The Cowichan decision in five points

30 Thursday Oct 2025

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aboriginal title, Canada, Comprehensive Claims Policy, Cowichan, history, indigenous, Indigenous Peoples, Land claims, news, politics, Richmond, Tl'uqtinus

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 20^th 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 2025 Download

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

Posted by Admin in Archive Quarterly

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aboriginal rights, aboriginal title, Arthur Calder, BCANSI, Bill C-31, Buffalo Jump of the 1980s, Comprehensive Claims Policy, Delgamuukw trial, First Ministers Conference 1985, Gitxsan Wet'suwet'en, Indigenous Peoples, James Gosnell, Land claims, Methodist Missions North Pacific, Nielsen Report, Nisga'a, Non-Status Indian reinstatement, Papers relating to the Northwest Coast Commission 1888, Rejection of Funds

AQ Spring Edition Features:

Rejection of Funds, April 1975

At the 7^th 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 funds Download

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 1985 Download

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 session Download

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 session Download

“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 programs Download

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 Chiefs Download

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 BC Download

“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. 1998-99 Download

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.

BC attempts Centennial Lands Act Amendment

11 Sunday Feb 2024

Posted by Admin in Reconciliation, Uncategorized

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aboriginal title, BC Lands Act, BC Recognition Act 2009, Canada, environment, history, indigenous, informed consent, Land claims, native-americans, Reconciliation, Statement of the Allied Indian Tribes of British Columbia

100 years ago this month, the Allied Tribes of British Columbia petitioned Parliament to shut down the report of the Indian Reserve Commission.

BC has very quietly set up a public consultation process on its plans to embed First Nations local governments within its Lands Act.

The lead is buried pretty deep: BC’s original assumption of control of all the land (without treaty or constructive arrangement) was in 1874. It was patently unconstitutional, and, at first, Canada’s Attorney General disallowed it.

What unfolded then was: replacement of the troublesome AG – Telesphore Fournier, with Edward Blake who allowed a new 1875 BC Lands Act, equally unconstitutional and an act of wholesale annexation, on the basis of settler convenience. Then Canada passed the Indian Act, locking Indigenous Peoples into a second-class-state of outlaw and criminalization. Meanwhile the Province of British Columbia sold off and settled prime Indigenous real estate, fencing communities decimated by smallpox into an-acre-a-person Reserves.

Fifty years of protest, petition, and physical defense of the land (1874-1924) did nothing to remedy the situation at the time, but increased BC and Canada’s resolve to the point of legislating the tiny Reserve Boundaries and making litigation on behalf of Indians… illegal (1927).

A hundred years ago this month, the Allied Tribes of British Columbia petitioned Parliament to shut down the report of the Indian Reserve Commission. BC and Canada had set out to finalize the Indian Land question in 1912, with the McKenna-McBride Commission, and unilaterally “quiet the Indian title,” all the while diplomatically shutting the land issue out of courts and the Privy Council forum.

In their 1926 Petition, the Allied Tribes wrote:
14. By Memorandum which was presented to the Government of Canada on 29th February, 1924, the Allied Tribes opposed the passing of Order-in-Council of the Government of Canada adopting the Report of the Royal Commission upon the ground, among other grounds, that no matter whatever relating to Indian affairs in British Columbia having been fully adjusted and important matters such as foreshore rights, fishing rights and water rights not having been to any extent adjusted, the professed purpose of the Agreement and the Act had not been accomplished.
15. By Order-in-Council passed 19th July, 1924, the Government of Canada, acting under Chapter 51 of the Statutes of the year 1920 and upon recommendation of the Minister of the Interior adopted the Report of the Royal Commission.

50 years before that, the Petition of the Douglas Tribes was brutally clear about the Indian Reserve crisis. And the Reserve boundaries have rarely, and barely, shifted since the final cuts of 1924.

The BC plan now, apparently, is to gain the consent of the Indigenous nations, in the form of the individual Indian Bands / First Nations, to their Lands Act after all.

