With the recent Haida agreement, “Rising Tides,” where British Columbia recognizes Haida title to its lands and waters as “Aboriginal title,” we are forced to wonder: is this the same “Title” that Indigenous Peoples west of the Rocky Mountains have been roadblocking, litigating, and petitioning international courts for?
No doubt the Haida have little intention of relinquishing their inherent ancestral titles and rights, their internationally recognized Peoples’ rights to self-determination and control of their own natural wealth. But reading the Agreement reveals there is no doubt the province intends to minimize its recognition of what that entails.
“Aboriginal title is defined under Section 35 of the Canada Constitution Act, 1982, and by the common law.” That is, Canadian law.
A sharp reading of the Rising Tides agreement would argue that what has been achieved is actually the unprecedented recognition by the Council of the Haida Nation: recognition of Canadian jurisdiction. In the text, Haida nation recognizes all of the province’s existing fee-simple titles, tenures, and jurisdictions – without compensation. They say they are working to reconcile these jurisdictions now.
British Columbia and Canada have already been forced to recognize Indigenous jurisdiction in countless ways, so the statement of the crown’s recognition is, if anything, diminished by the phrasing “Haida Aboriginal title.”
Is Haida Title the same as Aboriginal title? Not according to every preceding generation of Haida matriarchs and chiefs. (Check out an archival collection of Haida roadblocking, negotiating and lawfare at the ROADBLOCK page of The West Wasn’t Won.)
“Our place in our country… is that the native people have their homelands, and have control over their own lives; absolute control, with all the responsibilities over our resources and lands. We have to have control. Otherwise, I don’t see anything changing for us. …But the thing that I find really terrible is that they [the government] plan to give us empty lands with no more resources.” – Lavina White, former President of the Council of the Haida Nation.
Native articulations of their title is typically so categorical.
“We own this land, lock stock and barrel!” – Nisga’a. “We are the rightful owner of our country and everything pertaining thereto.” – Lillooet. “We stand for compensation to us by the British Columbia government for all lands of ours appropriated, or held by them, including all lands preempted or bought by settlers, miners, lumbermen, etc.” – Southern Interior Chiefs.
Beginning in 1973, the Supreme Court of Canada (SCC) has been building its definition of Aboriginal title, to supersede the existing, well-defined, and independently articulated land titles of native nations.
That was the first year that the “BC Indian Land Question” ever had its day in that court, fully one century past the original legal complaint. The Nisga’a sued for a Declaration that their native title had not been extinguished.
Forty years and hundreds of cases later, the SCC made a Declaration of Aboriginal title in the Tsilhqot’in decision, 2014. It’s the first and only one in Canada.
The accumulated characteristics of Canada’s Aboriginal title, according to the common law, include that:
it is sui generis (unusual, not like normal proprietary title)
it therefore cannot be registered as in interest in land (ie, registered with the Land Titles Office)
it is “subject to certain carve-outs” (it can be infringed for reasons justifiably important to Canadians)
the Aboriginal title holders can not sell their land or dispose of it in any way except by sale or cession to the Crown government (unless by the Crown’s explicit agreement)
it is an Aboriginal right
it must be proven in court to exist, and part of that proof is continuous, exclusive occupation; and use of the land which is integral to the distinct culture of the Aboriginal people claiming the right
Aboriginal peoples cannot use their land for any purpose which contradicts that defining, culturally integral aspect
the consultation and accommodation procedures for development of land subject to Aboriginal rights, as defined in Canadian courts, requires Aboriginal people to participate and be bound by the results
The Tsilhqot’in decision is the first and only example of judicial recognition of Aboriginal title in Canada. The Haida agreement is the first and only example of political recognition of Aboriginal title.
No one can fault the Haida for tempering their position, for seeking a real working solution to saving their future. Hopefully the Rising Tides is only an increment, in an unfolding event that resurrects Haida title.
The West Wasn’t Won has a new journal!
Archive Quarterly celebrates its first edition this month.
A curated collection in every edition, these journals will each fill a sizable gap in authentic readings available to inform the restitution process between settler society and Indigenous societies today.
AQ’s very first Special Issue will focus on Title, coming June 21.
September 30th 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 sureabout 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.
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.
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.
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. ↩︎
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 21st 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.
WARNING – this article refers to abuse of children
Two Indigenous people, a married couple, were sentenced on Friday June 23, the foster parents of young Indigenous siblings. They were charged with assault and manslaughter and sentenced to ten years in prison.
Our deepest condolences go to the children’s family, the perpetrators’ families, and the Sto:lo people in whose community these events – which are not unique – have unfolded.
