Tag Archives: Comprehensive Claims Policy

The Cowichan decision in five points

30 Thursday Oct 2025

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Concerning, how does a declaration of Aboriginal title affect the non-Native people now living in the ancestral village of Tl’uqtinus, where Cowichan title has been judicially declared?

Tl’uqtinus – tah-look-TEEN-oosh (*an approximate anglicism) – is a 1,846-acre area which overlaps the City of Richmond, lying along the Fraser River.

      On August 7 of this year, the Supreme Court of British Columbia gave a ruling on the Cowichan Tribes’ claim to Aboriginal title to that area. This case is now the longest-ever Aboriginal title case, running over 500 days in trial.

      The judge made a declaration of Aboriginal title to most of the area, which is a seasonal Cowichan fishing village. Madam Justice Young decided that, “The Crown grants of fee simple interest in the Cowichan Title Lands, and the Crown vesting of the soil and freehold interest in the Richmond Tl’uqtinus Lands (Highways) in the Cowichan Title Lands, unjustifiably infringe the Cowichan Nation Aboriginal title to these lands.” She concluded that most of the current land titles in the area are “defective.”

Since then, panic has gripped the province of British Columbia – just as it has after every successful Aboriginal rights case since the first one in 1964. The Province of BC, Canada, and the City of Richmond are appealing the ruling instead of entering negotiations with the Cowichan Tribes.

      The judge suspended the effect of her declaration for eighteen months, to provide time for transition, but all levels of settler government have made it clear they intend to fight cooperation with Cowichan interests and title every step of the way – as they have after every declaratory recognition of Aboriginal land rights since 1875.

The following analysis is based on an extensive survey of Aboriginal rights litigation arising west of the Rocky Mountains; an extensive survey of the circumstances leading up to such litigation and the clear public statements made by Indigenous plaintiffs, as well as the statements of claim; an extensive inventory of provincial behaviours since colonization; and a review of non-Native reaction to the Cowichan title case.

1. Aboriginal title is not the same as fee simple title

What Canada has all along been calling “Aboriginal title” – a sui generis and abnormal concept – are actually national titles, flowing from centuries and millennia of law and governance.

      “Aboriginal title” is a colonial construct used by the crown to obscure Indigenous Peoples’ land rights and subject them to the discretion of the crown. The Cowichan, among others, have now outlived that construct. They, like the Tsilhqot’in just before them, have forced the court to recognize the practical aspect of Aboriginal title. The court, in Cowichan, has ordered that the government of British Columbia must negotiate a resolution to the title conflict. (See the Summary of Declarations below)

      In case after case, for fifty years, crown courts have reduced the meaning of their own invention, “Aboriginal title lands,” to mean nothing more than the right to use and occupy “small spots,” or “postage stamp title” – around fishing rocks, hunting blinds, and “fenced village sites” – as if these were private holdings on crown land.

         Settlers have been left not understanding what Indigenous Peoples’ land titles really are, while the courts have attempted to define them out of existence.

2. Co-existence of Aboriginal title and fee-simple ownership

Because what “Aboriginal title” actually refers to is those national titles, and the underlying title belonging to that Indigenous Nation or People, the underlying Indigenous land title co-exists with individual property ownership in almost exactly the same way that fee simple title holders relate to what they thought was underlying crown title.

      There have always been individual land titles throughout Indigenous Nations. The nations are made up of Clan and House Lands, and titles which must be upheld in regular actions of governance and social obligation. Not unlike the taxes and bylaws of today’s settler regime.

Recently, many people have piped up to the tune that Aboriginal title, as a right to the land, cannot co-exist with fee-simple property ownership. This represents a level of ignorance that has moved into the hysterically incompetent. The same people who loudly make that statement are quite happily paying their taxes to BC and Canada, in full recognition of the idea that their fee-simple ownership co-exists with underlying crown title. They also fully expect to go along with crown appropriation schemes, maybe for a hydro right-of-way, or for a city works infrastructure project; to receive their non-negotiable compensation for that part of their property that was used; and to go on with their land-holding.

3. Displacement

Native plaintiffs have never set out to displace individual property owners in title litigation.

     Ever since the Nisga’a title case in 1973, every court action has specifically excluded claims to ownership of the fee-simple title of individual homes and properties. This includes the Cowichan claim.

Indigenous Peoples demand recognition of their underlying title.

       In this way, Native communities have protected settlers from their own colonial government’s theft, bad faith and lies.

     In many instances, First Nations have attempted to negotiate with the crown for the buy-out and return of lands which the crown sold to settlers or developers. These negotiations were not litigation.

4. Cowichan fishing rights

Tl’uqtinus is a fishing village. A thousand Cowichan people would go there – well into the 20th century – to harvest salmon returning up the Fraser River. They navigated the Salish Sea from their main territory on “Vancouver Island” with enough people and provisions to live for the season. Their big houses and a few residents stayed year-round on the lower Fraser at Tl’uqtinus.