It is appearing like a visitation of the 2009 BC Recognition and Reconciliation Legislation, which was put to death, in ceremony, in 2009 – once the grassroots people caught wind of it. The grassroots people tend to be very cautious about allowing their elected representatives to sign-on with government initiatives, and acknowledge the crown as the legitimate source of power over their lands, peoples, and futures.

However, little is known about this 2024 draft legislation except that it is proceeding as quickly and mysteriously as the 2009 event, which suddenly surfaced early in the Spring and was submerged by the end of summer.

For more information, you can check the:

BC government’s public consultation process

The BC Treaty Negotiating Times – Summer 2009 Analysis and report on the Proposed Recognition and Reconciliation Legislation, opposition, and events.

And this Blog’s timeline of docs under “Land Claims – policy and protest.” for more on the 2009 legislation, Indigenous Alliances and protest of government assumptions.

Check out Archive Quarterly – a new publication featuring newly digitized history that informs the present here in British Columbia. The first issue arrives April 2024. Every issue features key archival papers and artifacts; quotes and interviews with Elders on the issues; and relatable commentary to connect past and present.

Readers can Subscribe, Support, and Contribute: there are many ways to be engaged!

Take a link to the Archive Quarterly website or AQ on Facebook.

Reconciliation means Municipalization

29 Friday Sep 2023

Posted by Admin in Reconciliation

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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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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.

No more “Reconciliation Sticks”

26 Tuesday Sep 2023

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aboriginal rights, Canada, Indigenous Peoples, Land claims, Sovereignty

Part 1 – What do you mean, “reconciliation”?

September 30^th is the “National Day for Truth and Reconciliation.”

There aren’t enough calendar days in a year to mark the trespasses, and ensuing debts to humanity, amassed by the colonial Canadian project. For instance, when is “Compensation Day”? When is “Land Back Day”? And, “White women got Indian Status by Marriage, and Native women lost it.” Lest we forget.

For now, let’s talk about “Reconciliation.” “Truth” was abandoned fairly early on in the proceedings.

Traditionally, “reconciliation” of legal issues refers to the fulfillment of actions that will be taken to restore the peace and justice, as in a judicially prescribed schedule of reparations following a court decision.

We just don’t have the court decision, unless you count the Indian Residential Schools Survivors Settlement Agreement and the report of the Truth and Reconciliation Commission. But you can’t count those, because they were both mandated, conducted, written, and decided by one of the parties to the dispute. The dispute is between Canada and every Indigenous nation, so the judge can’t be one of those parties.

Imagine if somebody wrongs someone else and then conducts the inquiry as to what should be done about it. That is pretty much what Canadian “reconciliation” is.

If a judge – a court – is impartial to the outcome of a question, then they can have jurisdiction. But Canadian courts are not impartial to the outcome of the Indian land question, because those Canadian judges and all their friends and family and everyone who works for those courts have an interest in Canada winning the competition, so they lose jurisdiction because they’re not impartial.

Most unbiased observers would also notice that Canada has no treaties with Indigenous Peoples that include subjugation of Indigenous Peoples to arbitrary and unilateral Canadian decisions and values, to the total exclusion of the native right of law and jurisdiction.

If there were any application of “truth” to these affairs, “reconciliation” would involve an independent, impartial tribunal. And it would be well-defined.

The Prime Minister has formally stated a national pursuit of something that has no definition. Cities and provinces use the word “reconciliation” to mean anything from “business as usual, but with a big native art motif,” to “we said reconciliation, what more do you want?”

“Reconciliation” lacks all definition.

What it is and what it ain’t: what we know for sure about reconciliation

We definitely don’t know what it is. The Truth and Reconciliation Commission, Canada, itself did not offer a definition and did not have one written into its mandate. In fact, the TRC’s Call to Action #65 recommends the government work with policy and educational institutes to flesh out an understanding of reconciliation.