That Sto:lo community is not alone, not in any part of this tragedy. The incomprehensible hurt and loss of innocent Indigenous children is part of a much larger, much older, ongoing and world-famous Canadian assault on Indigenous Peoples.
Another Indigenous mother presented her petition against British Columbia and Canada to an international arbiter, in 2007, for the senseless, routine, and indefensible apprehension of her children and their subsequent abuse in Ministry “care.”
Her case was admitted to the Inter-American Court in 2014: not only do Indigenous Peoples suffer for a lack of jurisdiction over their own children and families, but they suffer from the total denial of their title and rights over everything else – their land and jurisdiction – that would allow them to maintain their children and families according to their own traditions.
That is, losing children to the state is the direct result of the state’s denial of Indigenous Peoples’ land titles and the accompanying rights, wealth, national identity, authentic governance, and social and cultural structures.
The Lake Errock case in the news
The First Nations Leadership Council has called for the resignation of the Minister of Child and Family Development, Mitzie Dean, and the Premier of BC snapped back that the Ministry has his full support and confidence. The BC Greens Caucus has now backed them up on the demand for a resignation.
Are criminal charges pending against the Director of Child and Family Services of British Columbia? Children “in care” also died in 2020 and 2017 in BC. And 2015. And… the total lack of accountability or culpability in Indigenous child deaths “in care” is a signal from the colonial administration: they are only doing what they set out to do. This colony set out to supplant Indigenous Peoples, and the deaths of their children in mandated forcible removals is “just” a part of that mandate. It is no different from the “kill the Indian in the child” mandate established by the first Prime Minister of Canada, Sir John A. MacDonald, when he stated in 1910, “It is readily acknowledged that Indian children lose their natural resistance to illness by habitating so closely in these schools [Indian Residential Schools], and that they die at a much higher rate than in their villages. But this alone does not justify a change in the policy of this Department, which is being geared towards the final solution of our Indian Problem.”
Sixteen months after this eleven year old boy was killed in Lake Errock, by the foster mother, the Ministry’s culpability in the abuse and death is clearly a contributing factor. Seven months had passed since any agent of the Ministry, any social worker, checked the foster home or the children’s well being when the fatal events happened at the end of February 2021. There was not even a virtual check in by phone or online communication.
The trial has revealed that brutality was ongoing in that home, including coercing other children resident there to participate in abusing the 8 and 10 year old sister and brother.
While mainstream media is tip-toeing around the legendary mortality rate in Canada’s Indigenous child apprehension programs, there are some basic facts that we should be reminded of.
Aboriginal delegated agencies for children and families
There is, in British Columbia, a perpetual cycle of tragedy, inquiry, recommendation, ad hoc Indigenous involvement, delegated control capped by BC MCFD mandates, funding cuts, mismanagement, denial… tragedy, inquiry, recommendations…
The fact that this cycle has continued unchecked since the 1980s is proof positive of a mandate among BC social workers to disrupt and endanger young Indigenous families. Apprehension of children from young Aboriginal families, according to a career social worker who would rather not be named, is the unwritten but understood objective.
Indigenous communities have fought valiantly for the power to help their own families without interference. Indigenous Chiefs have rallied to several major commitments to step into roles of youth care and family support over the last four decades.
What they get is delegated powers from a colonial Ministry, which is perpetually determined to undervalue the cost of these responsibilities, and to control mandates and delivery.
The Indigenous foster parents of the two Indigenous foster children in this case were living in an area, Lake Errock, which is served by Xyolhemelh, a delegated Aboriginal child and family services society.
Xyolhemeylh is the agency that was responsible for Alex Gervais. In 2015, Gervais, age 17, died by falling out of an Abbotsford hotel room window where he had been “temporarily” housed by the society for 49 days.
The event was the subject of a February 2017 report on the dysfunction of B.C.’s Aboriginal child welfare system.
A press statement from the BC General Employees Union in 2017 explained:
“The Ministry of Children and Family Development (MCFD) is responsible for providing funding for a significant portion of the services that delegated Aboriginal agencies like Xyolhemeylh provide. A recent agreement between MCFD and the agency has brought caseload funding on par with levels within the MCFD, providing some relief from a dire recruitment and retention crisis at Xyolhemeylh.
“However, because MCFD has itself been drastically under-resourced for decades, the increase still isn’t enough to provide care that is appropriate to Aboriginal children and youth. “Unfortunately, staffing resources equal to MCFD is no answer for Xyolhemeylh workers who are desperately trying to provide services in culturally appropriate ways to children whose families are scarred with multigenerational trauma, and the dire poverty that so often accompanies it,” said BCGEU President Stephanie Smith.”
