignation, and reconciliation is required of Indigenous Peoples.

The Truth and Reconciliation Commission’s role in enforcement

The TRC issued its report in 2015. They may have accomplished a few things that Canada wanted “out of the way” before it ratified the UNDRIP.

Without getting personal about the Commissioners – they were just people selected on the likelihood of doing what they were told – the Report of the TRC is a blinding misrepresentation of the situation in Canada. Surely work was done, meetings were held, and people benefitted by their involvement in the course of Commission events; but other work was done as well.

Let’s nip back along a shady trail. In 2007, Canada voted against the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) during the General Assembly’s ratification process. It was one of only four member states to do so, out of a total 192 states. It is reliably rumoured that Canada threatened several African countries with cessation of aid funding if they voted in favour of the DRIP.

Loudly explaining themselves to anyone who would listen, Canada spoke (and issued all manner of written statements) about how Aboriginal rights in Canada are already constitutionalized and superior to the UNDRIP articles.

Slight further digression: Canada pays various reputable Indigenous individuals to tour the world: Pakistan, Mexico, Australia, several west African countries, among many others, to promote the Band Council system; the Tribal Council system; and also to tell outright lies. “The Assembly of First Nations has a place in Parliament and they are part of the Canadian government,” I heard from an Indigenous South African delegate at the UN Permanent Forum on Indigenous Issues. He had been told as much by an Indigenous presenter from Canada.

So when Canada later ratified the DRIP in 2016, they took the chance to make a grand appearance at the UN Permanent Forum on Indigenous Issues in New York City, with Ministers Carolyn Bennett and Jody Wilson Raybould meeting and greeting. It was odd, then, that when Minister Wilson Raybould returned to Ottawa, she soon was despatched to address the Assembly of First Nations and tell them that implementing the UNDRIP was “not practicable.”

Five years later, we got the Canadianized legislation of the UNDRIP.

Canada was slow, and incomplete with importing the 1948 Geneva Convention, too. When they incorporated a few articles of that Convention on the Prevention and Punishment of the Crime of Genocide into the Criminal Code, in the 1960s, the “forcible removal of children from the group to another group” was not written as such.

The “reconciliation of aboriginal rights with the broader society” has been under way long before Chief Justice Antonio Lamer came up with this new and improved, and ambiguous, term. Canadians will handle human rights their own way, and they might need to adjust the dictionary.

See here, one of the very first things out of Senator Murray Sinclair’s mouth, when he delivered the opening statement of the Truth and Reconciliation Commission’s report, was that Canada has committed “cultural genocide.” But that doesn’t exist.

The Report, in its opening paragraphs, erases and redefines one of the only legal tools we Canadians have to grapple with what was not “cultural genocide” – whatever that is, it doesn’t have an accepted definition in international legal instruments – but “genocide,” according to the five definitions of the crime identified in the 1948 Geneva Convention.

Any one of these actions is genocide:

“Forcible removal of children from the group to another group.”

“Deliberately imposing conditions calculated to bring about the destruction of the group.”

“Killing members of the group.”

“Inflicting serious physical or mental harm on members of the group.”

“Forcible sterilization of members of the group.”

According to the TRC, when they describe these intentional actions, this is “cultural genocide” – which is not justiciable, because there is no Convention for the Prevention of Cultural Genocide, and anyway all of the crimes listed above are documented by the TRC in their report and justiciable under the Genocide Convention.

Why did the Commission do this? They were enforcing reconciliation.

Reconciliation means resigning; it means making compatible; and a finding of genocide really does not fit this “superior to the DRIP,” advanced Canadian culture. The Commission had to enforce “the concept of reconciliation,” as well as the underlying, extra-legal policy of extinguishment. They did a remarkable job, using the word “reconciliation” fluidly between both meanings and even managing to leave the term undefined.

The Anglican Church letter incorporated in the TRC Report straight-out asked them, “What is reconciliation”? It was not a rhetorical or philosophical question.

Why “must” Indigenous people commit to “mutual respect and recognition”?

This was, for all intents and purposes, ordered by the Truth and Reconciliation Commission. But the TRC was not also offering a path to justice. They just wrote in their report that, in order for reconciliation to work, Aboriginal individuals and groups “must” give respect and recognition to the colonizer.

The Supreme Court of Canada’s Chief Justice, Beverly McLachlin, confirmed the current usage of “reconciliation” in Tsilhqot’in Nation, 2014:

“[83] What interests are potentially capable of justifying an incursion on Aboriginal title? In Delgamuukw, this Court, per Lamer C.J., offered this:

“In the wake of Gladstone, the range of legislative objectives that can justify the infringement of aboriginal title is fairly broad. Most of these objectives can be traced to the reconciliation of the prior occupation of North America by aboriginal peoples with the assertion of Crown sovereignty, which entails the recognition that “distinctive aboriginal societies exist within, and are a part of, a broader social, political and economic community” (at para. 73). In my opinion, the development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building of infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title. Whether a particular measure or government act can be explained by reference to one of those objectives, however, is ultimately a question of fact that will have to be examined on a case-by-case basis. [Emphasis added; emphasis in original deleted; para 165]”

These justifiable infringements of reconciliation are enforced all the time, at Fairy Creek, Sun Peaks, Burnt Church, and Gitdimt’en.

No Canadian Commission has ever questioned the issue of the Canadian courts’ assumption of entitlement to all legal questions in Canada, and its bias: in favour of Canada; and the resulting lack of access to a fair trial for any Indigenous person who would want to rely on their own laws.

The police who broke up the pipeline-barricade camp at Gidimt’en in 2019 had a clear understanding of their role in reconciliation.

I wasn’t there in Wet’suwet’en territory, but I heard. The Emergency Response Team officers referred to their guns as “reconciliation sticks,” as they proceeded into the unsurrendered, sovereign Wet’suwet’en lands to enforce the Canadian occupation.

Perhaps they are more fluent in colonial law than the average Canadian who is distracted by the TRC’s promise of hearing fabulous Indigenous mythologies, traditions, and histories in youth arts and crafts sessions, or digitization projects, or new landmark signage. Those activities make up the majority of the “94 Calls to Action” articulated by Canada’s Truth and Reconciliation Commission (TRC).

Because the crown (look at any piece of Canadian money) refuses to respect Indigenous law and land, and Indigenous Peoples still aren’t going to give it all up, those mutually exclusive refusals have to be reconciled: if, suspiciously, almost always in favour of the “broader society,” and their several justifiable infringements – immigration, logging, mining, development, etc. According to the Canadian courts. No one has reported much on the thoughts of capable and juridically solvent Indigenous courts.

“Reconciliation” is not the tool of the colonized. “Reconciliation” needs to be enforced.

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

Check in tomorrow for Part 5 – Reconciliation is Municipalization

and an Indigenous nationalist who fled persecution in Canada, to the USA, and were protected by an American court under the “political prisoners” exception to the extradition treaty.

Reconciliation as Subtergfuge

27 Wednesday Sep 2023

Posted by Admin in Commentary, editorial, Reconciliation

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Tags

aboriginal title, Comprehensive Claims Policy, extinguishment policy, Reconciliation, TRC, Truth and Reconciliation

Part 3 of this week’s blog, No More “Reconciliation Sticks”

The term “reconciliation” has morphed from the 1996 Van der Peet ruling into government “Statements on reconciliation,” into the 2009 formation of the Truth and Reconciliation Commission (TRC), into the judicial results of aboriginal title cases.

What has not morphed is the Canadian government’s policies.

Does the PR campaign match the policy?

“The concept of reconciliation,” as the federal government more cleverly put it in their secret policy, four years before the TRC would be mandated by the Indian Residential Schools Settlement Agreement, might butter more toast than the reality of the government’s Comprehensive Claims Policy (CCP).

The secret policy writers noted that the concept of reconciliation would secure investment, because it sounds good, without adding any liabilities by talking about it, because they don’t mean anything good by it: just making Aboriginal societies conform and resign to colonial control.

Government policy on “land claims,” the bottle neck corridor through which any and all state recognition of Indigenous land ownership is achieved, is book-ended by discretionary suspension of Indian Act relief funds in the case of non-compliance, or roadblocking, or refusal of an Indian Band (First Nation) to negotiate its way into becoming a provincial municipality and releasing the government from liability for past harm.

“Reconciliation” has not shifted this policy.

Reconciliation in the decisions of aboriginal title cases

In 2017, the 20^th anniversary of the Supreme Court of Canada’s Delgamuukw decision (1997) was marked by heavy equipment building pipeline access roads over the unsurrendered, unceded properties of Wet’suwet’en Chiefs whose title to the land was fully evidenced at trial. Any Canadian can read the transcripts and see the maps.

Briefly, the head chiefs Delgamuukw (Gitxsan) and Gisdayway (Wet’suwet’en) were suing for a declaration of title and jurisdiction on behalf of their nations, with small exception. The Supreme Court of BC and CJ Allen MacEachern dispatched the Gitxsan and Wet’suwet’en claim in 1991 with some of the most racist language ever heard in a court room.

In Delgamuukw v. British Columbia at trial in BC in 1990 and 91, British Columbia had counterclaimed for a declaration that the appellants have no right or interest in and to the territory or alternatively, that the appellants’ cause of action ought to be for compensation from the Government of Canada. MacEachern agreed with them, on the whole. The province’s lawyers were, after all, from his old law firm of Russell and DuMoulin. MacEachern pointed out the impossibility of wandering “vagrants” such as the plaintiffs to have title to land. And if they ever did, he reasoned, it was displaced by the presence of the crown.

At the Supreme Court of Canada, Chief Justice Antonio Lamer didn’t declare any title either. He found a lot of errors in MacEachern’s reasons and in the province’s arguments, ultimately confirming the clear appearance of Gitxsan and Wet’suwet’en title; ordered a retrial; and took the chance to tell them:

“Ultimately, it is through negotiated settlements, with good faith and give and take on all sides, reinforced by the judgments of this Court, that we will achieve what I stated in Van der Peet, supra, at para. 31, to be a basic purpose of s. 35(1) — “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”. Let us face it, we are all here to stay.”

It’s effectively the same as the Truth and Reconciliation Commission reporting that Indigenous Peoples “must” come to “mutual respect and recognition” with the colonizer. Presumably, complete forgiveness on the part of the Indigenous goes along with that.

Neither “reconciliation” nor court rulings have altered the bottom line in Canadian policy and practice.

Antonio Lamer’s successor as Chief Justice of the Supreme Court of Canada is CJ Beverly McLachlin. She has picked up the torch of reconciliation with total enthusiasm, letting the truth of reconciliation’s subversive powers burn brightly.

In Tsilhqot’in Nation, 2014, she reasoned:

“The Court in Delgamuukw confirmed that infringements of Aboriginal title can be justified under s. 35 of the Constitution Act, 1982 pursuant to the Sparrow test and described this as a “necessary part of the reconciliation of [A]boriginal societies with the broader political community of which they are part” (at para. 161), quoting R. v. Gladstone, [1996] 2 S.C.R. 723, at para. 73.” [16]

Just to rephrase: infringement of Aboriginal title is a necessary part of reconciliation. Incidentally, so is impairment of Aboriginal title and rights; and, apparently, the extinguishment of Aboriginal title and rights by negotiation under the Comprehensive Claims Policy.