       As of this decision, the Cowichan are one of only five Indigenous Peoples west of the Rocky Mountains to have a judicial declaration of their right to fish for food. This fact is provided to assist non-Native readers understand the extent of colonial repression of economic, social and cultural rights which they must now correct along with land title.

      The other peoples with recognized Aboriginal fishing rights – not just the very recent legislative “accommodation” of Aboriginal rights without explicit recognition and protection, or the modern-day treaty provisions by agreement – are the Musqueam (Sparrow 1990); the Heiltsuk (Gladstone, 1996); the Saik’uz and Stellat’en (Thomas, 2024); the Nuu-chah-nulth (Nuu-chah-nulth, 2021); and the Douglas Treaty nations (1850-54).

5. “Aboriginal title” is a politically-motivated colonial construct

What Madame Justice Young did not point out in her reasons for judgement in this case, is that “Aboriginal rights” is an invention of Imperial and Colonial British courts, along with Britain’s Privy Council and Foreign Secretary, to set aside the land rights of Original Inhabitants invaded and annexed by the British Empire.

There is currently no legal reality to Aboriginal title in Canada: it remains undefined as sui generis: Aboriginal title land can’t be (won’t be) registered by provincial Land Titles offices; the government says it has no market value because it can only be “surrendered” to the crown by agreement.

This archaic and internationally repugnant discrimination has been the subject of many UN treaty bodies’ observations concerning the situation of Indigenous Peoples in Canada. It is also the reason that the judge in Cowichan can do nothing more than urge the government to negotiate the surrender of the declared Aboriginal title lands, in exchange for rights by agreement. That is Canada’s policy. There is no mechanism to mobilize or actuate Aboriginal title land.

One participant at the Richmond City Hall meeting described the situation to a reporter, “If this brick in the wall comes loose, the whole thing’s going to come down.” That is the perspective of a non-Native person who knows absolutely nothing about the Cowichan Tribes.

A few more observations

The Richmond meeting, October 28

When Richmond’s Mayor Brodie called a little meeting for last Tuesday night, which was, in his words, “intended to influence the court,” the Cowichan representatives naturally did not attend. The Indigenous experience in the court of public opinion has been dismal: the 2002 BC Treaty Referendum; the 1992 Charlottetown Accord; etc.

      Unfortunately, while the province of BC has wasted no time appealing the decision in toto, and loudly repeated its historical refusal to recognize Indigenous Peoples’ equality to other Peoples, the Cowichan Tribes are not going to make a lot of public statements to reassure the Richmond citizens (however much they undoubtedly would like to), when those political statements could then be interpreted by the appeal court to undermine their legal position.

      Settlers might be interested to take their own initiative, to learn about the Cowichan Tribes, and to see if their racism survives education.

Life on Aboriginal title lands

Newcomers to BC have lived with the practical reality of national Indigenous titles underlying their fee-simple holdings since at least 1985, in the Sechelt Self-Government Agreement. Well, Indigenous titles have laid under the settler land tenure system all this time; the title-holders have just been very patient in waiting for the newcomers to gain consciousness in relation to their surroundings.

      More recently, the 2014 Supreme Court of Canada Tsilhqot’in decision – for the very first time – made a declaration of Aboriginal title to marked, mapped areas on the ground. Those areas also include lands which were sold to settlers by the crown that didn’t own them. No one has been evicted (although one guy who dredged a salmon spawning stream to improve irrigation will surely be reprimanded). In the Haida Rising Tides Agreement, 2024, settlers seem to have survived provincial recognition of Haida title to Haida Gwaii. In 2002 the Haida filed a statement of claim to their entire territory with the BC Supreme Court, but, such was its indefatigable certainty, BC was compelled to provide a series of stop-gap agreements since then, Rising Tides being the most recent, which have stopped that litigation from proceeding.

      Other jurisdictions where non-Native property owners have interests which are actively recognized, respected, and served by Indigenous Nations are in Tsawwassen, since the 2007 treaty; in Powell River, since the 2007 Sliammon treaty; in Nisga’a, since the 2000 Final Agreement; in Westbank, where people bought 99-year lease holds following the Westbank Self Government agreement; and in Kamloops, following an adjustment of the Indian Act to mobilize housing development on-reserve in the urban center.  

The difference here is that “Aboriginal title” is an “undefined Aboriginal right.” Extinguishing undefined Aboriginal rights is the lead purpose of government Agreements with First Nations today, whether it be under the BC Treaty Commission, or in the new Sectoral Agreement Strategy where the same suite of treaty rights are determined one at a time by stand-alone deals like the “Education Jurisdiction Agreements,” or, for Children and Families, under the federal enabling legislation in Bill C-92; or, for Lands, under the First Nations Lands Management Act; or in Health, Resources, or Taxation authorities.