The cycle
The report, “Skye’s Legacy: A Focus on Belonging,” was submitted by B.C. Representative for Children and Youth Dr. Jennifer Charlesworth, explored the life of a youth named Skye, who died of an overdose on her 17th birthday in August 2017.
The report found that B.C.’s child welfare system left Skye without a sense of belonging, particularly as an Indigenous person, which contributed to her death. She was taken from her mother at age five and lived in fifteen different homes before her death twelve years later.
“Collaboration among ministry, Indigenous communities needed to assess living situations of kids in care: jury.” This headline refers to the death of a 17-year-old Cree teen in a group home in Abbotsford. The report recommended more family-based services for children in care and faster action when those children go missing.
Traevon Chalifoux-Desjarlais was found dead in a bedroom closet in September 2020, four days after he was first reported missing by a group home staffer.
The Timeline
2023, June 29 – The B.C. Green Caucus stands with the FNLC, calling for the resignation of Minister of Children and Family Development, Mitzi Dean, in light of the shocking and horrific systemic failures of the Ministry that have continued under their watch.
2023, June – First Nations Leadership Council calls for the resignation of the Minister of Child and Family Development, Mitzie Dean, over the 2021 death of a child in foster care in Lake Errock, after the trial and sentencing of the perpetrators. The children’s case was handled by a delegated aboriginal agency, which had not checked in for seven months when the child died.
2021, June – report by BC’s Children and Youth Advocate, “Skye’s Legacy: A Focus on Belonging,” explored the life of a youth named Skye, who died of an overdose on her 17th birthday in August 2017. The report found that B.C.’s child welfare system left Skye without a sense of belonging, particularly as an Indigenous person, which contributed to her death. She was taken from her mother at age five and lived in fifteen different homes before her death twelve years later.
2021, May – the unmarked graves of 215 children on the Kamloops Indian Residential School grounds are confirmed. This leads to examination of other Indian Residential School sites, and further confirmation of similar mass unmarked graves at every school inspected so far.
2020, September – Traevon Chalifoux-Desjarlais was found dead in a bedroom closet, four days after he was first reported missing by a group home staffer.
2020 – present: most First Nations have accepted the demise of the Aboriginal Peoples Family Accord, the Tsawwassen Accord, and the Indigenous Child at the Center Action Plan. Instead, they have implemented the recommendations of the 2015 Report of MCFD Special Advisor Grand Chief Ed John. The report called for a Social Worker on every Indian Reserve, and the January 2020 enabling legislation provided delegated agency, to fulfill the Ministry mandate, to each First Nation.
2020, January – Bill C-92, “The Act respecting First Nations, Inuit and Metis children, youth and families” applies to Indigenous groups, communities or peoples, regardless of status or residence within Canada, who bear existing and inherent Aboriginal rights as per section 35 of the Canadian Constitution.
It is designed to affirm the rights and jurisdiction of Indigenous Peoples in relation to child and family services, and to set out principles applicable, on a national level, to the provision of child and family services in relation to Indigenous children. The Act creates a set of National Standards that must apply when working with Indigenous children, youth and families, and provides for changes to jurisdiction when making decisions about Indigenous lives.
The Act contributes to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples and provides an opportunity for Indigenous peoples to choose their own solutions for their children and families. Our children, our way.
2017, August – an Indigenous youth named Skye died of an overdose on her 17th birthday. She was taken from her mother at age five and lived in fifteen different homes before her death twelve years later.
2017 – A recent funding agreement between MCFD and the delegated aboriginal agencies brought caseload funding on par with levels within the MCFD.
2016 – APFA runs out of funding, dissolves.
2016 – 2014? – termination of regional delegated agencies – consultation and development program – follows from lack of support from individual communities for the regional, not community-based, process. Instead, most Bands sign on to deliver MCFD mandate themselves, following Ed John’s report recommending a social worker / agent on every reserve.
2016, November – Indigenous Resilience, Connectedness and Reunification–From Root Causes To Root Solutions; A Report on Indigenous Child Welfare in British Columbia Final Report of Special Advisor Grand Chief Ed John. The report calls for a Social Worker on every Indian Reserve.
2016, March – The B.C. Teachers’ Federation calls for Stephanie Cadieux, Minister of Children and Family Development, to resign after Patricia “Indigo” Evoy was found dead in a Burnaby, B.C., apartment March 10. She is the third aboriginal youth, in as many years, to die while receiving help from the B.C. Ministry of Children and Family Development.
2016, March – Patricia “Indigo” Evoy died while in Ministry “care.”