She further clarified:

“As Delgamuukw explains, the process of reconciling Aboriginal interests with the broader interests of society as a whole is the raison d’être of the principle of justification.” [82]

(Note: The Supreme Court of Canada devised the “justification test” in 1990, when it ruled on the Sparrow fishing case. The category keeps growing, but Aboriginal rights and titles can justifiably be infringed that Canada and the provinces want rally badly: logging, mining, the settlement of foreign populations to do those things; development; ski resorts; hydro-electric facilities; roads; etc.)

The result of Tsilhqot’in Nation was a declaration of Aboriginal title to part of the Tsilhqot’in traditional territory. It is the first and only land with such a designation, arriving 40 years since the first admission of Aboriginal title in the Canadian common law, in 1973 with Calder.

Ten years later, jurisdiction on the ground remains rather fully snarled in bureaucratic reluctance. Justifiable infringements carry on like business as usual.

This is the policy that “reconciliation” is all about.

Subterfuge is consistent with the historical record

Even in a brief survey of examples which come to mind right away, the legacy of deceit – from bad faith to fraud – make it hard to believe the idea that Canadians are going to do the right thing this time. It makes no sense to ignore the past. Indigenous Peoples aren’t going to.

To make a clean sweep that encompasses the beginning and the present, we should start with the fact that the British crown honoured none of its promises. It has never held Canada accountable to the Executive Orders it delivered by the monarchs and the Privy Councils, and, from the Canadian side, the Governors and Attorneys General have only ever stonewalled Indigenous attempts to access “British justice.”

It’s a pattern repeated around the globe, where British forces route whole villages, coastlines and interiors; supplant Chieftains with Magistrates propped up by force and coercion; populate the place with re-purposed chattel shipped out from Scotland, Ireland, prisons or orphanages; funnel resources out of the newly colonized and re-populated country; and later some Governor or judge scratches his head, for the record, and notes that the law as it was written appears to have been mislaid.

Canada is no exception.

In 2007 the First Nations Unity Protocol Agreement saw the alignment of every Band involved in the BC treaty process (except one) stage massive protests: the government’s negotiating mandate was not consistent with the basis of the BC Treaty Commission, the 19 Recommendations made by the BC Task Force that formed it in 1991. Furthermore, the Delgamuukw decision, SCC 1997, elevated judicial recognition of Aboriginal title well beyond British Columbia’s working definitions, but this did not change the negotiating mandate.

The negotiating mandate follows the Comprehensive Claims Policy, 1974, updated in 1978. The province knew that was its mandate when it entered negotiations, loaning hundreds of millions to First Nations and putting them within the purview of third-party remedial management, based on their Indian Act financial responsibilities.

Now, in these times of Reconciliation, that negotiating mandate has not changed. The only possible result of a land claims negotiation between First Nations and the state is that the unsurrendered Indigenous land in question will be relinquished for a financial settlement, sometimes including fee-simple packages of land which are now the property of the province. This is extinguishment of Aboriginal title.

For three decades, UN Committees for implementation of international treaties on Racial Discrimination, Civil and Political Rights, Social and Economic Rights, and more, have made long lists of unresolved violations. Extinguishment, recently re-named as “certainty,” is one of those violations. They have little to show in response to their recommendations to Canada.

The Inter American Court of Human Rights has admitted two national Indigenous-led cases against British Columbia and Canada that there is no “domestic remedy” to the Indigenous dispute with Canada. Among many other reasons, that’s because Canadian courts aren’t an impartial tribunal. One case was brought by the Hulquminem Treaty Group when it reached the above mentioned impasses in the BC treaty process. The international court’s findings have also not affected the government’s negotiating mandate.

The Tsawwassen Final Agreement was ratified later that year, about 1% of the claimed land area, a cash settlement, and offering a $15,000 payment for every yes vote. The Minister of Aboriginal Affairs and Northern Development Canada, Chuck Strahl, said “who am I to say it’s a bad deal?”

After the 2007 BC Supreme Court decision in R. v. William, the Tsilhqotin Nation case, communities across British Columbia lit up June 21 with roadblocks, information check-points on major highways, and various demonstrations. It really was meant to be the longest day of the year for Canadians.

As of 2010, Canada announced “Aboriginal Day” on June 19^th. Grants and organizations piled up in displays of culture and dancing in parks, and the year that Vancouver hosted the Winter Games was cleared of protest ahead of advance delegations of international journalists preparing to cover the Olympics. Coincidence?

Can everyone remember as far back as 2012 and Prime Minister Harper’s Bill C-45? It gutted funding to Aboriginal organizations. Tribal Councils and Friendship Centers lost 75% of their income overnight. That was four years after he apologized for the Canadian government’s role in Indian residential Schools.

(Note: the funding cuts weren’t related to any corresponding reduction in diamond mining, fracking, logging, fishing, industrial agriculture, or other reduction in exploitation of unceded lands.)

But the intention of the Indian Residential Schools was exactly the same as the intention of the Bill C-45 budget cuts, and the omnibus bill’s corresponding legislative architecture to municipalize First Nations. (Check back for Part 5: Reconciliation as Municipalization)

Canada’s prima facie goal is assimilation of the Indigenous nations and polities into “the body politic of Canada. Then there will be no Indian Department and no Indian question.” The Superintendent of the Interior, as he was then, Duncan Campbell Scott, was clear and unapologetic about the goal in 1920.

The only discernible difference today is the performance of apologetic behaviour by leading Canadian politicians like Prime Minister Justin Trudeau. But the same goal is clearly defined by the only possible result of the only negotiations, and the only political or judicial recognition, that Canada will engage or afford Indigenous Nations: assimilation into the body politic of Canada.

Which brings us to the Truth and Reconciliation Commission.

Whose truth? And whose reconciliation?

The TRC wasn’t really looking for the Canadian government’s truth. It interviewed survivors of Indian Residential Schools; it held events for the former students and their families; it catalogued testimonials. It did not collect stories from the surviving perpetrators of the crimes, and the architects and financiers of the institutions. It did not search archived government memos concerning the receipt of visiting doctors’ reports that children were starving, being abused, and dying.

Wouldn’t it be helpful to know – and collect statements – whether the government of Canada knew that the schools were turning into graveyards? If the government officials in charge of those schools deliberately recruited disgraced “teachers” from the notorious Irish industrial schools run by the Christian Brothers? If there is a record of that political decision to ignore what was happening, because it was furthering the stated objective of “killing the Indian in the child”?

Keep in mind that was the mandate of the “schools.”

At some point the question has to be answered: is it really possible for the perpetrator of the crime to sit in judgment of it and prescribe the actions of atonement?

If the TRC’s report and recommendations can possibly be taken seriously, they would have to be matched equally by a Commission of the Indigenous Nations’ own making. They would have to be qualified and heavily amended to include the recommendations of the Indigenous Peoples. And Indigenous parties would have to have the power to ensure those recommendations would be met.

Alternatively, why not have an Indigenous-mandated Commission, and that party to the dispute can run the reconciliation program? Does that sound absurd? More absurd than having a Commission that’s mandated and run by Canada – one of the named perpetrators of the crimes under investigation?

But the TRC did not contemplate any crime other than what happened at Indian Residential Schools. And yet, the “reconciliation” that fills the media and the municipal, provincial, and federal government statements are made to refer to all matters of imbalance and grievance between Indigenous Peoples and the state.

Many former students and their family members attended the ceremonial report of the TRC. Many were raptly attentive to the Pope’s apology. And many of them were not able to accept the conditional, highly qualified TRC report; many found they were not able to accept the Pope’s brief apology and extended remarks on the Christian faith.

Why is that? That’s because Canada still has all the land and all the money from the resources and all the power to enforce all the decisions they make about how to exploit the land. The churches haven’t given back any land that was gifted to them, either by hopeful indigenous leaders or by the government, and the churches are not going to bat for indigenous Peoples on the broader issues.

It’s because Canada still has control of the governance structures that Indigenous nations are forced to crouch under; it has control of the fate of the little children and their families who struggle “on a weekly, daily, and hourly basis”[i] to make ends meet. It has everything – except the consent of the Indigenous Peoples.

It is a very ungainly suggestion that the TRC makes when it reports that Indigenous Peoples “must” engage “mutual respect and recognition” in order for reconciliation to work.

The TRC itself was expressly forbidden, by mandate, to engage in “fault finding” as it heard evidence of gross, mass crimes. The mandate forbade Commissioners to subpoena witnesses, to form criminal charges, and even to record the names of perpetrators proven out in testimonies.

Come a little further away from the mass media noise, and consider. Investigation of the school graveyards was Call to Action numbers 75 and 76. A Commission with no mandate to “find fault” has made itself the authority on proceedings to uncover the victims of first and second degree murder.

Is it likely that “reconciliation” proceed while “justice” is denied?

The biggest hoax since the Trojan Horse

But we have to stop talking about reconciliation as if it means anything other than what the judges said it does: making Indigenous Peoples conform to the Canadian way of doing things, at least to the point where there’s no competition or conflict for the Canadians.

This is also the “reconciliation” of the TRC, and the apologies. It’s procedural; it’s “getting over it;” it’s saying “sorry” to make the injured party say, “it’s okay,” and justifying business as usual, as if it has been consented to in the receipt of the apology.

The “reconciliation” of Prime Minister Justin Trudeau’s tear-stained camera opps – the imaginary world where Canadians are moved by understanding the harm they have caused, and actually change everything – is a Public Relations campaign. Not only in Canada but all over the world.

The policy is the policy, and it has nothing to do with contrition. Nothing to do with balancing the scales; nothing about Indigenous self-determination, jurisdiction, and title; nothing like reparations or cooperating with an independent tribunal. Nothing about exposing a Supreme Court that is prima facie guilty of judicial inactivity in the presence of genocide, and clearly abetting it.

The Public Relations “reconciliation” bears no resemblance to the policy. The policy constructs a funnel of release and indemnification of “the provinces, Canada, and anyone else” for any and all past harms. It requires that “this is the final settlement of Aboriginal claims.”

Thank you very much for reading. Today’s post has been interrupted by a computer crash, so it may be improved a little once that’s resolved!

Takem i nsnukw’nukw’a.

Check back for Part 4 – Enforcement of Reconciliation, tomorrow; and Part 5 – Reconciliation means Municipalization, Friday.

[i] The Reconciliation Manifesto, Arthur Manuel, 2017.

The “Inalienable Aboriginal Title” and the “Crown’s Fiduciary Duty”

07 Monday Aug 2023

Posted by Admin in aboriginal title, Commentary, editorial

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aboriginal rights, aboriginal title, doctrine of discovery, Indigenous Peoples, Johnson v. McIntosh, Land claims, Marshall, Sovereignty

Reflecting on two centuries since Johnson & Graham’s Lessee v. McIntosh, 1823

When Europeans found out about North America, they fought each other – and made treaties with each other – for the right to exclusive trading and treaty making there.

African emissaries didn’t do that. They merged and mixed, and made something of themselves among the Original Inhabitants, apparently, when you look at the gift of an ancient stone head which the Government of Mexico made to UN headquarters in New York City, early this century. The several-ton sculpture was distinctly an African head, made in Mexico, and older than Columbus by centuries. Mexico chose its moment well, at the time of ratification of the Declaration on the Rights of Indigenous Peoples.

But in 1823, the exact meaning of French, Spanish, and British dealings on the Atlantic coast of this continent were the subject of an elaborate judicial review by US Chief Justice John Marshall. The case at trial was a question of whether inheritors and tenants of land bought from the Illinois and Piankeshaw could keep their arrangement after the nations’ leadership made a treaty with the USA.