We do know a lot about what Canadian reconciliation isn’t. It’s not a legally defined process. It’s not binding. It has not been, and will not be, overseen by an independent, impartial, third party. It clearly does not mean that the RCMP will stop terrorizing and arresting land defenders when “negotiations” reach an impasse over cutting a 150km road through pristine forest and putting an oil pipeline there. And courts won’t stop finding them guilty and jailing them, as they did to Gidimt’en defenders in 2022.

We know how the police and RCMP think about reconciliation. The cops sent to stand off against the roadblock were heavily armed, and they arrested people with guns drawn. They referred to their guns as “reconciliation sticks.” We’ll talk about the meaning of that in Part 4 – Enforcement of Reconciliation.

Canadian “reconciliation” is so different than the reconciliation articulated by an Indigenous “Reconciliation Manifesto,” written by the late Arthur Manuel in 2017, that we very quickly apprehend the double entendre of the term. Manuel made it clear that, for Indigenous nations, there is a clearly marked reality to reconciliation – if there is any point to it at all:

“We will know that Canada is fully decolonized when Indigenous Peoples are exercising our inherent political and legal powers in our own territories up to the standard recognized by the United Nations, when your government has instituted sweeping policy reform based on Indigenous rights standards and when our future generations can live in sustainable ways on an Indigenous designed and driven economy.”

There are more than two distinct uses for the word reconciliation. One use refers to the restoration of peace, as described by Manuel – in very similar terms to thousands of native leaders since 1871 – and it refers to human relations. The other use of “reconciliation” is mainly applied to non-human imbalances: while building a house, you can literally reconcile a floor joist to match the door frame. Or you can achieve reconciliation in the budget, if you make some nips and tucks.

It is these latter, mechanical definitions which Chief Justice Antonio Lamer first used, in 1996, when he wrote that Section 35 of the Constitution is a tool with which to ensure the,

“…reconciliation of the prior existence of aboriginal societies with the sovereignty of the crown,”

Chief Justice Lamer, head of the Supreme Court of Canada from 1990 to 2000: right after Sparrow, through Delgamuukw, was talking about bringing round the as-yet unconvinced and unceded nations into Canada – whittling away the incompatible worldviews, traditions, and legal rights to the soil that don’t fit the colony’s vision for itself. He wants to reconcile those ill-fitting, autonomous Indigenous Nations, into Canadian structures. He was hardly the first.

Lamer was not interested in the way that Section 35 confirms the “existing Aboriginal and treaty rights” described in the Royal Proclamation 1763 and the British North America Act, with its Section 109. But the last time Canada tried to get rid of those, in 1976, when it made itself a new constitution that deleted those parts and any reference whatsoever to His Majesty’s independent Allies, there was an intercontinental movement called the “Constitution Express” mobilized by the Indigenous Peoples to remind their one-time Ally, Britain, about them. The British House of Lords was reminded, and forbade Canada to cut its legal roots. Hence Section 35 (1), affirming them in the Constitution Act, 1982.

So Justice Lamer said that section 35 is a “mechanism” to achieve “reconciliation.”

What he actually meant, following his wordplay through the dozens of illustrations he elaborated in the van der Peet ruling, was extinguishment of Aboriginal rights by negotiation. That was his prescription for reconciling the “pre-existing” societies with Canada, and, in the meantime, defining Aboriginal rights under the Constitution – one sockeye salmon at a time.

(Note: In Lamer’s ruling, Ms. van der Peet was affirmed in her sale of ten sockeye under an Aboriginal Food, Social, and Ceremonial fishing license. She sold them to a friend for $10 a piece.)

The only negotiations available to Indigenous Peoples are defined unilaterally by Canada, and they end in relinquishment of rights and claims in exchange for a little money and a little less land (very little) in fee simple title. This result is widely referred to as extinguishment, because… it eliminates the existing rights.

We’ll look at that more closely in Part 2, Reconciliation: Theft by Chief Justice.