2015, December – Plecas Report part 1 released
2015, December
2015, December 22 – Sto:lo Tribal Council call for Bob Plecas and Ed John’s resignations, and reports to be shelved. They cite the misleading appearance of Indigenous representation with Ed John’s participation, which was not endorsed by Indigenous groups
2015, September – Grand Chief Edward John appointed Special Advisor on Indigenous Children in Care, “to engage First Nations and Aboriginal leaders in discussions to help the Province reduce the number of Aboriginal children in care; and, to engage with the federal government in meaningful work to enhance prevention and intervention work as well as address ‘root causes,’ as discussed in the report.” 6 month term
2015, September – NDP John Horgan calls for Minister of Children and Families Stephanie Cadieux to resign, following the death “in care” of Alex Gervais.
2015, September – Alex Gervais, age 17, died by falling out of an Abbotsford hotel room window where he had been “temporarily” housed by the Aboriginal delegated authority the Xylohmelh Society for 49 days.
2015, July – “Aboriginal Children in Care” report to Canadian Premiers identified “core housing need” among 40% of single parent families living on-reserve, among other major iniquities: in 2012, 40% of Indigenous children live in poverty; 43% of women in federal prisons are Aboriginal.
2014, December – The Lil’wat petition is admitted to the InterAmerican Court of Human Rights, which waived the requirement to prove exhaustion of the domestic remedy
2014, August – Canada’s Premiers directed provinces and territories to work together on solutions to reduce the number of Aboriginal children in child welfare systems. A report was provided to Premiers at the Council of the Federation (COF)
2013, November – report: When Talk Trumped Service: A Decade of Lost Opportunity for Aboriginal Children and Youth in B.C.
Mary Ellen Turpel-Lafonde, Representative for Children and Youth, BC
The report offered critical observations on how both Aboriginal organizations and BC’s Ministry of Children and Family Development (MCFD) have failed to meet the needs of children through what she has stated is a system of “fractured accountability”.
2011 – Child and Family Wellness Accord
Between leadership of the nine south island First Nations and urban Aboriginal community, known as the South Island Wellness Society, and the Province of B.C.
– to design and develop an Indigenous child services system for the care and protection of Aboriginal children, youth and families in the region.
-to restore, revitalize and strengthen the services in an effort to address the gaps and socio-economic barriers impacting the well-being of Aboriginal children and families
2011 – The Lil’wat petition to the InterAmerican Commission on Human Rights is accepted, the Edmonds petition, concerning the lack of Canadian jurisdiction to interfere in Lil’wat families living in Lil’wat territory
2010 – termination of APFA, end of funding for Child at the Center and Interim Child and Wellness Council
2008, July – Interim Child and Wellness Council established to gather further input for the Indigenous Child at the Centre Action Plan to ensure it reflects the knowledge of front line workers, youth, the community and leadership. The Council will then develop a workplan to advance and implement the Child at the Centre Action Plan.
2008, July – First Nations Leadership Council announces the Indigenous Child at the Centre Action Plan
2008, June – Prime Minister Stephen Harper apologizes for Indian Residential Schools
2008, April – VACFSS receives mandate from MCFD for “child protection,” meaning license to remove children from their homes and place them “in care”
2008, February – Overview of the Child Critical Injury and Death Investigation and Review Process in British Columbia
Prepared by The Children’s Forum: – BC Coroners Service – Ministry of Children and Family Development – Ombudsman – Public Guardian and Trustee – Provincial Health Officer – Representative for Children and Youth
2008, January 25 – the ‘Walking Together to Keep Indigenous Children at the Centre’ Declaration of Commitment among Indigenous Peoples “in” British Columbia
2008 Aboriginal Peoples Family Accord
A process of constituting regional delegated aboriginal agencies
2007, November 29 – the ‘All Our Relations’ Declaration of the Sovereign Indigenous Nations of British Columbia
2007 – GOOD PRACTICE ACTION PLAN
Ministry of Child and Family Development, BC
“Aboriginal peoples exercising their rights to jurisdiction over their children’s well-being, through self-determination, have strong and healthy children, youth and families.”
2006 – the Assembly of First Nations settles a number of individual and class-action suits against the Canadian government for harms caused by Indian Residential Schools.
the system for reviewing child deaths, including how these reviews are addressed within the Ministry,
advocacy for children and youth;
and the monitoring of government’s performance in protecting and providing services for children and youth
2005 – Opposition BC party NDP call for review into the two Aboriginal child deaths; advocates for other youth call for supports to youth in care
2002, September – toddler Sherry Charlie died in a foster home she was placed in by MCFD / delegated USMA (Nuu-chah-nulth) child services
2002, September – 23-month-old Chassidy Whitford was killed by her father on the Lakahahmen reserve near Mission in 2002, in Xyolhemelh / Fraser Valley Aboriginal Child and Family Services care.