The appeal, or writ of error, was put to the Supreme Court primarily because the question of the foundations of land title in “British” North America required clarification generally.

In order to decide whether Johnson’s party (the plaintiff) had a claim against McIntosh (the defendant) for the right of possession, Marshall had to review all the facts. That is, what happens when an immigrant individual buys land from an independent American nation, and that nation subsequently sells their title, by way of treaty, to the new colonial US government? That is:

“The plaintiffs in this cause claim the land in their declaration mentioned under two grants purporting to be made, the first in 1773 and the last in 1775, by the chiefs of certain Indian tribes constituting the Illinois and the Piankeshaw nations, and the question is whether this title can be recognized in the courts of the United States?

“The facts, … show the authority of the chiefs who executed this conveyance …were in rightful possession of the land they sold. The inquiry, therefore, is in a great measure confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the courts of this country.”

To track the foundation of land title in North America, distinct from in Europe, through both constitutional and common law, he noted the inter-European treaties:

“But as they [Europeans] were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession.”

“The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, …. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.”

To skip to the end of McIntosh, Marshall found that the USA could not credit, inherit, or guarantee, a previous land deal made by another nation. As he said earlier, the chiefs who executed the conveyance were in rightful possession of the land they sold. It was the USA who could not recognize their sale to anyone but “the sovereign claiming discovery.”

The USA was bound by the European treaties to only recognize an Indian surrender or sale of their title to the sovereign power which had made “discovery.” Thus the Plaintiff’s title derived by grant from the Indians could not be recognized by Marshall’s court. Mr. Johnson was not a sovereign power. He was, however, a Supreme Court Justice of the state: he should have known better.

And that is “the inalienable title” in Canada today: the crown had staked its right, against any other, to acquire title to the soil. The crown offered to the prospective sellers its protection in exchange. And that is the “fiduciary duty” – the crown would be nothing more than a hostage taker; a brute captor and slave driver (which it also was until 1807); unless it acted honourably towards the peoples it had just isolated from the free market by force of might. The duty is one of care; trust; and fair and equitable dealing.

Having acquired the exclusive right to buy the land, honour would not permit the discovering sovereign to deal sharply, to coerce a sale, nor to deny the Original Inhabitants their right to occupation and possession until a sale was made.

Aboriginal title – in spite of Marshall, or as aided by the Chief Justice?

Marshall’s decision has provided a pivot in verifying land titles against the US and Canada across North America, since those countries presumed to abandon their foundations in constitutional democracy; the one-truth of Christianity; the rule of law; etcetera, in the 1870s. Both countries put the land race ahead of law.

It is a live issue in British Columbia, if not all of Canada, as Bruce Clark wrote in 2019:

10. Faced with the prospect that the Indians might not “sell” at ridiculously low prices the “Protection” duty of the crown and its law officers knowingly and intentionally was corrupted by the judiciary, not necessarily for the direct benefit of any individual judge or lawyer, but rather in the service of the newcomer public’s interest in stealing the Indians’ possession and usurping their jurisdiction.

11. Specifically, in the 1870s the governments of both the USA and Canada dealt with this threat by invading, occupying, and governing the yet unceded indigenous national territories under the auspices of their own legislation, regardless of the absence of treaties. The legal profession and judges permitted and led the invasion.[i]

The Indian Act, 1876, is one of the most well-known mechanisms of this invasion and arbitrary government.

In R. v. White and Bob, 1964, the Snuneymuxw defendants cited Marshall extensively. They were defending their 1854 treaty right to “hunt as formerly” around Nanaimo against a rogue Canadian province that had, by 1964, invested almost a century’s worth of Indian Agents to illegally and extra-judicially stamp out their economic activities down to the most basic, essential, sustenance hunting and fishing. The Snuneymuxw hunters won, and their treaty with Governor James Douglas, Vancouver’s Island, was recognized as a treaty by the Supreme Court of British Columbia. The government appealed, and the Supreme Court of Canada sent it back in 1965 with a one-line ruling confirming the provincial court’s decision.

Else the court would have had to contend with this excerpt, among others, in a 131-page Defendants’ Factum prepared for a potential hearing in front of the Supreme court of Canada:

“c. Aboriginal title and aboriginal occupancy in Anglo-Saxon jurisprudence

“The concept of aboriginal title and native rights flowing therefrom has long been recognized by Anglo-Saxon jurisprudence. In a series of famous judgments in the 19th century the Supreme Court of the United States dealt with questions relating to the nature of Indian title

The Respondents submit the judgment in Johnson vs. McIntosh is of great importance in determining the aboriginal rights of the Indians of the West Coast, for the reasons given by Norris J.A.:

…The judgment in Johnson vs. McIntosh (supra) was delivered at an early stage of exploration of this continent and when controversy as to those rights was first becoming of importance. Further on the consideration of the subject matter of this Appeal, it is to be remembered that it was delivered only five years after the Convention of 1818 between Great Britain and the United States providing that the northwest coast of America should be free and open for the term of ten years to the vessels, citizens, and subjects of both powers in order to avoid disputes between the powers. The rights of Indians were naturally an incident of the implementation of a common policy which was perforce effective as applying to what is now Vancouver Island and the territory of Washington and Oregon, all of which were then Hudson’s Bay territories. For these reasons and because the judgment in Johnson v. McIntosh was written at a time of active exploration and exploitation of the West by the Americans, it is of particular importance.”

It is still of particular importance. Modern judgments in Canada’s Supreme Court have whittled the meaning of Aboriginal title down to “reconciliation” and “the right to be consulted and accommodated.” They have defined the meaning of “land title” almost completely out of “Aboriginal title.”

In 2014 the Tsilhqot’in won a Declaration of Aboriginal Title to much of their national territory. Ten years later, the governments refuse to know how to implement that, and precious little has changed – while gold mining corporations have since barged on with work in the declared title areas, and there is no taxation scheme in place to direct property taxes to the Tsilhqot’in.

Today’s Chief Justices do not encourage or support declarations of title, they fight them as they just did in the case of the Nuu-chat-laht this year, and they all say that the “existing Aboriginal and treaty rights” of the 1982 Constitution Act will find their full expression through negotiated final agreements. But those negotiations are financed, mandated, controlled, and arbitrated by the federal government of Canada.

If the fiduciary duty were intact, the government would have investigated and positively identified Aboriginal title areas, in accordance with the Aboriginal perspective in each case; protect the constitutional rights that flow from them; offer a competitive purchase price for any land that might be considered for sale by the Aboriginal title holders; and otherwise stay out of them.

Instead, the negotiations – the governments insisting on denying any real property rights in the Original Inhabitants – are conducted under duress, where forced deprivation and subordination surround and isolate small Indian Reserves which were never accepted as a settlement of anything; against a backdrop of unaffordable and adversarial litigation before biased judges; and, on the other hand, roadblocks crashed by Emergency Response Teams and the military. The fiduciary duty is not intact.

In his follow-up to the omnibus sweep of Johnson v. McIntosh, Marshall said more clearly:

“The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect claim; nor was it so understood.

… “The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.”

That was in Worcester v. Georgia, 1832, and a political response was soon issued. President Andrew Jackson told the world: “Marshall has made his decision, now let him enforce it.” The great state of Georgia sent the Cherokee away, out of their homeland, on a Trail of Tears.

In 2006, the Indigenous Peoples and Nations Coalition of Alaska and Hawaii completely rejected the USA’s application of the 1823 ruling, in their shadow report to the UN Human Rights Committee concerning the USA’s implementation report:

“The Tee-Hit-Ton (1955) and Johnson v. McIntosh cases affirmed the direct application of the racist Doctrine of Manifest Destiny, Doctrine of Incorporation and several other ‘doctrines’ or derogatory principles to effectively subjugate, dominate and exploit Alaska and Hawaii under the auspices of domestic dependent Federal Indian Law right under the noses of the Decolonization Committee and the General Assembly of the United Nations.”[ii]

Perhaps the States relied only on key selections of Marshall’s law, not to be confused with martial law, going to the markedly ethnic superiority of lines like,

“On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all, and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence.”

Incidentally, property owners in Hawaii buy “title insurance” along with their home insurance. It protects their interests in the event of a successful Hawaiian title claim against the property they bought from an American government which never legally acquired title to it.

If the 1823 ruling is to be thrown out, then out with it goes the foundation of every claim to a right to lawfully proceed in treaty making in North America. Along with it, the concept of the rule of law as a basis for constitutional democracy. If the 1823 ruling is to be kept, in its entirety, then out goes every Canadian or US claim to ownership of lands which did not conform to the constitutional requirement set out therein:

“According to the theory of the British Constitution, the royal prerogative is very extensive so far as respects the political relations between Great Britain and foreign nations. The peculiar situation of the Indians, necessarily considered in some respects as a dependent and in some respects as a distinct people occupying a country claimed by Great Britain, and yet too powerful and brave not to be dreaded as formidable enemies, required that means should be adopted for the preservation of peace, and that their friendship should be secured by quieting their alarms for their property. This was to be effected by restraining the encroachments of the whites, and the power to do this was never, we believe, denied by the colonies to the Crown.”

CJ Marshall, in Johnson v. McIntosh

Magna Carta, 1215, and the Royal Proclamation, 1763

Britain may have asserted sovereignty on the Atlantic seaboard, and across North America, but they knew they did not own the land. At least, their American successors at law knew it in 1823 – but they later seemed not to know it in, say, 1876; 1912; 1926; 1973; etc.

What they knew in 1823, what Marshall knew, was:

“Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

“In the establishment of these relations, the rights of the original inhabitants were in no instance entirely disregarded, but were necessarily to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery gave exclusive title to those who made it.”

The concept of “sovereignty” following chartered sailors across an ocean becomes difficult to translate to pluri-national, multi-theistic states of the 21^st century, and non-stop global migration by princes, billionaires, and multi-national companies. To wit, in 1823 (and long since before 1492) the Romans of conquered Europe considered themselves descendants of the One True God, bar none. The superiority of Christianity simply melted competing nations’ founding mythologies, according to the colonial lore.

Still, they were held to a standard, and the local feudal lords of England enforced a standard as well – Magna Carta, 1215 – in much the same way Pontiac and his Allies forced the Royal Proclamation of 1763.

It had been about the same amount of time between contact and manifesto in both cases; from 1066-1215 for the British, and from about 1550-1763 for the North American nations. Magna Carta, by order of the Roman Catholic King, constitutionalized the monarch’s rights and their limitations. For instance, if the crown made a claim to possessing title to land, they had to prove their claim in court against any challenger. Landholders were protected “against arbitrary exercise of power by a sovereign that enjoyed immunity in its own courts prior to the enactment of modern crown liability statutes.”[iii]

And also, according to the common law (which predates the Roman law): “the dignity of the crown” prevents it from acquiring possession, rightly or wrongly, by physical occupation of the land. For the crown to have possession, of its own, in land, it must have a title of record, as in a memorial of a court or legislative body.

In America, the Royal Proclamation was, in effect, an Executive Order extending the sense of Magna Carta to the colonial governors. King George III just wrote it up specific to North America.

In the same way that Roman and Norman colonizers of England, centuries before, were held to the judicious standard they professed to be introducing to “the heathens” – they were made to recognize the titles and jurisdictions of the peoples who built Stonehenge; so the new British monarchy found itself unable to hold any ground without the support of the Original Inhabitants (and their military leaders) in North America.