The written decision in Cowichan

The decision in Cowichan Tribes v. Canada makes excellent reading. The judge has included many selections from the Quw’utsun Elders’ testimony at trial. Their way of life is truly awe inspiring, and the many descriptions of Quw’utsun ways of governance are enlightening. Justice Young has also included much of the pivotal evidence concerning the history of Tl’uqtinus, such as descriptions of the village provided by Captains of the British Navy, maps of the area made by colonists and showing the village site, et cetera.

      At the same time, Young has included all the parties’ positions on the issue, and the real extent of institutionalized settler denial and racism is there for all the world to read, in the Province, Canada’s, and the City of Richmond’s outrageous statements.

Title Insurance

      The State of Hawaii has adapted to a similar stolen-and-settled land situation by enabling “Title Insurance.” In the same way that homeowners buy fire or flood insurance, they also buy title insurance specific to mitigating the inevitable recognition of underlying Indigenous title to their property.

      This development followed a successful Indigenous Hawaiian title case against the state in about 2004.

Pleading ignorance

Pleading ignorance is very rarely a reasonable explanation for illegal behaviour with ongoing harms. What plagues the people of Richmond today is not Aboriginal title, but racist denial and the courts’, politicians’, and media’s refusal to do anything more than insult the title holders.

      The Supreme Court of Canada first swerved to avoid even hearing the title argument in 1965, in the Snuneymuxw hunting case, White and Bob. The courts have protected settler ignorance for as long as possible, but perhaps the Cowichan decision is a watershed moment – following many precipitous moments.

      The Tla-o-quiaht won an injunction against logging Meares Island in 1985 on the basis of their Aboriginal rights. The Nisga’a started negotiating their land claim in 1976 on the basis of their 1973 Calder ruling. The BC Treaty Commission was formed in 1992 to settle land claims. By 1981, Native claims were being pursued by almost every Indigenous tribe “in” BC, under the Office of Native Claims Commission, 1974. Canada’s policy on Native Claims has been so unfair that few agreements have been reached, west of the Rockies.

      No one can claim to be surprised that Indigenous Peoples have land rights.

Helpful quotes from previous rulings:

“The province has been violating Aboriginal title in an unconstitutional, and therefore illegal, fashion ever since it joined confederation”

  • Justice Vickers, BC Supreme Court, Tsilhqot’in 2007

“Aboriginal title and rights have never been extinguished by any action taken by the province of British Columbia.”

  • BC Court of Appeal, Delgamuukw, 2003

“The domestic remedy has been exhausted.”

  • Inter-American Court of Human Rights, Washington DC, Hunquminum Treaty Group v. BC 2009 (Note – the Hunquminum Treaty Group is a Cowichan organization)

EXCERPTS from the decision in Cowichan

Cowichan Tribes v. Canada (Attorney General), BC Supreme Court, August 7, 2025

The Full Ruling:

Cowichan v Canada BCSC August 7 2025Download

From the Introduction to the case, by Justice Young:

•         Between 1871–1914, Crown grants of fee simple interest were issued over the whole of the Claim Area, including the Cowichan Title Lands.

      The first purchase of Cowichan Title Lands was made by Richard Moody who was the first Chief Commissioner of Lands and Works for the Colony of British Columbia and was tasked with ensuring that Indian reserves were created at sites of Indian settlements. Because occupied Indian settlements were appropriated, and could not be sold, most of the Crown grants in the Cowichan Title Lands were made without statutory authority.

•         British Columbia was admitted into Canada on July 20, 1871 under the BC Terms of Union. The effect of Article 13 of the BC Terms of Union was to extend appropriation of Indian settlement lands post‑Confederation, limiting the Province’s ability to sell the land without first dealing with the Cowichan’s interest. As a result, the post-Confederation Crown grants in the Cowichan Title Lands were made without constitutional authority because they were made under legislation that was constitutionally limited by Article 13.

•         The Crown grants of fee simple interest deprived the Cowichan of their village lands, severely impeded their ability to fish the south arm of the Fraser River, and are an unjustified infringement of their Aboriginal title. Subsequent dispositions of the Cowichan’s land, including BC’s vesting of Richmond with fee simple interests and the soil and freehold of highways, are also unjustified infringements. Additionally, some of Canada and the VFPA’s activities on the Cowichan Title Lands unjustifiably infringe the Cowichan’s Aboriginal title.

•         The Province has no jurisdiction to extinguish Aboriginal title. The Crown grants of fee simple interest did not displace or extinguish the Cowichan’s Aboriginal title.

*emphasis added

Summary of the Cowichan Ruling, Justice Young

D.       SUMMARY OF THE DECLARATIONS

[3724]  In summary, I make the following declarations:

•         The descendants of the Cowichan Nation, including the Cowichan Tribes, Stz’uminus, Penelakut and Halalt, have Aboriginal title to a portion of the Lands of Tl’uqtinus, the Cowichan Title Lands, within the meaning of s. 35(1) of the Constitution Act, 1982.