2002, June – Formation of the First Nations Leadership Council, under the Tsawwassen Accord between the province of BC, BC region Assembly of First Nations, First Nations Summit, and the Union of BC Indian Chiefs.
2000-2001 – Ed John, an Indigenous Chief of the Carrier Sekani Tribal Council, is made the Minister for Children and Family Services, BC
2001, December 14 – VACFSS and the province sign the Delegation Enabling Agreement (DEA). VACFSS can provide a full range of delegated Resource and Guardianship services. It also provides non-delegated services through Indigenous Family Preservation and Reunification Services.
2000 – First Nations child and family services, national policy review – report by DIA and AFN
2000 – the Nisga’a Final Agreement includes agency over Children and Families, and the Nisga’a Child and Family Services is an extension of the provincial Child and Family Services law.
1999 – VACFSS began negotiations with the Ministry to deliver delegated services under the BC Act. The VACFSS Guardianship Pilot Project began.
1998 –A Review of the Implementation of the Report of the Gove Inquiry into Child Protection
1996 – creation of the Children’s Commission to review child deaths and oversee the activities of the new ministry
1996 – a series of community consultations leads to VACFSS receiving Indigenous support to get “designation status” – providing advocacy to families and notifying First Nations when their children were removed from their member families in the Lower Mainland
1994 – Gove Commission announced following murder of Matthew Vaudreille
1994, May – creation of Child, Family and Community Service Act, and the Child, Youth and Family Advocacy Act
1992 – “Liberating our Children, Liberating our Nation” – legislation review report calls for Indigenous jurisdiction over Indigenous children
(Community Panel Child Protection Legislation Review, British Columbia Report of the Aboriginal Committee: Eva Jacobs, Kwakiutle Nation and Lavina White, Haida; Fred Storey, Project Manager; Loretta Adams, Researcher; Faye Poirier, Administrative Support)
1989 -The Nuu-chah-nulth Department of Family and Child Services (Usma) becomes the first Aboriginal agency in Canada to exercise full delegated authority for child welfare.
1988 – the off-reserve advocacy union, United Native Nations, work in family reunification, and volunteerism spreading to child care and protection, is formalized as the Mamele Benevolent Society to facilitate in-home support programs, advocacy for families with children seized by the BC Ministry. This organization becomes the Vancouver Aboriginal Child and Family Services Society in 1992.
1986 – Child Welfare Committee
1980 – Child, Family and Community Service Act BC
1980 – Spallumsheen bylaw; child protection is carried out by the Band
1980 – Indian Child Caravan took place over Thanksgiving weekend, October 9-13, 1980. The Caravan began in Prince George and picked up more people along its route. The group advanced to Williams Lake and Mount Currie, and merged with people from the Interior and Vancouver Island communities before culminating with a rally in Vancouver. And sit-in outside the Minister’s house
1972-73 On March 9, 1973, the National Indian Brotherhood appeared at the Standing Committee of the House of Commons on Indian Affairs. Joe Clark, then a Member of Parliament from Alberta, moved that the Committee recommend to the House of Commons that the NIB’s
1972 Aboriginal Rights Position Paper be adopted as a description of aboriginal rights. It includes control of children and families.
1969 – Moccasin walk of a hundred miles, Indian Homemakers Association of BC,
raise funds for the British Columbia – wide Indigenous leadership gathering, which becomes the Union of BC Indian Chiefs, with a mandate to pursue the Indian Land Question.
1960s – “60’s scoop” indiscriminate and mass seizure of Indigenous children to state “care” and adoptions outside Canada. Follows delegation of social services from federal to provincial, and decriminalization of keeping children out of Indian Residential Schools
1920 – Indian Act amended to require Indigenous child attendance at Indian Residential Schools, on pain of imprisonment of the parents for non-compliance
BC’s first Superintendent of Neglected Children, 1919
1910 – Prime Minister John MacDonald: “It is readily acknowledged that Indian children lose their natural resistance to illness by habitating so closely in these schools [Indian Residential Schools], and that they die at a much higher rate than in their villages. But this alone does not justify a change in the policy of this Department, which is being geared towards the final solution of our Indian Problem.”
end list *
Please find archival material at: ihraamorg.wordpress.com and check the archive in “Children” on this site.
New book batters Canadian denial, launches in Vancouver this week
Suffer the Little Children – Genocide, Indigenous Nations and the Canadian State By Tamara Starblanket
Clarity Press, 2018
Foreword by Ward Churchill
Afterword by Sharon H. Venne
Official launch Thursday, June 7, 6pm at the Vancouver Native Education Center.