By 1763, France had lost the Seven Years War against Britain. Along with the war, France lost its Native Allies to Britain, and its interests in settlements, trading, and treaty making specific to a massive series of nations from the St. Lawrence River to Nova Scotia, and south of there.

And King George sent the Royal Proclamation to the Governors to arrest the settler invasion-in-progress of “the Indian Nations, with Whom We are Aligned.” They call that proclamation the “Indian Charter of Rights.”

Several American colonies revolted two years later and declared Independence from Britain over the next decade. The Americans took exception to a number of provisions in that “Charter,” and a few unrelated taxation issues, and what had been colonies of Virginia, Pennsylvania, Maryland et al, became independent states – soon to be united states.

In 1823, Chief Justice Marshall trod carefully in his young nation, but he did bring up the Proclamation in consideration of those North American nations whose land had not been, “… ceded to or purchased by Us”:

And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that 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; We do therefore, with the Advice of Our Privy Council, declare it to be Our Royal Will and Pleasure, that 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.”

The Christian nations of Europe assumed their dominion over new lands,

“… ‘then unknown to all Christian people,’… Thus asserting a right to take possession notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any Christian people who may have made a previous discovery.”

In another way, other faith-based empires encouraged conversion by recognizing rights based on personal religious beliefs. The spread of Islam, for instance, was improved by the clause for protection of Muslims from enslavement by other Muslims. In areas like Indonesia, when, at the relevant time, slavery was a real part of the social strata, individuals could give themselves into indentured service if they had no land or tenure. Islam was often embraced by people of that class.

Perhaps the Europeans’ law is really a matter of faith. There have been plenty of dark nights of the soul where law and faith were lost. For instance, Henry III sent John Cabot out on a royal charter to get colonies in the Americas, in direct contravention of the 1493 Papal Bull assigning half of… whatever lay to the west of Europe… to Spain, and half to Portugal. At that time, the Pope would have been the head of Henry’s church and the touchstone of monarchic divinity.

Nevertheless, Christian Britain did indeed outcompete Christian Spain and Portugal. And France. And Christian Spain did war with Christian France; Portugal with Spain; Holland with Britain; etcetera.

In the case we’re discussing here, Thomas Johnson was, in fact, a Supreme Court Judge. If anyone, in 1773 and 1775, should have known that the content of the Royal Proclamation of 1763 forbade any individual from making purchases in their own name from the Indians, it was Thomas Johnson, SCJ.

References:

Full text of the US Supreme Court’s decision in Johnson v. McIntosh, 1823: https://supreme.justia.com/cases/federal/us/21/543/

R. v White and Bob, 1965 Respondent’s Factum to Supreme Court of Canada

[i] Bruce Clark, LL.B., in “Ongoing Genocide caused by Judicial Suppression of the “Existing” Aboriginal Right,” 2019.

[ii] Shadow report to UN Human Rights Committee concerning the USA’s implementation report, by the Indigenous Peoples and Nations Coalition, 2006

2006-usa-universal-periodic-review-un-shadow-report-by-indigenous-peoples-and-nations-council.-alaska.hawaii Download

[iii] Professor Kent McNeil, in “The Onus of Proof of Aboriginal Title,” Osgoode Hall Law School, 1999.

Sentencing child abusers: where’s the Director of Services?

29 Thursday Jun 2023

Posted by Admin in Children, Commentary, editorial

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Tags

Aboriginal Peoples Family Accord, aboriginal title, Indigenous child welfare, Indigenous Peoples, Sovereignty

WARNING – this article refers to abuse of children

Two Indigenous people, a married couple, were sentenced on Friday June 23, the foster parents of young Indigenous siblings. They were charged with assault and manslaughter and sentenced to ten years in prison.

Our deepest condolences go to the children’s family, the perpetrators’ families, and the Sto:lo people in whose community these events – which are not unique – have unfolded.

That Sto:lo community is not alone, not in any part of this tragedy. The incomprehensible hurt and loss of innocent Indigenous children is part of a much larger, much older, ongoing and world-famous Canadian assault on Indigenous Peoples.

Another Indigenous mother presented her petition against British Columbia and Canada to an international arbiter, in 2007, for the senseless, routine, and indefensible apprehension of her children and their subsequent abuse in Ministry “care.”

Her case was admitted to the Inter-American Court in 2014: not only do Indigenous Peoples suffer for a lack of jurisdiction over their own children and families, but they suffer from the total denial of their title and rights over everything else – their land and jurisdiction – that would allow them to maintain their children and families according to their own traditions.

That is, losing children to the state is the direct result of the state’s denial of Indigenous Peoples’ land titles and the accompanying rights, wealth, national identity, authentic governance, and social and cultural structures.

The Lake Errock case in the news

The First Nations Leadership Council has called for the resignation of the Minister of Child and Family Development, Mitzie Dean, and the Premier of BC snapped back that the Ministry has his full support and confidence. The BC Greens Caucus has now backed them up on the demand for a resignation.

Are criminal charges pending against the Director of Child and Family Services of British Columbia? Children “in care” also died in 2020 and 2017 in BC. And 2015. And… the total lack of accountability or culpability in Indigenous child deaths “in care” is a signal from the colonial administration: they are only doing what they set out to do. This colony set out to supplant Indigenous Peoples, and the deaths of their children in mandated forcible removals is “just” a part of that mandate. It is no different from the “kill the Indian in the child” mandate established by the first Prime Minister of Canada, Sir John A. MacDonald, when he stated in 1910, “It is readily acknowledged that Indian children lose their natural resistance to illness by habitating so closely in these schools [Indian Residential Schools], and that they die at a much higher rate than in their villages. But this alone does not justify a change in the policy of this Department, which is being geared towards the final solution of our Indian Problem.”

Sixteen months after this eleven year old boy was killed in Lake Errock, by the foster mother, the Ministry’s culpability in the abuse and death is clearly a contributing factor. Seven months had passed since any agent of the Ministry, any social worker, checked the foster home or the children’s well being when the fatal events happened at the end of February 2021. There was not even a virtual check in by phone or online communication.

The trial has revealed that brutality was ongoing in that home, including coercing other children resident there to participate in abusing the 8 and 10 year old sister and brother.

While mainstream media is tip-toeing around the legendary mortality rate in Canada’s Indigenous child apprehension programs, there are some basic facts that we should be reminded of.

Aboriginal delegated agencies for children and families

There is, in British Columbia, a perpetual cycle of tragedy, inquiry, recommendation, ad hoc Indigenous involvement, delegated control capped by BC MCFD mandates, funding cuts, mismanagement, denial… tragedy, inquiry, recommendations…

The fact that this cycle has continued unchecked since the 1980s is proof positive of a mandate among BC social workers to disrupt and endanger young Indigenous families. Apprehension of children from young Aboriginal families, according to a career social worker who would rather not be named, is the unwritten but understood objective.

Indigenous communities have fought valiantly for the power to help their own families without interference. Indigenous Chiefs have rallied to several major commitments to step into roles of youth care and family support over the last four decades.

What they get is delegated powers from a colonial Ministry, which is perpetually determined to undervalue the cost of these responsibilities, and to control mandates and delivery.

The Indigenous foster parents of the two Indigenous foster children in this case were living in an area, Lake Errock, which is served by Xyolhemelh, a delegated Aboriginal child and family services society.

Xyolhemeylh is the agency that was responsible for Alex Gervais. In 2015, Gervais, age 17, died by falling out of an Abbotsford hotel room window where he had been “temporarily” housed by the society for 49 days.

The event was the subject of a February 2017 report on the dysfunction of B.C.’s Aboriginal child welfare system.

A press statement from the BC General Employees Union in 2017 explained:

“The Ministry of Children and Family Development (MCFD) is responsible for providing funding for a significant portion of the services that delegated Aboriginal agencies like Xyolhemeylh provide. A recent agreement between MCFD and the agency has brought caseload funding on par with levels within the MCFD, providing some relief from a dire recruitment and retention crisis at Xyolhemeylh.

“However, because MCFD has itself been drastically under-resourced for decades, the increase still isn’t enough to provide care that is appropriate to Aboriginal children and youth. “Unfortunately, staffing resources equal to MCFD is no answer for Xyolhemeylh workers who are desperately trying to provide services in culturally appropriate ways to children whose families are scarred with multigenerational trauma, and the dire poverty that so often accompanies it,” said BCGEU President Stephanie Smith.”

The cycle

The report, “Skye’s Legacy: A Focus on Belonging,” was submitted by B.C. Representative for Children and Youth Dr. Jennifer Charlesworth, explored the life of a youth named Skye, who died of an overdose on her 17th birthday in August 2017.

The report found that B.C.’s child welfare system left Skye without a sense of belonging, particularly as an Indigenous person, which contributed to her death. She was taken from her mother at age five and lived in fifteen different homes before her death twelve years later.

“Collaboration among ministry, Indigenous communities needed to assess living situations of kids in care: jury.” This headline refers to the death of a 17-year-old Cree teen in a group home in Abbotsford. The report recommended more family-based services for children in care and faster action when those children go missing.

Traevon Chalifoux-Desjarlais was found dead in a bedroom closet in September 2020, four days after he was first reported missing by a group home staffer.

The Timeline

2023, June 29 – The B.C. Green Caucus stands with the FNLC, calling for the resignation of Minister of Children and Family Development, Mitzi Dean, in light of the shocking and horrific systemic failures of the Ministry that have continued under their watch.

2023, June – First Nations Leadership Council calls for the resignation of the Minister of Child and Family Development, Mitzie Dean, over the 2021 death of a child in foster care in Lake Errock, after the trial and sentencing of the perpetrators. The children’s case was handled by a delegated aboriginal agency, which had not checked in for seven months when the child died.

2021, June – report by BC’s Children and Youth Advocate, “Skye’s Legacy: A Focus on Belonging,” explored the life of a youth named Skye, who died of an overdose on her 17th birthday in August 2017. The report found that B.C.’s child welfare system left Skye without a sense of belonging, particularly as an Indigenous person, which contributed to her death. She was taken from her mother at age five and lived in fifteen different homes before her death twelve years later.

2021, May – the unmarked graves of 215 children on the Kamloops Indian Residential School grounds are confirmed. This leads to examination of other Indian Residential School sites, and further confirmation of similar mass unmarked graves at every school inspected so far.

2020, September – Traevon Chalifoux-Desjarlais was found dead in a bedroom closet, four days after he was first reported missing by a group home staffer.

2020 – present: most First Nations have accepted the demise of the Aboriginal Peoples Family Accord, the Tsawwassen Accord, and the Indigenous Child at the Center Action Plan. Instead, they have implemented the recommendations of the 2015 Report of MCFD Special Advisor Grand Chief Ed John. The report called for a Social Worker on every Indian Reserve, and the January 2020 enabling legislation provided delegated agency, to fulfill the Ministry mandate, to each First Nation.

2020, January – Bill C-92, “The Act respecting First Nations, Inuit and Metis children, youth and families” applies to Indigenous groups, communities or peoples, regardless of status or residence within Canada, who bear existing and inherent Aboriginal rights as per section 35 of the Canadian Constitution.

It is designed to affirm the rights and jurisdiction of Indigenous Peoples in relation to child and family services, and to set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children. The Act creates a set of National Standards that must apply when working with Indigenous children, youth and families, and provides for changes to jurisdiction when making decisions about Indigenous lives.