Meantime, Canadians need to realize that the ‘spirit of reconciliation’ issuing from the upper echelons of their state is a mean one. That’s undoubtedly why the leaders of the society skirt the issue of defining it, and hide behind whatever hopeful face that sincere people want to project on it, and carry right on with business as usual.

The one term has so many uses

The term “reconciliation” has been wash-boarded across the media, which rolls it into play indiscriminately, no matter whether its usage is coming from the judicial, legislative, or executive branches of state; or from individual experiences; or from former Indian Residential School students’ families, who reasonably hope it means change. Unfortunately, it has two more working meanings that are really freezing cold in the shadow of Canadian denial.

Reconciliation also means “being resigned to something undesirable, or the process of reaching that state; acceptance.” And, finally, the word is used by Roman Catholics specifically to refer to penance, where perpetrators are forgiven by their god.

The Truth and Reconciliation Commission explained, in one of only a handful of attempts to positively define the term they were named for, that in the case of Indian Residential Schools (IRS),

“…reconciliation is similar to dealing with a situation of family violence.”

“Reconciliation is an ongoing individual and collective process, and will require commitment from all those affected including First Nations, Inuit and Metis former Indian Residential School students, their families, communities, religious entities, former school employees, government and the people of Canada. Reconciliation may occur between any of those groups.”

This seems like a categorically inadequate and vague suggestion. But that is the strength of the concept of reconciliation, and, as such, it serves the exact purpose which Justice Antonio Lamer invented it for: to turn real, well-defined, constitutional rights – section 35 (1) – into a ‘platform for negotiation.’

It’s now a quarter century since the government of Canada’s “Statement on reconciliation,” was read out, in ceremony, by Minister of Indian Affairs Jane Stewart. It came two years after the Supreme Court of Canada’s new invention.

She was announcing Canada’s response to the Royal Commission on Aboriginal Peoples, RCAP 1992-96, and their 4,000 page report. The government’s “Gathering Strength” action plan, 1998, was focused on issues raised by the Commission like early childhood education for Aboriginal communities; housing, water and sewer systems; welfare reform; major injections to the land claims negotiation process, to produce final agreements; and a $350m healing fund – the Aboriginal Healing Foundation.

Keep in mind that the RCAP was forced by an armed stand-off at Oka, where control of the land was at issue – not preschools; not increased welfare relief; not affirmative action schemes; not expediting land claims, but jurisdiction over the land.

Minister Stewart famously announced that the government of Canada “regrets” its role in the Indian Residential School system. The government demonstrably regrets nothing: Canadian money is still a solid eighty-cents-on-the-dollar coming directly out of the land. Indian Residential School enforced every child’s attendance for fifty years, and was one of the most effective strategies to destroy Indigenous groups, right along with smallpox, wiping out the buffalo, and the Indian Act. It’s one of the main reasons Canada gained access to their lands.

By the time Canada stated its “regrets,” every church involved had already given public apologies. But the Indigenous people had to wait until 2008 – after the ratification of the IRS Settlement Agreement – before Canada apologized.

Why is it that Indigenous Peoples, or individuals, have to sign something in order for Canada or provinces to apologize, or recognize, or “reconcile”? We’ll look at that more closely in “Part 4 – Enforcement of Reconciliation,” where the business-end of Canadian reconciliation is mutual recognition.

Canada has been importing and exporting its Indigenous title workarounds for decades. They echo back, and British colonies support each other. Hey, the first treaties in British Columbia were signed blank by Snuneymuxw Chiefs with “X”, and sent to New Zealand for the most current Imperial text. Australia cottoned on to ‘reconciliation’ by the year 1991. They made up a Bill,

“To establish a Council for Aboriginal Reconciliation (the Council) to promote a process of
reconciliation between Aborigines and Torres Strait Islanders and the wider Australian community.”

The Bill passed. Today, they use it in a very similar way to Canadian “reconciliation,” with “Reconciliation Australia” providing online portals for Australian businesses to post slides about mounting native art in the lobby, or Aboriginal customers – but not about justice, land back, compensation, reparation, or restitution. On October 14 this year, Australians voted overwhelmingly against giving Aborigines a voice to their Parliament.