This much-anticipated book places Canada’s Indian Residential School programme among the world’s leading crimes against humanity: genocide. From the Introduction: This book is meant to serve as a battering ram to hammer through the wall of denial.
Advance remarks on this book by Noam Chomsky, Steven Newcomb and Irene Watson indicate its importance to leading thinkers today. The Foreword by Ward Churchill and Afterword by Sharon Venne, an international legal expert on the rights of Indigenous Peoples, lend even more credibility to the work. It’s a subject of pivotal importance in Canada, and yet few have had the fortitude to approach it. Far fewer have had the endurance to complete such a painful analysis.
One of the most important things about this book is its refusal to allow Canada to be considered a “post-colonial” state. The evidence against Canada’s genocidal “forcible removal of children” during the Indian Residential School era is connected to the present-day foster care system, which targets young Aboriginal families in particular: still forcibly removing children from the genocidally-targeted group and placing them with members of another group. With the colonizing group: be they white, yellow, beige, or brown families. And still removing those Indigenous children with the same genocidal objective of “bringing about the destruction of the group, in whole or in part,” in order to continue colonizing and absorbing the yet-unceded Indigenous homelands.
Starblanket’s thesis, on which the book is based, was argued successfully for a Master of Laws degree from the University of Saskatchewan.
Another of the book’s most important accomplishments is Starblanket’s assessment of Canada’s official federal treatment of the Indian Residential School fallout as having only to do with individuals. Individual survivors were compensated under the 2006 Indian Residential Schools Survivors’ Settlement Agreement. In fact, the intended and effective result of the “schools” was a series of national crises among the Indigenous Nations whose lands Canada tries to claim. With their children gone, and their languages and systems of culture and governance uncertain, the crime was against nations – not individuals. Starblanket breaks down the very different legal implications.
The crime of removing the children was against nations and peoples with the right to self-determination, land, language, history and future: individuals do not have such rights.
But it is Canada’s special reservation to deny the nationhood and national characters of some fifty nations. This is in keeping with Canada’s posture that the state has the ability to absorb various Indigenous “minorities” within its stolen borders, and award them various “Aboriginal rights” in place of their internationally-recognized rights as nations and peoples.
Canada’s assault on these nations is justiciable – for all the reasons Starblanket puts forward – under the Vienna Convention on the Law of Treaties, 1969; under the Geneva Convention for the Prevention and Punishment of the Crime of Genocide, 1948; and, in some ways, under more recent international norms, such as the International Convention on Economic, Social and Cultural Rights, and the International Convention on Civil and Political Rights. These latter two are equipped by the United Nations with Treaty Bodies – with Committees which have repeatedly reviewed and severely criticized Canada for its denial of the self-determination of Indigenous Peoples. Starblanket concludes that self-determination is the answer. Not “reconciliation,” which she debunks as a public relations scam.
Information does not make change, however. There is no Committee to receive reports on, or review violations of the Geneva or the Vienna Conventions. Only states can take other states to the International Court of Justice for that. And, so far, no other state has been willing to intervene in what is known as the “domestic judicial complicity in genocide,” such as it is within Canada. This book may help with that.
If there must be a shortcoming in Suffer the Little Children, it is the absence of international legal prescriptions for justice. Genocide is not a crime which a state can be allowed to rule on domestically when its own government is one of the parties to the crime. There is an important precedent. In 2007, Menchu v. Montt was heard by the Constitutional Court of Spain. That case concerned Guatemala’s genocide against the Mayan people, and it found General Rios Montt guilty of genocide. Unfortunately, the presiding Spanish judge, Justice Garçon, died suddenly and unexpectedly shortly thereafter. And the ruling was reversed.
The importance of this book is that it makes available, to the people of Canada and to the people of the world, the trial of Canada – if not the actual court room. These things take time, and this book keeps the clock ticking.
If the empires and invading nations cannot be relied on to deliver justice, even when their Constitutional Courts decide a fairly obvious matter, perhaps the people of the world can do better. If not the colonizing people of Canada, who have a vested interest in the displacement, denial and dispossession of the original nations; then perhaps the people of the world – as the overthrow of apartheid in South Africa was achieved, in part, by outside groups.
And if the example of Menchu v. Montt could be brought to bear in the case of Canada, might we get the next chapter of this story? Something like Starblanket v. The Director of Child and Family Services? The case has certainly been laid out: the Ministry has been advised, time and again, over decades, of the effects its actions are having – and it keeps doing them.