The Act contributes to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples and provides an opportunity for Indigenous peoples to choose their own solutions for their children and families. Our children, our way.

2017, August – an Indigenous youth named Skye died of an overdose on her 17^th birthday. She was taken from her mother at age five and lived in fifteen different homes before her death twelve years later.

2017 – A recent funding agreement between MCFD and the delegated aboriginal agencies brought caseload funding on par with levels within the MCFD.

2016 – APFA runs out of funding, dissolves.

2016 – 2014? – termination of regional delegated agencies – consultation and development program – follows from lack of support from individual communities for the regional, not community-based, process. Instead, most Bands sign on to deliver MCFD mandate themselves, following Ed John’s report recommending a social worker / agent on every reserve.

2016, November – Indigenous Resilience, Connectedness and Reunification–From Root Causes To Root Solutions; A Report on Indigenous Child Welfare in British Columbia Final Report of Special Advisor Grand Chief Ed John. The report calls for a Social Worker on every Indian Reserve.

2016, March – The B.C. Teachers’ Federation calls for Stephanie Cadieux, Minister of Children and Family Development, to resign after Patricia “Indigo” Evoy was found dead in a Burnaby, B.C., apartment March 10. She is the third aboriginal youth, in as many years, to die while receiving help from the B.C. Ministry of Children and Family Development.

2016, March – Patricia “Indigo” Evoy died while in Ministry “care.”

2015, December – Plecas Report part 1 released

2015, December

2015, December 22 – Sto:lo Tribal Council call for Bob Plecas and Ed John’s resignations, and reports to be shelved. They cite the misleading appearance of Indigenous representation with Ed John’s participation, which was not endorsed by Indigenous groups

2015, September – Grand Chief Edward John appointed Special Advisor on Indigenous Children in Care, “to engage First Nations and Aboriginal leaders in discussions to help the Province reduce the number of Aboriginal children in care; and, to engage with the federal government in meaningful work to enhance prevention and intervention work as well as address ‘root causes,’ as discussed in the report.” 6 month term

2015, September – NDP John Horgan calls for Minister of Children and Families Stephanie Cadieux to resign, following the death “in care” of Alex Gervais.

2015, September – Alex Gervais, age 17, died by falling out of an Abbotsford hotel room window where he had been “temporarily” housed by the Aboriginal delegated authority the Xylohmelh Society for 49 days.

2015, July – “Aboriginal Children in Care” report to Canadian Premiers identified “core housing need” among 40% of single parent families living on-reserve, among other major iniquities: in 2012, 40% of Indigenous children live in poverty; 43% of women in federal prisons are Aboriginal.

2014, December – The Lil’wat petition is admitted to the InterAmerican Court of Human Rights, which waived the requirement to prove exhaustion of the domestic remedy

2014, August – Canada’s Premiers directed provinces and territories to work together on solutions to reduce the number of Aboriginal children in child welfare systems. A report was provided to Premiers at the Council of the Federation (COF)

2013, November – report: When Talk Trumped Service: A Decade of Lost Opportunity for Aboriginal Children and Youth in B.C.

Mary Ellen Turpel-Lafonde, Representative for Children and Youth, BC

The report offered critical observations on how both Aboriginal organizations and BC’s Ministry of Children and Family Development (MCFD) have failed to meet the needs of children through what she has stated is a system of “fractured accountability”.

2011 – Child and Family Wellness Accord

Between leadership of the nine south island First Nations and urban Aboriginal community, known as the South Island Wellness Society, and the Province of B.C.

– to design and develop an Indigenous child services system for the care and protection of Aboriginal children, youth and families in the region.

-to restore, revitalize and strengthen the services in an effort to address the gaps and socio-economic barriers impacting the well-being of Aboriginal children and families

2011 – The Lil’wat petition to the InterAmerican Commission on Human Rights is accepted, the Edmonds petition, concerning the lack of Canadian jurisdiction to interfere in Lil’wat families living in Lil’wat territory

2010 – termination of APFA, end of funding for Child at the Center and Interim Child and Wellness Council

2008, July – Interim Child and Wellness Council established to gather further input for the Indigenous Child at the Centre Action Plan to ensure it reflects the knowledge of front line workers, youth, the community and leadership. The Council will then develop a workplan to advance and implement the Child at the Centre Action Plan.

2008, July – First Nations Leadership Council announces the Indigenous Child at the Centre Action Plan

2008, June – Prime Minister Stephen Harper apologizes for Indian Residential Schools

2008, April – VACFSS receives mandate from MCFD for “child protection,” meaning license to remove children from their homes and place them “in care”

2008, February – Overview of the Child Critical Injury and Death Investigation and Review Process in British Columbia

Prepared by The Children’s Forum: – BC Coroners Service – Ministry of Children and Family Development – Ombudsman – Public Guardian and Trustee – Provincial Health Officer – Representative for Children and Youth

2008, January 25 – the ‘Walking Together to Keep Indigenous Children at the Centre’ Declaration of Commitment among Indigenous Peoples “in” British Columbia

2008 Aboriginal Peoples Family Accord

A process of constituting regional delegated aboriginal agencies

2007, November 29 – the ‘All Our Relations’ Declaration of the Sovereign Indigenous Nations of British Columbia

2007 – GOOD PRACTICE ACTION PLAN

Ministry of Child and Family Development, BC

“Aboriginal peoples exercising their rights to jurisdiction over their children’s well-being, through self-determination, have strong and healthy children, youth and families.”

2006 – the Assembly of First Nations settles a number of individual and class-action suits against the Canadian government for harms caused by Indian Residential Schools.

2006 – the creation of an independent advocacy and oversight body – the Representative for Children and Youth by Hughes Review

2006, April – Hughes Review released

2005 – Hughes Review commissioned

To review :

the system for reviewing child deaths, including how these reviews are addressed within the Ministry,

advocacy for children and youth;

and the monitoring of government’s performance in protecting and providing services for children and youth

2005 – Opposition BC party NDP call for review into the two Aboriginal child deaths; advocates for other youth call for supports to youth in care

2002, September – toddler Sherry Charlie died in a foster home she was placed in by MCFD / delegated USMA (Nuu-chah-nulth) child services

2002, September – 23-month-old Chassidy Whitford was killed by her father on the Lakahahmen reserve near Mission in 2002, in Xyolhemelh / Fraser Valley Aboriginal Child and Family Services care.

2002, June – Formation of the First Nations Leadership Council, under the Tsawwassen Accord between the province of BC, BC region Assembly of First Nations, First Nations Summit, and the Union of BC Indian Chiefs.

2000-2001 – Ed John, an Indigenous Chief of the Carrier Sekani Tribal Council, is made the Minister for Children and Family Services, BC

2001, December 14 – VACFSS and the province sign the Delegation Enabling Agreement (DEA). VACFSS can provide a full range of delegated Resource and Guardianship services. It also provides non-delegated services through Indigenous Family Preservation and Reunification Services.

2000 – First Nations child and family services, national policy review – report by DIA and AFN

2000 – the Nisga’a Final Agreement includes agency over Children and Families, and the Nisga’a Child and Family Services is an extension of the provincial Child and Family Services law.

1999 – VACFSS began negotiations with the Ministry to deliver delegated services under the BC Act. The VACFSS Guardianship Pilot Project began.

1998 – A Review of the Implementation of the Report of the Gove Inquiry into Child Protection

1996 – creation of the Children’s Commission to review child deaths and oversee the activities of the new ministry

1996 – a series of community consultations leads to VACFSS receiving Indigenous support to get “designation status” – providing advocacy to families and notifying First Nations when their children were removed from their member families in the Lower Mainland

1994 – Gove Commission announced following murder of Matthew Vaudreille

1994, May – creation of Child, Family and Community Service Act, and the Child, Youth and Family Advocacy Act

1992 – “Liberating our Children, Liberating our Nation” – legislation review report calls for Indigenous jurisdiction over Indigenous children

(Community Panel Child Protection Legislation Review, British Columbia Report of the Aboriginal Committee: Eva Jacobs, Kwakiutle Nation and Lavina White, Haida; Fred Storey, Project Manager; Loretta Adams, Researcher; Faye Poirier, Administrative Support)

1989 -The Nuu-chah-nulth Department of Family and Child Services (Usma) becomes the first Aboriginal agency in Canada to exercise full delegated authority for child welfare.

1988 – the off-reserve advocacy union, United Native Nations, work in family reunification, and volunteerism spreading to child care and protection, is formalized as the Mamele Benevolent Society to facilitate in-home support programs, advocacy for families with children seized by the BC Ministry. This organization becomes the Vancouver Aboriginal Child and Family Services Society in 1992.

1986 – Child Welfare Committee

1980 – Child, Family and Community Service Act BC

1980 – Spallumsheen bylaw; child protection is carried out by the Band

1980 – Indian Child Caravan took place over Thanksgiving weekend, October 9-13, 1980. The Caravan began in Prince George and picked up more people along its route. The group advanced to Williams Lake and Mount Currie, and merged with people from the Interior and Vancouver Island communities before culminating with a rally in Vancouver. And sit-in outside the Minister’s house

1972-73 On March 9, 1973, the National Indian Brotherhood appeared at the Standing Committee of the House of Commons on Indian Affairs. Joe Clark, then a Member of Parliament from Alberta, moved that the Committee recommend to the House of Commons that the NIB’s

1972 Aboriginal Rights Position Paper be adopted as a description of aboriginal rights. It includes control of children and families.

1969 – Moccasin walk of a hundred miles, Indian Homemakers Association of BC,

raise funds for the British Columbia – wide Indigenous leadership gathering, which becomes the Union of BC Indian Chiefs, with a mandate to pursue the Indian Land Question.

1960s – “60’s scoop” indiscriminate and mass seizure of Indigenous children to state “care” and adoptions outside Canada. Follows delegation of social services from federal to provincial, and decriminalization of keeping children out of Indian Residential Schools

1920 – Indian Act amended to require Indigenous child attendance at Indian Residential Schools, on pain of imprisonment of the parents for non-compliance

BC’s first Superintendent of Neglected Children, 1919

1910 – Prime Minister John MacDonald: “It is readily acknowledged that Indian children lose their natural resistance to illness by habitating so closely in these schools [Indian Residential Schools], and that they die at a much higher rate than in their villages. But this alone does not justify a change in the policy of this Department, which is being geared towards the final solution of our Indian Problem.”

end list *

Please find archival material at: ihraamorg.wordpress.com and check the archive in “Children” on this site.

chief-roger-adolph-statimc.-on-aboriginal-peoples-family-accord-sept.2008-2 Download

“I guess you had more rights than we thought”

21 Wednesday Jun 2023

Posted by Admin in Commentary, editorial, Comprehensive Claims - Policy and Protest

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Tags

aboriginal title, Calder, Comprehensive Claims Policy, Federal Liberals Comprehensive Claims Policy, Indian land, Land claims, NIshga case, Supreme Court of Canada, unceded, unextinguished, unsurrendered

Fifty years since Calder v. The Attorney General of British Columbia: how Canadian policies – and judges – adapted to delay and deny recognition of Indigenous Peoples’ land title

On January 31, 1973, Indigenous people’s unextinguished right to “possession” of their lands was recognized in a Canadian court for the first time.

Three Supreme Court of Canada judges reasoned that the Indigenous Nisga’a People had never lost to British Columbia their “possession of the land,” and had the continuing “rights to enjoy the fruits of” their land.