•         The Crown grants of fee simple interest in the Cowichan Title Lands, and the Crown vesting of the soil and freehold interest in the Richmond Tl’uqtinus Lands (Highways) in the Cowichan Title Lands, unjustifiably infringe the Cowichan Nation Aboriginal title to these lands.

•         Canada’s fee simple titles and interests in Lot 1 in Sections 27 and 22 (except those in the YVR Fuel Project lands), Lot 2 in Section 23, and Lot 9 in Sections 23 and 26, and Richmond’s fee simple titles and interests in Lot E in Sections 23 and 26 and Lot K in Section 27, are defective and invalid.

•         With respect to the Cowichan Title Lands, Canada owes a duty to the descendants of the Cowichan Nation, including the Cowichan Tribes, Stz’uminus, Penelakut, and Halalt, to negotiate in good faith reconciliation of Canada’s fee simple interests in the YVR Fuel Project lands with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown.

•         With respect to the Cowichan Title Lands, British Columbia owes a duty to the descendants of the Cowichan Nation, including the Cowichan Tribes, Stz’uminus, Penelakut, and Halalt, to negotiate in good faith reconciliation of the Crown granted fee simple interests held by third parties and the Crown vesting of the soil and freehold interest to Richmond with Cowichan Aboriginal title, in a manner consistent with the honour of the Crown.

•         The descendants of the Cowichan Nation, including the Cowichan Tribes, Stz’uminus, Penelakut and Halalt, have an Aboriginal right to fish the south (i.e., main) arm of the Fraser River for food purposes within the meaning of s. 35(1) of the Constitution Act, 1982.

E.       CONCLUSION

[3725]  Most of the Cowichan’s Aboriginal title lands at Tl’uqtinus were granted away over 150 years ago. Since that time, the Cowichan have pursued the return of their land, first through the JIRC process, causing Gilbert Sproat to write to the Lieutenant Governor in 1878: “The ancient fishing ground on the Lower Fraser of the Cowichan nation … has been sold and now belongs to a white non-resident. What can be done in such a matter?” Although it has taken a very long time, the Cowichan have now established their Aboriginal title to that land. These declarations will assist in restoring the Cowichan to their stl’ulnup at Tl’uqtinus and facilitating the revitalization of their historical practice of fishing for food on the Fraser River and teaching their children their traditional ways. Nevertheless, much remains to be resolved through negotiation and reconciliation between the Crown and the Cowichan.

[3726]  Additionally, the determinations in this case will impact the historic relationships between the Cowichan, Musqueam and TFN, and relations moving forward. The fact is all the parties have continued interests, rights and obligations around the south arm of the Fraser River and limited resources need to be shared and preserved.

[3727]  Much has been written about reconciliation. The principles of reconciliation defined by the Truth and Reconciliation Commission of Canada include the process of healing relationships that required public truth sharing, apology and commemoration that acknowledges and redresses past harms. Litigation is the antithesis of a healing environment as the adversarial system pits parties, and sometimes kin, against one another. Yet at times it is necessary in order to resolve impasses such as those that arose here, halting negotiations. Now that this multi‑year journey has concluded, it is my sincere hope that the parties have the answers they need to return to negotiations and reconcile the outstanding issues.

F.       COSTS

[3728]  The plaintiffs have been successful in this trial and are entitled to their costs. If the parties cannot agree on the scale or apportionment of costs they may apply to the Court for a hearing on the matter.

                 “B. M. Young, J.”                  

The Honourable Madam Justice Young

Archive Quarterly ~ Spring 2025

24 Saturday May 2025

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AQ Spring Edition Features:

Rejection of Funds, April 1975

At the 7th Annual General Assembly of the Union of BC Indian Chiefs, all Indian Bands agreed to refuse federal transfer payments and program funding – rejecting government control.

The BC Association of Non-Status Indians joined them, “amalgamating the on- and off-reserve people and changing the political movement once and for all. The solution was the same for both of us: a just settlement of the Indian land question, and respect for our own governance.”

With quotes from media at the time, and comments from published interviews with Hereditary Kwagiulth Chief Hemaas, Bill Wilson and Grand Chief Saul Terry, St’at’imc; and Hereditary Wet’suwet’en Chief Ron George, unpublished 2018 interview.

Documentary resource: Nesika ~ The Voice of BC Indians, Volume 3, Issue 13, May 1975. Reporting on the Rejection of Funds and Militant May.

Nesika May 1975 rejection of fundsDownload

Bill C-31, 1985, and the first Reinstatement of Non-Status Indians

The federal objective “to keep lands reserved for Indians under the power of male Indians,” was one of the primary reasons for the first legislation respecting Indigenous Peoples, in 1869.

In order to achieve this, Canada defined who was, and who was not, a “Status Indian.” This Status, providing the right to live on-reserve and be a member of an Indian Band or First Nation, and pass Status to children, was increasingly denied to Native women.