There is something called “Global Affairs Canada’s action plan for reconciliation with Indigenous Peoples 2021-25.” They mean Indigenous Peoples all around the world. Presumably they want to make Indigenous Peoples everywhere conform to their interests, as per “reconciliation Def. #2 – to make compliant with” like they do here.

GAC says, “Global Affairs Canada is committed to applying a reconciliation lens across its diplomacy and advocacy, trade and investment, security, international assistance, and consular and management affairs.” This will be informed by the TRC’s Calls to Action, and the Report on Missing and Murdered Indigenous Women. Suffice to say neither of those Canadian commissions’ reports deal with land title, self-determination, jurisdiction, or reparation either.

Canada and British Columbia have both unilaterally passed legislation concerning the UN’s Declaration on the Rights of Indigenous Peoples. The Canadian UN DRIP Act is a fretful talk-and-log strategy which does nothing to improve Indigenous rights, but legislates that Indigenous Rights should be observed, whenever Canadians and the Indigenous agree on how that should be done. Canada ratified the International Declaration almost ten years after it first passed the UN General Assembly – but not before getting a few sub-standard “reconciliation” issues entrenched first in the 2015 TRC report. We look at that in Part 4 – Enforcement of Reconciliation.

Although they do not act like it, “…all Canadians are treaty people, bearing the responsibilities of Crown commitments and enjoying the rights and benefits of being Canadian.” That is how George Erasmus put it, when he was longtime-President of the Aboriginal Healing Foundation, in “Cultivating Canada; Reconciliation through the lens of cultural diversity.” It’s a 2011 Aboriginal Healing Foundation publication.¹

The treaty people aren’t acting properly: they pass legislation and think it should affect the self-determining people.

The self-determination of Peoples means that which is arrived at, by Indigenous Peoples, freely determining their political status, on their own territories. And not by any means to be coerced out of their natural wealth. It’s in the International Bill of Rights, 1969, which is two Conventions: one for the rights of Peoples to Economic, Social, and Cultural Rights (CESCR), and one for Civil and Political Rights (CCPR). Canada hasn’t come around to recognizing that Indigenous Peoples are “Peoples” within the meaning of such international treaties and statutes.

The Standing Committee on Indigenous and Northern Affairs has, this year, embarked on a study of Restitution of Land to Indigenous Communities. A similar investigation was called for by the former Prime Minister, John Diefenbaker, fifty years ago. At that time, for the first time, three Supreme Court of Canada judges ruled that Aboriginal title exists in Canada and it hasn’t been, couldn’t have been, shifted by any unilateral action of the state.

Will restitution be made to self-determining Peoples and nations? Or to treaty First Nations which have traded their sovereignty (in exhaustion and duress) and unextinguished land claims for a few acres and municipal status? “Reconciliation” doesn’t say, it doesn’t offer guidelines consistent with international law and convention; it says wait and see.

We’ll look a lot more closely at that in Part 3 – Reconciliation as Subterfuge.

In 2004, the feds lost track of a secret policy document, it was leaked, and it explained all about how “the concept of reconciliation” would “secure investment, stabilize certainty,” and – always last in line – “promote socioeconomic development in Aboriginal communities.” The government has told us what it wants out of this reconciliation project, and it has a lot more to do with starving-and-coercing Indigenous leaders into major releases.

How should Canadians understand their role, or their government, and the urgent task of averting genocide before them, when their elected leaders are clearly using a term of utmost importance in a duplicitous way?

For too long Canadians have been slaves to greed and desperation, partly informed, no doubt, by many of their own flights from genocide and colonization. The Sto:lo word for the white people, when they arrived in the Fraser Valley, translates as “the hungry ones.” But not just hungry; “insatiably hungry and never satisfied.”

When Canadians talk about “reconciliation,” they should be specific:

“I mean hurrying up land claims so we have certainty for investment,” as per federal policy.