In the case presented by the Nisga’a nation, with Frank Calder as the name plaintiff, the people established that their ancient rights to the soil had not, could not have been, diminished by any unilateral pronouncements or colonial legislative acts: the Nisga’a had never freely relinquished, sold, or made treaty to surrender them.

Supreme Court of Canada justices Hall, Spence, and Laskin wrote 50 of 72 pages in the Calder ruling, finding in favour of that position, as per the Canadian constitution.

The court ruling was split, however. Three judges ruled Nisga’a had no title and, if it ever did, the presence of a British colony nullified it. The seventh judge refused to decide, based on a procedural anomaly.

Prime Minister Pierre Trudeau’s reaction was to say, “I guess you had more rights than we thought, when we did the White Paper in ’69.” Unfortunately, the exact purpose of the federal government’s 1969 position and policy was to erase those rights which they were well aware had never been addressed.

Some politicians were more responsive. Because of the court finding in the Nass Valley case, the former prime minister John Diefenbaker immediately addressed the government, asking that the question of Aboriginal rights be referred to a full bench of nine Supreme Court of Canada judges “as this question can be settled once and for all.” The Justice Minister, Otto Lang, said he would consider the suggestion.

The judges were very responsive. In the past fifty years, the Canadian judiciary has defined that title down.

The politicians did not refer the question, they constructed a policy even more dangerous than their 1969 White Paper. The Comprehensive Claims Policy, a process of extinguishing Aboriginal title and rights by agreement, emerged in 1974 and is still the government’s bottom line. It predetermines the result of every engagement with Indigenous Peoples where land and jurisdiction are concerned: gains in Canadian titles to land, financial settlement, and limited forms of municipal self-governance are paid for by release of Aboriginal rights and indemnification of the governments – and “anyone else” – for past harm.

The agreements are invariably negotiated under duress: under the conditions of poverty and desperation imposed by another unconstitutional action, the Indian Act of 1876. Also, still in effect.

“Extinguishment with consent” remains Canada’s policy and enthusiastic practice to date. It has been heavily criticized by international treaty bodies for at least twenty years.

Government policy has been mirrored by the Canadian judiciary. In case after case, they defined “Aboriginal title” into something quite different.

Judge made law

In every Indigenous action that followed Calder, government lawyers began their argument by quoting Justice Gould of the BC Supreme Court, who made the original ruling of dismissal against the Nisga’a in 1969. Lawyers for the crown all began their prosecution of Indigenous land-defenders and rights-exercisers, or their defense against being sued for land and rights, by saying: if there was ever any right or title to extinguish, then any Aboriginal rights or titles were extinguished by denial, declarations, or legislation of the Imperial or provincial crowns.

But, since 1973 and the epic realization that if the Nisga’a had title, so did every other Indigenous Nation west of the Rockies, by the same logic, the Canadian judiciary began to define that title out of reach and out of all meaning.

Ignoring the clearly and passionately iterated expressions of the meaning of Indigenous titles, offered over the last century-and-a-half by Indigenous Peoples themselves, judges dismiss essential elements of those as “absurd;” they sift out definitions of Aboriginal rights which are not too inconvenient for the state; and the politicians pass legislation to mechanize pacification of the piecemeal rights arising from the litigation.

Judges confirmed that Aboriginal rights are sui generis: Aboriginal rights and titles are just not like other peoples’ rights and titles, in Canadian Pacific Ltd. V. Paul, 1988. They made lists of requirements about what Indigenous Peoples have to prove in order to convince courts they have rights, like exclusive and continuing and exclusive occupation, in Baker Lake v. The Minister of Indian and Northern Affairs, 1980. That becomes quite hard to show, when communities were forcibly displaced and replaced by settlers.

In R. v. Adams, 1996, judges said Aboriginal title, being unlike other peoples’ titles, is actually a form of Aboriginal right. They defined what “the core of Indianness” means, in Dick v. The Queen, 1985.

They figured out that Aboriginal rights are only those activities which were in play in 1846, effectively freezing Aboriginal Peoples out of the right to develop and to have that development recognized as within their rights.

The judiciary then put themselves, and Canada, squarely in charge of elaborating on the constitution, where it concerns Indigenous Peoples, because that, Chief Justice Antonio Lamer explained in R. v. van der Peet, 1996, is what Section 35(1) is for. “Aboriginal rights are aimed at the reconciliation of the prior occupation of North America by distinctive aboriginal societies, with the assertion of Crown sovereignty over Canadian territory, by bridging aboriginal and non-aboriginal cultures.”

The reconciliation demanded by Section 35, apparently, is to be defined and determined by Canada unilaterally. And they don’t have to reconcile with Aboriginal cultures when they can justify infringing them.

After they decided Aboriginal rights remain behind 1846, judges subsequently ruled that any Aboriginal commercial activities should really be in line with 1846 revenues. Nuu-chah-nulth, 20011.

Shortly after Delgamuukw, 1997, and that first positive definition of Aboriginal title as something other than sui generis, or unknown, courts went into high gear. With Taku River Tlingit, Halfway River, Haida, and Douglas, courts instructed the government that the issue here was not so much about Aboriginal title as it was about accommodating that title by consulting with Aboriginal Peoples when there probably is title, and then sharing benefits from industries that extract revenue from those probably-title lands.

But Indigenous Peoples’ land titles are protected from just that kind of exploitation by Canada’s constitution. Judges have stepped in to “bridge” any inconsistencies.

In fact, Prime Minister Justin Trudeau recently explained that, “we will not be revisiting the Constitution.”

Canada and British Columbia have devoted tens of billions to its legal defense against the Indigenous title holders; its out-of-court negotiations, which were often coercive and always divisive for the Peoples; and its settlement awards for relinquishment of claims, which funds were always alarmingly small.

They have not, however, spent any money on positively identifying Indigenous title lands.

Widespread judicial refusal to respect international norms and treaties is exactly the criteria required for third parties, that is, other states, to bring Canada before the World Court. If they haven’t done so yet, maybe cheap Canadian exports of raw resources, subsidized by denial of Indigenous titles, is clouding their vision.

International attention

In 2009 and 2014, the Inter-American Court of Human Rights (IACHR) found two cases from British Columbia admissible on the basis that there is no domestic remedy to grievances between the Indigenous parties and the state of Canada. The Hulqiminum Treaty Group and the Lil’wat plaintiff in Edmonds were both found to have exhausted any chance of a fair hearing within Canada.

This is what happens when state policies preclude access to an impartial court, or when an entire state judiciary demonstrates a refusal to recognize rights defined in international treaties: international courts gain jurisdiction over the matter. What has not happened so far is Canadian participation in the IACHR proceeding. Both cases have stalled.

One of the first international Indigenous cases turns fifty next year. Sandra Lovelace, Maliseet from Tobique, took her case to the UN Human Rights Committee. They found that Canada was in breach of its obligations under the International Covenant on Civil and Political Rights, 1969, (ICCPR) in its use of the Indian Act to discriminate against Indigenous women. Lovelace’s case succeeded to the international arbiter because the Attorney General of Canada and the Department of Indian Affairs had just sued Jeanette Corbiere Lavell, to overturn a decision in her favour regarding the same issue – gender-based loss of Indian Status. The Supreme Court had found for the state: “The Canadian Bill of Rights does not affect the Crown’s legislative authority with regard to Indians.”

It can only be a question of other countries’ love for cheap timber, minerals, gas, and fish – subsidized by Canada’s political denial of Indigenous Peoples’ rights – that has stopped the land question from being prosecuted in a similar way to Lovelace. The same ICCPR states in Article 1:

International Covenant on Civil and Political Rights
1. All peoples have the right of self-determination.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Nuchatlaht 2023

In May of this year, BC Supreme Court Justice Myers ruled that the Nuchatlaht “may” have aboriginal title to some areas. His decision is regressive, almost contemptuous, and turned a valuable opportunity into a colossal waste of time and money. BC courts do not tend to find for Indigenous rights – the Supreme Court of Canada (SCC) does that.

What’s more: the media didn’t even show up for it. A single report by the Canadian Press was picked up by BC outlets, who used stock photos of previous Nuchatlaht appearances to accompany the brief, mis-quoted, disturbingly disinterested article.

This case is the first Aboriginal title case to follow Tsilhqot’in, 2014, where, on appeal from BC to the SCC, Aboriginal title lands were declared, ruled upon, and drawn on a map for the first time. A great deal more attention to detail was deserved to this follow-up case.

One of the details is the fact that Indigenous Peoples are still paying a King’s ransom in time and money to plead for their rights, and that is in itself a travesty of justice.

The elected politicians have not pursued justice – they have fought it in their own courts for a century – and instead tighten their policies. The electorate continue to make Canada an acid environment for Indigenous individuals, families, businesses, communities. Logging, mining, fishing, and every kind of industrial development has continued on the disputed lands at a pace normally associated with plunder in times of war.

Fifty years from now

“If the Indians win, there will be a cloud on all the land titles issued by the province.” So said Duncan Campbell Scott, Minister of the Interior and Superintendent of Indian Affairs, as part of the 1926 Judicial Committee on the Claims of the Allied Tribes.

The question was not “if” the Indians win: the question was “when” the Indians win. And there certainly is a cloud on all the land titles issued by British Columbia. That’s why the Province of British Columbia has a line item for “treaty making” in its annual financial audits: everybody knows BC does not have title, even Standard and Poor’s, and BC’s creditors need to see that uncertainty mitigated.

In Hawaii, non-native homeowners buy Title Insurance. The Hawaiians have been making their way through the courts, proving their title to acre by acre, and banks won’t give out a mortgage for a property without it being insured against the inevitable claims of the rightful owner.

Check out the infographic and forthcoming infobook on Electromagnetic Print

Delgamuukw v. The Queen

11 Monday Dec 2017

Posted by Admin in aboriginal title, BC treaty process, Comprehensive Claims - Policy and Protest

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Tags

aboriginal rights, aboriginal title, Delgamuukw, Gitxsan, Indigenous Peoples, Land claims, Ron George, Sovereignty, Wet'suwet'en

20 years later, Gisdayway family produces searing report on a legacy of dispossession and division following the court ruling that Gitksan and Wetsuwet’en title survives.

On December 11, 1997, the Supreme Court of Canada ruled that British Columbia has not extinguished Gitksan and Wetsuwet’en title and rights. The watershed case collected essential elements of previously recognized Aboriginal rights and articulated a clear sum of those parts: Aboriginal title and rights have not been extinguished by the province; Aboriginal title is a real, economic interest in the land; and Aboriginal title affords the owner the right to use the land and choose what it can be used for.

After December 12, 1997, thousands of column inches rolled off the presses of BC’s daily newspapers in protest. Everyone who made a living in BC was making it off the back of resources extracted from non-treaty, unceded and unsurrendered Indian land, and they were not about to let a legal ruling interrupt that. Farmers, loggers, exporters, truckers and all the businessmen in between drew up their position much in the same way US President Andrew Jackson did, when Justice Marshall said the Cherokee owned their homelands: The judge has made his ruling, now let’s see him come and enforce it!

Well, it wasn’t enforced any more effectively than in Georgia, where Jackson marched the Cherokee away along the Trail of Tears.

Twenty years of unabated logging and mining and development later, the ruling has informed a handful of cases that advanced the legal character of Aboriginal rights – at least, Canada’s definition of those rights. But what has changed on the ground? What is the real legacy of Delgamuukw, when eighty cents on the BC dollar comes directly from extractive industries, and the Indigenous are as poor as ever?