With 40 legal actions against the government’s Registrar for wrongful misappropriation of entitlement, and a 1982 recommendation of the United Nations ICESCR treaty body, Canada removed some of the sexist restrictions to coincide with their new constitution’s Charter of Rights and Freedoms.

Documentary Resources: Bill C-31

Bill C-31 – Act to Amend Indian Act June 12 1985Download

First Ministers Conference on the Constitution, April 2, 1985

The Constitution Act, 1982, was passed for Canada with a British condition: the rights of Aboriginal Peoples, in Section 35, must be elaborated.

A formula to amend the Constitution was included in Section 37 of the Act: the country must hold First Ministers Conferences immediately, and specifically protect key aspects of the “existing rights” of Aboriginal Peoples in an amendment to the Constitution.

In 1985, Canada’s Prime Minister Brian Mulroney chaired the conference. He made an elaborate speech which, 40 years later, has still not been realized: “As a Canadian and as Prime Minister, I fully recognize and agree with the emphasis that the Aboriginal Peoples place on having their special rights inserted into the highest law of the land, protected–as we all want ours–from arbitrary legislative action.”

His statements were completely undermined by a report leaked ten days later.

Documentary Resources:

First Ministers Conference, Ottawa, April 2, 1985. Morning Session. Verbatim Transcript.

Including Statements of: Prime Minister Brian Mulroney, DAVID AHENAKEW (Chief, Assembly of First Nations), KEVIN DANIELS (Metis National Council), SAM SINCLAIR (President, Metis Association of Alberta), Louis (Smokey) BRUYERE (President, Native Council of Canada), MR. JOHN AMAGOALIK (Inuit Committee on National Issues)

1985 First Ministers Conference on Aboriginal Constitutional Matters – Indian self-government .April 2. transcript morning sessionDownload

First Ministers Conference, Ottawa, April 2, 1985. Afternoon Session. Verbatim Transcript.

Including Statements of: Prime Minister Brian Mulroney, GEORGE WATTS (Assembly of First Nations), HAROLD CARDINAL (Prairie Treaty Nations Alliance), CHIEF SOLOMON SANDERSON (Assembly of First Nations), HARRY W. DANIELS (Vice-President, Native Council of Canada), ZEBEEDEE NUNGAK (Inuit Committee on National Issues), M. SIOUI (chef de la Nation huronne Wondat de la Province de Quebec), JOHN CROSBIE (Canada), JIM SINCLAIR (Saskatchewan), ROLAND PENNER (Attorney-General, Manitoba), GEORGES ERASMUS (Northern Vice-Chief, Yukon and Northwest Territories, Assembly of First Nations), RICHARD HATFIELD (New Brunswick), JOHN AMAGOALIK (Inuit Committee on National Issues), BRIAN R.D. SMITH (Attorney General, British Columbia), JOE COURTEPATTE (President, Alberta Federation of Metis Settlement Associations, Metis National Council), FRED HOUSE (President, Louis Riel Metis Association, British Columbia), PETER LOUGHEED (Alberta), WILLIAM BENNETT (British Columbia)

1985 First Ministers Conference on Aboriginal Constitutional Matters – Indian self-government – April 2.afternoon sessionDownload

“The Buffalo Jump of the 1980s,” the draft Nielsen Report to Cabinet: April 12, 1985

A draft memorandum for Cabinet, produced by the Deputy Prime Minister, Erik Nielsen, was leaked to the press at the same time the federal government was making overtures to Aboriginal self-government in the First Ministers Conference and reinstating Non-Status Indians in Bill C-31.

The Nielsen Task Force Report draft for Cabinet was titled, “The Buffalo Jump of the 1980s.”

The Report recommended slashing financial support for Indigenous political organizations.

Anticipating tens of thousands of people regaining Indian Status with changes to the Indian Act under Bill C-31, the government’s “Buffalo Jump” plan also hinged on devolving fiduciary responsibilities for Native health care, education, and economic development to the Provinces.

At the same time, the near-final Sechelt Self-Government Agreement made an example of an Indian Band which agreed to extinguish their title and rights, accepting instead a municipal role with small lands, powers of taxation, and the ability to engage in business – which is not possible under the Indian Act.

For First Nations faced with the failing First Ministers Conference – where Premiers showed no intention to support Aboriginal self-government in the Constitution; and the impending cut to federal funding; the direction of the intended “Buffalo Jump” stampede became clear.

Documentary Resources:

“Buffalo Jump of the 1980s” – Nielsen Report – “Funding cuts drive FNs into compromising programs,” Ottawa Citizen, April 19, 1985; AFN press release, May 8, 1985.