The book will be officially launched this Thursday, June 7, at the Vancouver Native Education Center. Event starts at 6pm.
“While other aspects of Canada’s “Indian policies” can be seen to fit the definition of genocide, specifically at issue in this book is its century-long program of forcibly removing indigenous children from their families, communities, societies—in sum, from their Nations—and placing them for sustained periods in “residential schools” where the stated goal was to strip them of their cultural identities and “remake” them into “end products” deemed useful to Canada’s colonizing and ever-growing settler population.”
“I am the sole member of my birth family still alive. My grandparents, maternal and paternal, as well as my late mother and her siblings, were all forced to spend their formative years in the schools, an experience from which none of them would ever recover.”
About TamaraStarblanket:
Tamara Starblanket is Spider Woman, a Nehiyaw iskwew (Cree Woman) from Ahtahkakoop First Nation in Treaty Six Territory. Tamara holds an LLM (Master of Laws) from the University of Saskatchewan, and an LLB from the University of British Columbia. She is the Co-Chair of the North American Indigenous Peoples’ Caucus (NAIPC) at the UN Permanent Forum on Indigenous Issues. She presently coordinates and teaches in the criminology program at Native Education College in Vancouver, BC.
Early Reviews:
“Settler-colonialism reveals the brutal face of imperialism in
some of its most vicious forms. This carefully researched and
penetrating study focuses on one of its ugliest manifestations,
the forcible transferring of indigenous children, and makes a
strong case for Canadian complicity in a form of ‘cultural
genocide’ – with implications that reach to the Anglosphere
generally, and to some of the worst crimes of the ‘civilized
world’ in the modern era.” Noam Chomsky
“Tamara Starblanket’s work is confident, clear and succinct;
her work is ground-breaking and provides us with new ways of
looking at how the states treatment of First Nations Peoples
has gone unrecognised for its genocidal affect. This work
provides an excellent critique on the exclusion of cultural
genocide from how genocide is defined in international law.” Professor Irene Watson,
Research Professor of Law, University of South Australia
“Tamara Starblanket’s book provides a much needed
examination and critique of the ‘residential school’ system that
forcibly transferred Indigenous children from their families,
communities, and nations into institutions run by the colonizer
state—in this case, Canada. Despite the fact that the United
Nations 1948 Convention on Genocide explicitly includes
‘forcibly transferring children of the group to another group’ in
its definition of ‘genocide,’ there are those who deny that the
colonial ‘civilizing’ project amounted to genocide. Starblanket
demonstrates that the residential schools in fact aimed at
destroying the most intimate level of Indigenous life—the child-
parent relation—employing brutal beatings, solitary
confinement and other horrible punishments, often resulting in
children’s deaths. The goal of the schools was to prevent
Indigenous societies from perpetuating themselves. Though
officially repudiated, the residential schools produced a
continuing social and institutional legacy. Starblanket’s work
brings this history and its legacy effects to our awareness and
shows that ‘the road home’ requires an emphasis on
Indigenous self-determination.” Peter d’Errico,
Professor of Law, University of Massachusetts
“Tamara Starblanket has skillfully taken on one of the most
difficult and contentious issues, genocide. With intellectual
courage and determination, she has approached the issue
from the perspective of a Cree woman, scholar, and attorney
who has first-hand knowledge of the deadly and destructive
intergenerational impacts of Canada’s domination and
dehumanization of Original Nations and Peoples.” Steven T. Newcomb (Shawnee, Lenape),
author, Pagans in the Promised Land Decoding the
Christian Doctrine of Discovery
“This is heavy stuff, about which much more should be said,
and Starblanket is unsparing in saying it…I am proud to call
her sister, and to thank her.” from the Preface by Ward Churchill,
author, A Little Matter of Genocide
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 19th 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.
We would liken this district to an animal, and our village, which is situated in it, to its heart. Lorne Creek, which is almost at one end of it, may be likened to one of the animal’s feet.
We feel that the whitemen, by occupying this creek, are, as it were, cutting off a foot. We know that an animal may live without one foot, or even without both feet; but we also know that every such loss renders him more helpless, and we have no wish to remain inactive until we are almost or quite helpless
We have carefully abstained from molesting the whiteman during the past summer. We felt that, though we were being wronged and robbed, as we had not given you the time nor opportunity to help us, it would not be right for us to take the matter into our own hands. Now we bring the matter before you, and respectfully call upon you to prevent the inroads of any whiteman upon the land within the fore-named district.