Chief Na’Moks, a Chief of the Tsayu (Beaver Clan) of the Wet’suwet’en, commented on the anniversary of Delgamuukw Day:

When the SCC overturned BC’s Court Decision, we were elated, but that was short lived as the decision has been continually ignored. We hoped that BC and Canada would uphold the Ruling, but they, and industry, chose to “Bury their Heads in the Sand” and pretend it did not apply to them. Continual approvals of Proposed Projects have proven this to be a fact.

According to Ron George, Wet’suwet’en of the Gisdayway lineage, destitute are the grandchildren of those Chiefs who sacrificed a decade of their own lives to protect their lands and bah’lahts – hereditary governance system – in the Canadian courts. That, and the fact that even the Supreme Court of Canada is no match for the governments’ insistence that Indigenous peoples will be ruled according to the state’s convenience, is the subject of his academic report: YOU’VE GOT TO PADDLE YOUR OWN CANOE.

At the time of the trial in BC Supreme Court, 1987 to 1990, George was president of the United Native Nations, based in Vancouver. Urban Gitksan and Wetsuwet’en raised funds to support the cause, and UNN offices housed UBC law students supporting their legal teams when the trial was moved to Vancouver. George, along with most of his family, did not have Indian Status. Gisdayway, the leader of their house, refused to leave home on his ancestral lands and move to the Indian Reserve. So fervent was his refusal that the early-20th-century Indian Agent concerned simply, unilaterally, enfranchised Gisdayway – Thomas George, and his wife Tsaybaysa – Mary George. His home was registered as a pre-emption. Enfranchisement was a Canadian torture device designed to further the destruction of Aboriginal nations, creating “Non-Status Indians” who could not live on Indian Reserves nor participate in any of their business, nor exercise Aboriginal rights.

They still can’t, in spite of the fact that the Supreme Court of Canada ordered a new trial into the Gitksan and Wet’suwet’en complaint to better articulate:

that the common law should develop to recognize aboriginal rights (and title, when necessary) as they were recognized by either de facto practice or by the aboriginal system of governance.

– Delgamuukw v. British Columbia, 1997 SCC, at 159

The new trial was never held. A combination of factors must have interfered: the financial cost – the three year trial, then the longest in Canadian history, came in at $23million; the cost in lives – a number of Chiefs and Elders died during the trial of stress-induced strokes and heart attacks, one of the laments in PADDLE YOUR OWN CANOE; and that the people believed their vindication at court would be enough to force the province to deal fairly.

The Delgamuukw case can certainly be understood as the highest colonial court’s check on a province that never bothered to make treaties with Indigenous Nations, but the machinations of colonialism in British Columbia are so grizzly. As McEachern J. explained the colonizer’s view at the time, in his 1991 ruling on the trial in BC Supreme Court: no Aboriginal title or right could survive the presence of British subjects and the operation of their laws in this place.

The trial and the 1991 BC Supreme Court ruling

On March 8, 1991, the BC Supreme Court ruled against 71 Houses of the distinct Gitksan and Wet’suwet’en nations, in their attempt to prove sovereignty and jurisdiction in their homelands. The ruling was a devastating event. “It was the one day in my life that I was going to quit the practice of law. I just felt I had misled 69 Chiefs and hundreds of people to believe there was some kind of justice in this country,” Peter Grant, one of the plaintiffs’ lawyers, later said of the ruling.

71 Chiefs had stood together to launch the case against The Queen and see it through the courts over a seven year period. They decided the first Chief named, so the case would carry his name, would be Delgamuukw. His position at home was that of the Chief who brings all the other Chiefs together after a day of discussion and debate.

The first words spoken in the trial were this:

“My name is Gisdayway and I am a Wet’suwet’en Chief and a plaintiff in this case. My house owns territory. Each Wet’suwet’en Chief’s house owns several territories. Together we own and govern Wet’suwet’en territory.”

Chief Delgamuukw, Gitksan, spoke next:

“For us the ownership of territories is a marriage of Chief and land. Each Chief has an ancestor who encountered and acknowledged the life of the land. From such encounters come power. The land, the plants, the animals and the people all have spirit and they all must be shown respect; that is the basis of our law.”

The case was launched in 1984, amid blockades against logging and a Gitksan blockade of the CN Rail line, which eventually had forty trains backed up on either side and strangled off the northern BC port. Direct action was a second-last ditch attempt to stop the clearcutting that was bankrupting the land-based peoples, as no legal avenue was open and the governments were not negotiating circumstances around the total devastation of the peoples’ natural wealth.

A documentary film from the time, “Blockade,” by Nettie Wild, captured the moment when RCMP are denied entrance to the Gitwangak Indian Reserve and directed to proceed along their “so-called right of way” – the train tracks. There on the rails the police read out an injunction for the train blockaders’ removal and Art Loring, Eagle Clan of Gitksan, standing in the middle of the track, replied:

Pointing to a very old totem nearby: I’d like to draw your attention to that pole there. Those poles tell us we’re right. We own this land; not the court, not the province, not the federal government. That’s why we do this, because we have a right to. And your courts come in and take us away because you think you have a right. We don’t agree. We’ve lived here far longer than you guys have.

My name is ten thousand years old. My wife’s name is twelve thousand years old.

The last ditch was to sue The Queen for recognition of their sovereignty and jurisdiction. Between 1987 and 1991, the trial encompassed 374 days of argument and evidence: 318 days of testimony. There were 61 witnesses; 53 territorial affidavits; 23,000 pages of transcript evidence at trial. The Elders brought forth their way of life and presented it, through translators, to the court. Gwis Gyen (Stanley Williams), for example, said this:

All the Gitksan people use a common law. This is like an ancient tree that has grown the roots right deep into the ground. This is the way our law is. It’s sunk. This big tree’s roots are sunk deep into the ground, and that’s how our law is.

The results of the litigation were immediate, terrifying and violent. Logging in the territory accelerated. Native school children in Hazelton and Moricetown were beaten and dumped in ditches, informed by their white attackers that “this is for the land claims!” And 400 pages of written reasons, reminiscent of 19^th century colonial logic, were afforded by the presiding judge, Alan McEachern.

Chief Justice McEachern, as he was then, was not circumspect about his contempt for the plaintiffs. He failed to see how the presented histories, maps, villages, house posts, clan system or hereditary titles, demonstrated any sort of ownership or identifiable governance. The province of BC argued,

“Clan membership is even less helpful as a way of identifying the membership of the society of Gitksan. A Clan is not a corporate body. Clan membership is a way of lining people up at Feasts, of determining who is host and who is guest, and it is a way of organizing a rule of incest.”

McEachern dismissed the Elders’ oral histories. In his reasons for dismissing the plaintiffs, he described them as “vagrants” whose lives were “nasty, brutish and short.” Peter Grant put it this way:

It was an opportunity lost. The man who heard the case as the judge did not have the capability of understanding or hearing what was being said to him.

“Treaty process” follows denial of rights

A few months later the report of the BC Claims Task Force was released, and, without a hint of irony, the BC Treaty Commission was in business a year later – with the express purpose of negotiating the extinguishment of Aboriginal rights. A paradox to be sure, since the province’s Supreme Court had just decided there was nothing to negotiate.

This move repeated the governments’ response to the Calder decision of the Supreme Court of Canada in 1973. There, three judges reasoned that the Nisga’a title to Nisga’a lands had never been extinguished. Although the case was dismissed as inconclusive – three other judges disagreed and the seventh refused to rule – it was the first time Aboriginal title had won any judicial support at all. Calder was immediately followed by the introduction of the Comprehensive Claims Policy: a mechanism by which Aboriginal rights, including land rights, would be negotiated away before they were acknowledged as such. The Nisga’a engaged in that mechanism, along with four other “test cases” from across Canada.

It was during this time, at least by 1997, that the Supreme Court of Canada decided Aboriginal title was a form of Aboriginal right. This, they said, protected Aboriginal title under the Constitution of 1982, Section 35, where, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Judicial definition of these rights has progressed along a marked departure from the Indigenous position that Aboriginal rights flow from Aboriginal title, or, what Indigenous peoples meant when they said “Aboriginal title” does not seem to be the same thing that Canadian judges mean when they use the phrase. Indigenous peoples, for instance, don’t seem to agree that their title can be infringed as required by Canada.

The Supreme Court’s reasoning in demarcating a roadmap to Aboriginal title perpetuated fundamental colonial constructs that are anathema to reconciliation. The judges repeated the problematic notion that aboriginal rights are sui generis – a Canadian invention to mystify Indigenous property rights and attach an “inherent limit” on Aboriginal title. And the judges continued to rely on the idea that Great Britain gained sovereignty over the west in 1846 – as they pronounce to this day – simply because Britain had made treaty with every other European power that had previously expressed interest in the area.

In court, the Gitksan and Wet’suwet’en Chiefs categorically rejected the statement of British sovereignty over their lands. Unfortunately, they had given their question over to the jurisdiction of a BC court in the first place. That is the kind of conundrum Indigenous Peoples are in: if they go to a Canadian court for legal recourse against Canada, they will find a judge who is Canadian. It’s an obvious conflict of interest which has resulted in widespread Indigenous appeals to third parties out of the state, to the Inter-American Commission on Human Rights, and to United Nations treaty bodies and Special Rapporteurs.

DISC – then and now

In 1997, the Supreme Court of Canada overturned several of McEachern’s decisions and routed his reasons so that they could never be used again.

The next day, the front page of The Vancouver Sun newspaper featured a huge picture of Edward John, Chair of the First Nations Summit, stating his expectation that the ruling would revolutionize the state’s negotiating mandate within the BC treaty process. The ruling had said, after all:

Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures. The protected uses must not be irreconcilable with the nature of the group’s attachment to that land.

Surely selling 98% of Aboriginal title land to the state, to be developed and parceled off as fee simple title, was a use “irreconcilable with the nature of the groups’ attachment to that land.” But that was about to become the blueprint for engagement under the BC Treaty Commission. The Nisga’a Final Agreement, negotiated under the Comprehensive Claims formula of 1974, was ratified in 1998 and came into law in the year 2000.

Against the First Nations Summit’s suspended disbelief, a group of Indigenous leaders formed to propose a bridge between the Gitksan/Wet’suwet’en ruling and Aboriginal rights on the ground: the Delgamuukw Implementation Steering Committee. “DISC” attempted to gain traction with the Assembly of First Nations and the federal government, to hammer out practical ways and means for Aboriginal peoples to benefit from the ruling. But the initiative was supplanted by an exploratory committee that eventually resulted in the First Nations Governance Institute.

The 1997 decision did not change the federal government’s 1974 policies concerning negotiated extinguishment, which is now referred to as “modified rights” and includes a First Nation’s indemnification of the state for “all past harms,” in the BC treaty process. Robert Nault, as Minister of Indian Affairs in 1999, stated that Canada wouldn’t do anything to alter its “flagship process,” the “made in BC” answer to treaty settlement (and renegotiation) across Canada. Ten years later, Minister of Indian Affairs Chuck Strahl stated that the BC Treaty Commission was not a rights-based approach. In 2009, three years of work by a Chiefs Task Force working with government negotiators at a Common Table reached a final impasse in attempts to bring treaty negotiating mandates up to a minimum that could be seen as equivalent to Aboriginal rights already won in Canadian courts.