“Buffalo Jump of the 1980s” – Nielsen Report – Funding cuts drive FNs into compromising programsDownload

The Nisga’a Final Agreement: A 25th Anniversary Retrospective

Excerpts from a negotiation that exceeded a century:

“You saw us laughing yesterday because you opened the book and told us the land was the Queen’s and not the Indians’. That is what we laughed at. No one ever does that, claiming property that belongs to other people. We nearly fainted when we heard that this land was claimed by the Queen. The land is like the money in our pockets, no one has a right to claim it.” Chief Am-Clamman of Kit-wil-luk shilts, 1887.

With statements from 1884-1889 collected by Reverends of the Methodist Missions,

Excerpts from the Northwest Coast Commission at Port Simpson and the Nass, 1887,

The 1913 petition of the Nisga’a to the British King,

The Allied Tribes statement, formed in alignment with the Nisga’a position,

The role of the White and Bob hunting case, Nanaimo, in the Calder title case,

The Calder title case, and federal land Claims policy announced in 1973, in response to it,

Synopses of events across BC and Canada from 1912 to 1997, in court and on the ground, as they affected the Nisga’a case,

Debates of the BC politicians as they explained the Nisga’a Final Agreement,

Excerpts from the 2000 treaty,

And the court cases – by BC politicians and Nisga’a people – that followed it.

Documentary Resources:

Letter from the Methodist Missionary Society to the Superintendent-General of Indian Affairs respecting British Columbia troubles, May 1889.

Including: Protest of Port Simpson Chiefs to Mr. O’Reilly; Statement of Skidegate Chiefs;  Affidavits of: John Ryan, Chief Paul Legaic, Louis Gosnell, Chief Alfred Doudoward, Charles Abbott, Chief Herbert Wallace, Richard Wilson, Chief David Mackay, Chief Arthur Calder, Charles Russ, George A. Gibson, Chief Scaban, Chief Ness-Pash, Chief Clay-Tsah, Chief Tat-Ca-Kaks, Job Calder; more.

Letter from Methodist Missionaries to Superintendent General 1888. With statements of Tsimpshean and Haida ChiefsDownload

Papers Relating To The Commission Appointed to Enquire into the Condition of the Indians of The North-West Coast, 1888, Government Printer at Victoria.

Including: Testimony of Chiefs George Kinsada, Adam Kishni, Moses, Albert Shakes, Samuel Seymour, Frederick Allen, Arthur Gurney, Nease Youse, Tallahaat, Sabassah, Hawillah, Job Calder (or Nouse), husband of Victoria, chiefess of the Naas Indians, Mountain, Matthew Naas, Charles Russ, Neis Puck, Kledach, David Mackay, Arthur Calder (son of Chieftainess Victoria), Hawillah, Am-Clamman, Paul Kledach (son of Chief Kledach), Paul Legaic, Richard Wilson, Alfred Doudoward. Charles Abbott, Gemmuc, Donald Bruce, Matthew Aucland, A. Leighton, and petitions and Letters;

And Statement of BC Premier William Smythe, 1887; Reserve Commissioner O’Reilly, Report and memos of Commissioners; etc.

1888 North coast commission into the condition of the Indians. Tsimpshean.Nishga Commissioners Planta and Cornwall for Dominion of Canada and Province of BCDownload

“Nisga’a Treaty – Final Agreement Act – Bill C-51 – Committee Stage”– notes and quotes from the Provincial Government’s debate televised on CPAC and recorded on the Government’s website, Hansard. January 18-20 1999.

Nisgaa debate CPAC Hansard BC Leg. 1998-99Download

Closing Statement: Gitxsan and Wet’suwet’en Chiefs, 1990

At the end of 370 days of testimony, and at the end of the trial for title, Hereditary Chiefs made a statement to close the proceedings.

 “Three years have passed since we made our opening statements to this court; at that time you did not know who Delgamuukw and Gisdaywa were. We, the Gitksan and Wet’suwet’en, must be compensated for loss of the Land’s present integrity and for the loss of economic rents. We ask that the court not only acknowledge our ownership and jurisdiction over the Land, but to restore it to a form adequate for Nature to heal in terms of restoration.”

AQ Spring 2025:

56 pages

8.5×11

ISBN: 978-1-7387902-9-6

Visit Archive Quarterly ~ journal of the west wasn’t won archive project, at Electromagnetic Print: books that resonate.

Reconciliation as Subtergfuge

27 Wednesday Sep 2023

Posted by in Commentary, editorial, Reconciliation

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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 20th 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 19th. 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.

“I guess you had more rights than we thought”

21 Wednesday Jun 2023

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

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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

Living Treaties, Lasting Agreements. 1985

11 Tuesday Jul 2017

Posted by in Comprehensive Claims - Policy and Protest

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This book, produced by the federal government, is now very hard to find.

It was written after the 1982 Canadian Constitution Act had been formalized, but before the failure of the First Ministers Conferences to implement a meaningful “Section 35” – where Aboriginal and treaty rights are recognized and affirmed. This is possibly the single most candid publication the Canadian government has produced concerning Indigenous rights, and it admits a lot of Indigenous rights which have disappeared from the federal discourse since the failure of Canada to legislate implementation of Section 35.