“I mean enacting Canadian legislation to improve the way native families interact with social workers in the Ministry of Children and Families,” as per the TRC calls to action.

“I mean forcing impoverished communities to relinquish their rights, under duress, in the only negotiated land claim settlements Canada will offer,” as per the Supreme Court of Canada.

“I mean redecorating the academy, you know, and making a list of Indigenous gift shops so professors can buy suitable thankyou presents for guest speakers,” as per university ‘decolonization handbooks.’

“I mean hurrying up self-government agreements with the First Nations, following Canada’s “Inherent Rights Policy,” and as augmented by the First Nations Governance Act, the First Nations Fiscal Responsibility Act, and the First Nations Land Management Act,” as per federal policy. “You know, to reconcile their pre-existence with the sovereignty of the crown.”

Or maybe they mean something sincere, but on a personal level:

“I mean – holy cow – I have sat up all night and all day all week and just tried to come to grips with the realization that everything that happened to us in Ireland, the British took our worst monsters – graduated up through the Christian Brothers industrial schools, and brought them here to do the same to these people,” as per the individual journey.

And even,

“I just heard about “Namwayut” and I’m learning to be reminded that: “we are one in the universe, and we are one with the universe,” as per readers of Chief Robert Joseph’s book, “Namwayut ~ A Pathway to Reconciliation.”

But …

If Canadians want to talk about unqualified Land Back; if they mean RCMP out; if they mean recognition of and restitution of authentic governments; justice for crimes of genocide; and if they mean reparations and compensation, they are not talking about the reconciliation promoted by Canadian institutions and the legal and executive branches.

The “True Reconciliation” sticks are rattled to drum out and silence unassimilated, autonomous people who want to determine their own future: who know their rights come from their Creator and ancestors – not from Canada.

Peace and justice are the more appropriate objectives.

Tsawwassen, Musqueam, Tsleil Waututh, and Squamish Peoples, among others from Sto:lo to Tagish, are internationally protected people. They are protected from us – Canadians – and you can see why.

Let’s reconcile, and I mean here, “accept the very uncomfortable fact,” with that: Canada does not have the treaties – it does not have the consent or agreement – with Indigenous land title holders.

Currently, “reconciliation” is a coercive process, enforcing colonial control and interference, and denying the Peoples’ rights.

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

Check in tomorrow for Part 2 of No more “Reconciliation Sticks” – Theft by Chief Justice.

Note that the Aboriginal Healing Foundation abruptly lost its federal funding, after a dozen years of good work, when it advised against lump-sum settlement in the Indian Residential Schools Survivors Settlement Agreement; and then produced a report counting the suicide, overdose, accident, and other damage resulting from Canada’s lump-sum settlement. ↩︎

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.

“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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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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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.

Living Treaties, Lasting Agreements. 1985

11 Tuesday Jul 2017

Posted by Admin in Comprehensive Claims - Policy and Protest

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Tags

aboriginal rights, Canada, Comprehensive Claims Policy, Federal Liberals Comprehensive Claims Policy, Land claims, Living Treaties Lasting Arrangements, Section 35, treaty rights

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

The West Wasn't Won

~ Outlive the colonial world.

Tag Archives: Land claims

The Cowichan decision in five points

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?

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

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

3. Displacement

4. Cowichan fishing rights

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

A few more observations

Helpful quotes from previous rulings:

EXCERPTS from the decision in Cowichan

Summary of the Cowichan Ruling, Justice Young

Archive Quarterly ~ Spring 2025

AQ Spring Edition Features:

Rejection of Funds, April 1975

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

First Ministers Conference on the Constitution, April 2, 1985

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

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

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

AQ Spring 2025:

Reconciliation means Municipalization

Enforcement of Reconciliation

No more “Reconciliation Sticks”

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

“I guess you had more rights than we thought”

Delgamuukw v. The Queen

Living Treaties, Lasting Agreements. 1985