Last month, the federal government announced a new sort of DISC: the Department of Indigenous Services, Canada. The Department of Indian Affairs (also known as INAC, AANDC, etc.) has been cleaved in two under the leadership of Trudeau 2, separating land claims from the administration of Aboriginal-specific (ie, underfunded) works and programs like health, education and welfare. The new DISC refers to the latter, while the iconic Canadian “Indian land question” will be split off into version 3.0 of the Comprehensive Claims Policy / BC Treaty process / post-Tsilhqot’in decision… which apparently does not have a name yet, according to government press releases, but will be managed by a new Ministry under Carolyn Bennett: Crown-Indigenous Relations and Northern Affairs.

Cases building on Delgamuukw

In Haida, 2004, the Supreme Court ruled that government agents had a duty to consult and accommodate Aboriginal peoples whenever they contemplated action, such as resource licensing, which might impact Aboriginal title – proven in court or not. The ruling relied on the definition of Aboriginal title defined in Delgamuukw.

The legal brain trust of the colonial state has diverted whatever relief that 2004 SCC ruling might have offered into dissipating channels of “consultation” and “accommodation,” through such mechanisms as Forest and Range Agreements and other revenue sharing agreements. Thus, Aboriginal peoples attempting to benefit from that legal decision have the option of signing off that their economic interests have been accommodated – to mobilize Forest Resource Management Plans, sometimes as yet unwritten – for a paltry per-capita sum. Instead of spending a decade in court, or watching business go on as usual. It’s a provincial scheme sculpted around the lowest common denominator that meets the government obligation to be seen to accommodate economic interests in Aboriginal title.

In 2007, the William case at the BC Supreme Court resulted in a preliminary ruling for a Declaration of Aboriginal title in Tsilhqot’in territory. Seven years later, that case resulted in the first ever declaration of Aboriginal title in Canada, at the Supreme Court of Canada. The case followed the method of proving Aboriginal title which was defined by the Delgamuukw case.

Jack Woodward has been legal counsel for the Tsilhqot’in since the 1980s. He commented on today’s anniversary and what might happen next:

The next step is obvious to me, but perhaps that is because I am a lawyer who thinks constantly about the remedies that are available within the legal system. With Delgamuukw and Tsilhqot’in, and many other decisions, the courts have opened their doors to Aboriginal people to use the powerful tools found in Section 35 of the Constitution – Aboriginal title, Aboriginal rights and treaty rights. These are some of the most powerful tools known to our legal system. They are there to be used. I believe that the use of those tools is as full an answer as we can ever expect to the questions of decolonization. In the 20 years following Delgamuukw, Aboriginal people have been very restrained about the use of the courts to seek the available remedies.

According to Ron George’s new report, the governments have found even better ways to get cooperation for resource extraction and development: funding elected Band Council Chiefs to attend the Hereditary Chief feasts – where national business is done; and even funding the purchase of traditional positions within the Feast Hall. The government’s licensing bureau ensures that no Hereditary Chief or his family can avail themselves of their own natural wealth on the land base, by recognizing only the authority of offices which conform with Indian Act / Band Council modes of operation. This action is, in itself, the most fundamental exercise of bad faith on the part of Canadian governments – although the examples are many and chilling – in the legacy of Delgamuukw.

Those three syllables will resonate in the annals of Canadian history forever: dell-gah-MOOQU. And what will this name call to mind? That Al McEachern got paid. That Indigenous Peoples will never stop fighting for their right to exist as a people, even when the colonizer’s government ignores its Supreme Court. That Canadian indifference to law is a matter of global significance.

In, YOU’VE GOT TO PADDLE YOUR OWN CANOE, Ron George notes the following legacy:

Although some people call the Indian Act an artificial barrier, Atna feels that barrier is very real and is manifested by these attitudes toward us when we ask questions they are unable to, or choose not to, answer. “At one traditional meeting, a chief told one of our family, ‘Well, you should be so fortunate that we allowed you back on reserve’. That was in a Wet’suwet’en traditional meeting. …the whole purpose of the court case was to address that and try to move it away…get away from that. We hang onto it. [our people] hang onto it because it’s a power base…and there’s authority that goes with it.” (Atna / Brian George)

The process may be working for other people, but that’s for them to say. … Lands and resources are being negotiated away, access to our traditional territories are diminishing through resource development, rights are taken away that are entrenched in the constitution and that are recognized in Delgamuukw-Gisdayway 1997. The rightful hereditary people who have rights and title to the land are not being consulted. Consulting with the wrong people is a fast track strategy to resource development, and a resource grab for the ‘sell-outs.’ We need to survive in the new economy and are by no means looking to stop progress, but it’s got to be done in a respectful manner so our kids and grandkids…..We have to survive. We survived thousands of years. We’re going to continue to survive. Well, we have to have a say in it. (Greg George)

What is the legacy of Delgamuukw v. The Queen? Earlier this year, a bronze statue of the late BC Chief Justice Allan McEachern, who died in 2008, was installed in the Great Hall of the Law Courts in downtown Vancouver. And suicide among the youth of Indigenous Nations occupied by Canada outstrips the national average by eight times.

References:

You’ve Got to Paddle Your Own Canoe: The effects of federal legislation on participation in, and exercising of, traditional governance while living off-reserve, by Tsaskiy (Ron George), Department of Educational Psychology and Leadership Studies, University of Victoria, December, 2017

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

Colonialism on Trial: Indigenous land rights and the Gitksan and Wet’suwet’en sovereignty case, Don Monet and Skanu’u (Ardythe Wilson), New Society Publishers, 1992

North at Trent 2015 Lecture Series with Peter Grant, youtube, by TrentFostCtr, 2015

And special thanks to Chief Na’Moks, Wet’suwet’en, and Jack Woodward for fielding a few questions about the impacts of the case.

The Best Of All Titles – Gitwangat Chiefs, 1884

11 Monday Dec 2017

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aboriginal rights, aboriginal title, Colonialism on Trial, Delgamuukw, Gitksan, Indigenous Peoples, Sovereignty

We would liken this district to an animal, and our village, which is situated in it, to its heart. Lorne Creek, which is almost at one end of it, may be likened to one of the animal’s feet.

We feel that the whitemen, by occupying this creek, are, as it were, cutting off a foot. We know that an animal may live without one foot, or even without both feet; but we also know that every such loss renders him more helpless, and we have no wish to remain inactive until we are almost or quite helpless

We have carefully abstained from molesting the whiteman during the past summer. We felt that, though we were being wronged and robbed, as we had not given you the time nor opportunity to help us, it would not be right for us to take the matter into our own hands. Now we bring the matter before you, and respectfully call upon you to prevent the inroads of any whiteman upon the land within the fore-named district.

In making this claim, we would appeal to your sense of justice and right. We would remind you that it is the duty of the Government to uphold the just claims of all peaceable and law-abiding persons such as we have proved ourselves to be. We hold these lands by the best of all titles. We have received them as the gift of the Creator to our Grandmothers and Grandfathers, and we believe that we cannot be deprived of them by anything short of direct injustice.

In conclusion, we would ask you, would it be right for our Chiefs to give licenses to members of the tribe to go to the district of Victoria to measure out, occupy, and build upon lands in that district now held by whitemen as grazing or pasture land? Would the whitemen now in possession permit it, even if we told them that, as we were going to make a more profitable use of the land, they had no right to interfere? Would the Government permit it? Would they not at once interfere and drive us out? If it would not be right for us so to act, how can it be right for the whiteman to act so to us?

—Gitwangak Chiefs, 1884

As copied from the book, Colonialism on Trial: Indigenous land rights and the Gitksan and Wet’suwet’en sovereignty case, New Society Publishers, 1992

Image: Delgamuukw as he was in 1987, Albert Tait

Xwe-Nal-Mewx Declaration, 1988

28 Saturday Jan 2017

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aboriginal title, Coast Salish, Declaration, Sovereignty, Xwe Nal Mewx

Also called, Coast Salish Declaration

Begins:

“We know the Creator put us here. We know our Creator gave us laws that govern all our relationships to live in harmony with nature and mankind; defined our rights and responsibilities.

“We have the right to govern ourselves and the right to self-determination. Our rights and responsibilities cannot be altered or taken away by any other nation.

“We have our spiritual beliefs, our languages, our culture, and a place on Mother Earth which provides us with all our needs.

“We have maintained our freedom since time immemorial. …We declare and affirm to the people that… the Xwe-Nal-Mewx have held and till hold title to all lands, waters and resources within our traditional territories. ….”

Full text: xwe-nal-mewx-declaration-coast-salish

Declaration of the Tahltan Tribe, 1910

07 Wednesday Dec 2016

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aboriginal rights, aboriginal title, Land claims, Sovereignty

We, the undersigned members of the Tahltan tribe, speaking for ourselves, and our entire tribe, hereby make known to all whom it may concern, that we have heard of the Indian Rights movement among the Indian tribes of the Coast, and of the southern interior of B.C.. Also we have read the Declaration made by the chiefs of the southern interior tribes at Spences Bridge on the 16th July last, and we hereby declare our complete agreement with the demands of same, and with the position taken by the said chiefs, and their people on all the questions stated in the said Declaration, and we furthermore make known that it is our desire and intention to join with them in the fight for our mutual rights, and that we will assist in the furtherance of this object in every way we can, until such time as all these matters of moment to us are finally settled. We further declare as follows:—

Firstly—We claim the sovereign right to all the country of our tribe—this country of ours which we have held intact from the encroachments of other tribes, from time immemorial, at the cost of our own blood. We have done this because our lives depended on our country. We have never treated with them, nor given them any such title. (We have only very lately learned the B.C. government makes this claim, and that it has for long considered as its property all the territories of the Indian tribes in B.C.)

Secondly--We desire that a part of our country, consisting of one or more large areas (to be erected by us),be retained by us for our own use, said lands and all thereon to be acknowledged by the government as our absolute property. The rest of our tribal land we are willing to relinquish to the B.C. government for adequate compensation.

Thirdly—We wish it known that a small portion of our lands at the mouth of the Tahltan river, was set apart a few years ago by Mr. Vowell as an Indian reservation. These few acres are the only reservation made for our tribe. We may state we never applied for the reservation of this piece of land, and we had no knowledge why the government set it apart for us, nor do we know exactly yet.

Fourthly–-We desire that all questions regarding our lands, hunting, fishing, etc., and every matter concerning our welfare, be settled by treaty between us and the Dominion and B.C. governments.

Fifthly—We are of the opinion it will be better for ourselves, also better for the governments and all concerned, if these treaties are made with us at a very early date, so all friction, and misunderstanding between us and the whites may be avoided, for we hear lately much talk of white settlement in the region, and the building of railways, etc., in the near future.

Signed at Telegraph Creek, B.C., this eighteenth day of October, nineteen hundred and ten, by

Nanok, Chief of the Tahltans

Nastulta, alias Little Jackson

George Assadza, Kenetl, alias Big Jackson

and eighty other members of the tribe

The West Wasn't Won

~ Outlive the colonial world.

Tag Archives: aboriginal title

Reconciliation means Municipalization

Enforcement of Reconciliation

Reconciliation as Subtergfuge

The “Inalienable Aboriginal Title” and the “Crown’s Fiduciary Duty”

Sentencing child abusers: where’s the Director of Services?

The Timeline

“I guess you had more rights than we thought”

Delgamuukw v. The Queen

The Best Of All Titles – Gitwangat Chiefs, 1884

Xwe-Nal-Mewx Declaration, 1988

Declaration of the Tahltan Tribe, 1910