Comprehensive Claims – policy & protest

Indian Claims Commission 1963 – Liberal election promise broken

29 Monday Dec 2014

Posted by in Government Commissions

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On August 15th, 1963, the then Minister of Citizenship and Immigration and Superintendent General of Indian Affairs, The Honourable Guy Favreau had this to say to the Third Annual Conference of the National Indian Advisory Council of Canada, in Winnipeg, in respect to the establishment of an Indian Claims Commission.

“I mentioned earlier that lack of confidence on the part of the Indians remains one of the serious problems affecting Indian administration.

In analyzing the deep causes for this distrust it soon became apparent that a rankling feeling of injustice among the Indians at the lack of action with regard to the adjudication and settlement of their long outstanding claims was one of the roots of this evil.

This understandable sense of grievance among the Indians had made it extremely difficult over the years to obtain the fruitful co-operation between them and the government, which is so necessary in every field of endeavor that may be undertaken to improve their condition.

Two parliamentary committees on the administration of Indian Affairs had recognized this fact and recommended that action be taken by the government to assess and settle all Indian claims and grievances in a just and equitable manner.

The Liberal party, before the last election, had included in its program the appointment of an independent body, with broad terms of reference, to review all matters pertaining to Indian Claims.

In its desire to see justice done, the Government wish that every legitimate Indian claim be given a fair hearing, without undue formality, and settlement made where justified.

Without prejudging the matter, as I am inclined to believe that no claim submitted to the commission should be open to defeat upon narrow or technical grounds.

It is proposed that the commission be authorized to hear all claims referred to it by the government, as well as such claims as may be made before it by Indian bands or other identifiable groups of Indians.”

* Note: this Commission was never struck up, never populated, never happened. Instead,  one Dr. Hawthorn and his research team at the University of British Columbia, commissioned by the Department of Citizenship and Immigration to prepare an in-depth study of Indian administration in British Columbia, released their report in 1964 and 1965 and advocated assimilation of Indians by integration – as well as, later, the concept of “citizens plus.” In 1968, Pierre Trudeau became leader of the federal government and in 1969 he introduced the “White Paper Policy,” or “Statement of the Government of Canada on Indian Policy.” That policy was simply to dissolve the Indian Act and erase any reference to Indian rights in Canada’s constitutional documents. This policy document was prevented from taking full effect by extreme opposition by every Indian organization from coast to coast to coast, and a few years later, the federal government instituted the Comprehensive Claims Policy instead: a process by which Indian communities agree to their own extinguishment in exchange for money. That policy is still in effect and underlines all negotiations between Canada and Indigenous Peoples, including the BC treaty process.

Indian Record fp October 1963 Favreau ICC

Observations on the promised Indian Claims Commission, 1963, on the election of the Federal Liberal Party:

B.C. Indian Lands Question

  1. The North American Indian Brotherhood (NAIB) carried out a survey of the Interior Indians by holding meetings at the various Interior towns as to what the Indians wished to pursue at the Senate and Parliamentary Committee hearings on Indian Affairs in the late 1950’s.
  2. It was unanimously agreed that the BC Indian Land question be pursued. At that time the Indian Land question had been completely abandoned and it was through the NAIB’s efforts after consultation with the Indians that it was revived.
  3. Through persistence by the NAIB the Liberal party of Canada issued a pamphlet (before their election as a party governing Canada) stating that in 1963 the Liberals promised as follows:                                                                                       a) Liberal policy now is to appoint as soon as possible an Indian Claims Commission, an independent, unbiased unprejudiced body with broad terms of reference, to review all matters pertaining to this issue.                                                                   b)With the objective of achieving a fair and just settlement of all outstanding claims, it is Liberal policy that the Commission will include qualified authorities on British Constitutional law as it affects aboriginal hereditary and usufructory (sic) rights.   c) To assure the objectivity which Indians of Canada have the right to expect after years of procrastination, Commissioners may be appointed from other parts of the Commonwealth such as New Zealand, where achievements in this field are regarded as outstanding. It is Liberal policy that the Commission will be unbiased and independent.
  4. Appointment of the Indian Claims Commission, as described, is based on the fundamental Liberal policy that Canada’s Native Indians must now achieve full equality without loss of aboriginal, hereditary and usufructory rights. Canada, at this time in our history and today’s war of ideologies, must erase the blot of second and third-class citizenship.
  5. In 1963 when the Liberals were elected the NAIB sent delegates to the United Nations and to Parliament in Ottawa recommending the Commission be instituted as follows:

The delegates recommend a three-man commission comprised of the following individuals:                                                                                                              a) A Commission Chairman, selected by the Secretary General of the United Nations, or an appropriate body of the United Nations, such as the International Court of Justice. b) An international senior anthropologist, who understands the Indian manner of submitting evidence by having direct contact with Indian affairs and through working with natives personally.                                                                                             c) A Canadian legal authority trained in International law and British Constitutional Law.

  1. The reason for an International Commission in that the commissioners would be trained in International Law is as follows:
  2. The Commissioners would be trained along International lines rather than Canadian and would bring into their thinking International cases such as the Ghana and Nigerian decisions which gave those native people title to their lands as hereditary nations.
  3. The Indian tribes in the United States and other countries have been treated in law as nations and Canadian Indians’ position in International Law should be the same.
  4. If you go hat in hand to government asking for a negotiation as to settlement, Canada, if it does agree to settle, will say we offer you so much and that is it. There will be a position wherein Canada makes the decision and the Indians will have to take it or leave it.
  5. If a Tribunal with International authorities decide, then world attention will be directed toward the tribunal and Canada will have to make an honourable settlement.
  6. Canada has already agreed that the Indians have title to British Columbia, otherwise the Indians would not be receiving $100,000 per year by way of the BC Special in lieu of Treaty monies.
  7. The difference is that at least theoretically the Indians in other parts of Canada agreed to their treaty money by having treaties signed by the Indians.
  8. But BC Indians never signed treaties, except for small areas regarding the Indian Land question, although Canada sees fit to pay them $100,000 a year for title.
  9. So that Canada admits the Indians have title to BC by paying them $100,000 per year which the Indians never agreed was enough, as they may have done by signing treaties in other parts of Canada.
  10. It is therefore essential that the Liberals be held to their promise of 1963 that an independent, unbiased, unprejudiced body with broad terms of reference be appointed to review all matters pertaining to the BC Indian Land question.
  11. This can only be done by appointment of persons trained in international affairs from outside Canada.
  12. The Liberal promise of 1963 was adopted by the Federal Liberal Party under then Prime Minister Lester Pearson, and this is a contract, and should be continuously held forth as such, regardless of any position taken by Prime Minister Trudeau or other government officials. This was a contract made with full intent and cannot be broken.

In hand writing at the top of this typed, undated, unsigned document: “This was the position of the Liberals in 1963 and I still maintain that you can hold them to it. –H.C.”

Consultation Standards in BC – or – The Trilogy of Despair

04 Thursday Sep 2014

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August 2009

Recent court rulings in Halfway River, Taku River Tlingit, and Douglas have brought consultation standards spiraling down to a single unreturned phone-call.

Participating in consultations with government is a double-edged sword for Aboriginal peoples. We already know that the government and the courts find aboriginal laws of upholding the sustainability and sacredness of the land to be “unreasonable conditions.’ If they do not participate, or walk away, Aboriginal peoples are described as unreasonable – and if they do participate, they are stuck within a process that the government dominates.

Even when Bands or First Nations bring court cases following “negotiations” that disregard their input, their assertion of their own laws and duty to uphold them are unacceptable in BC courts.

Halfway River, 1999, gives us this.

Halfway River contested that logging had infringed their way of life to an unjustifiable extent. The Halfway case found the province free to infringe their Treaty 8. Halfway also concluded in an obligation on the part of Aboriginal peoples to participate in the consultation process, and not frustrate it with such “unreasonable” demands as those of sustainability, regardless of the foregone- conclusion nature of such BC-led procedures.

In Taku River Tlingit, 2005, the Taku River people were suing BC for going ahead with permitting a mining access road over their sacred mountain, right through the hunting grounds. Taku had participated extensively in consultation procedures and the environmental impact assessment. The government did not respect their position that the road had to be redirected, and permitted it as preceded the legal challenge. The court found that Taku had been adequately consulted and accommodated, since they had been part of the development process, and that their proper course of action was to continue in negotiations to mitigate the impact of the road at a site-by-site specific level. This was the first case to test the duty to consult and accommodate, it came down at the same time as Haida.

We have a final angle in Douglas, 2007. It was found that the Department of Fisheries and Oceans had not only fulfilled their duty to consult, but also upheld their obligation to the aboriginal food fishing priority when they opened a sports fishery on Early Stuart sockeye in the Fraser, five years earlier.

The Department had faxed and telephoned a few invitations to meet on the subject to the Cheam Band prior to the openings. Cheam had not been able to participate in the processes on the schedule DFO offered.

Nevermind, the fact that DFO offered them meetings fulfilled their duty to consult and accommodate, ruled the judge. And since the Department has the privilege of managing the fishery, no notices of later management changes were necessary.

What this would seem to mean to BC is that: First Nations must participate in the consultation process; once they have been consulted, anything goes; and as little communication as an unanswered fax and a phone call can accomplish the consultation and justify the decisions made by government ministries. The “meaningful” part of this “consultation and accommodation” is that BC is the boss, anyway.

Are these the parameters of the “shared decision making” contemplated in BC’s proposal for Recognition and Reconciliation Legislation?

“I’ll see you in court!”