In making this claim, we would appeal to your sense of justice and right. We would remind you that it is the duty of the Government to uphold the just claims of all peaceable and law-abiding persons such as we have proved ourselves to be. We hold these lands by the best of all titles. We have received them as the gift of the Creator to our Grandmothers and Grandfathers, and we believe that we cannot be deprived of them by anything short of direct injustice.
In conclusion, we would ask you, would it be right for our Chiefs to give licenses to members of the tribe to go to the district of Victoria to measure out, occupy, and build upon lands in that district now held by whitemen as grazing or pasture land? Would the whitemen now in possession permit it, even if we told them that, as we were going to make a more profitable use of the land, they had no right to interfere? Would the Government permit it? Would they not at once interfere and drive us out? If it would not be right for us so to act, how can it be right for the whiteman to act so to us?
—Gitwangak Chiefs, 1884
As copied from the book, Colonialism on Trial: Indigenous land rights and the Gitksan and Wet’suwet’en sovereignty case, New Society Publishers, 1992
75% of reports to Committee on racial discrimination sent by Indigenous organizations.
Last week, Canada switched arrogance and condescension for gestures of off-kilter desperation at the Assembly of First Nations’ general assembly. That is probably because on August 14 and 15, Canada will be under the microscope at UN headquarters in Geneva. Fifteen Indigenous Peoples’ organizations have already submitted extensive reports for the Session, detailing Canada’s “seek and destroy” approach to their internationally recognized human rights.
It is a typical Canadian tactic to invent meaningless distractions right before a review by a UN treaty body: their delegates to the Session can then reply to the Committee’s independent experts by talking about “initiatives” or “joint meetings” which do not substantially exist, instead of answering directly.
This time Canada sent four federal ministers to the AFN’s annual assembly, July 25-27, where they implied that Ottawa is going to rescind the Indian Act. Bennett (Minister of Indigenous Affairs), Wilson-Raybould (Minister of Justice), McKenna (Environment) and Goodale (Public Safety), all made vague references to bright promises yet to come.
The only concrete message from Ottawa to the AFN Chiefs – only half of whom showed up at the all-expense-paid meeting in Regina – was that it will no longer claw back unused capital funds to First Nation communities after twelve months of dispersal.
This miserable material figure can and should be unsuccessfully compared to the immaterial, yet golden, future intimated by Bennett’s and Wilson-Raybould’s reported remarks. “How will your nation and Indigenous government be organized? What is your territory?” Their remarks, on the other hand, will certainly be judged against the picture of Indigenous life under Canada which has been detailed in reports to the UN CERD.
“ Skeena watershed and coastal Indigenous communities depend on the salmon for food, their economies and cultures. This (LNG, Prince Rupert) project is a prime example of what’s wrong with Canada’s approach to engaging Indigenous communities in large-scale industrial developments: It continuously fails to honour the legal obligations to Indigenous Peoples in protecting their traditional resources; The Canadian government generally consults with Band Councils, which were created under the colonial Indian Act, and often fails to consult hereditary leadership or respect traditional governance systems; …”
It is interesting to note that only weeks after this report to the CERD was posted for the Session, Petronas announced its withdrawal from this proposed project, “Pacific NorthWest LNG.”
The UN Committee for the Elimination of Racial Discrimination has dealt Canada sharp rebukes over the last two decades: stop extinguishing Indigenous Peoples’ titles; stop ignoring murderers who target Indigenous women; stop trying to destroy the Lubicon Cree to get oil access.
The UN treaty bodies have an internationally recognized judicial power to issue recommendations to member states in keeping with upholding international human rights conventions. Each committee periodically receives reports from the state under review, and also from non-governmental organizations, civil society, academia, and now from Indigenous Peoples’ organizations.
It is typically the reports from Indigenous Peoples and NGOs which have, in the past, resulted in strong recommendations from UN Committees to Canada. Many of those have produced changes in the government’s behaviour, although such changes have been isolated and usually only in direct connection to the issues reported. In British Columbia this includes instances of forgiveness of government treaty negotiation loans to small Bands; dissolution of treaty societies formed to negotiate in the BC treaty process – against community members’ protests; and possibly the current standstill in BC Treaty Commission business altogether.
Extinguishment “negotiations” are an ongoing problem that is at the center of the CERD’s focus on Canada:
“There are no viable options other than legal court action to counter the BCTC “treaty” process about these overlaps into St’át’imc territory. As negotiations with the outside First Nations progress, the eventual outcome will be the extinguishment of significant portions of St’át’imc territory without the St’át’imc having been involved in any negotiations to this effect.”
In contradiction to the Interior Alliance’s extensive documentation of the extinguishment effect of Canadian “negotiations,” however, Minister Wilson-Raybould remarked to the press on her government’s plans: “They are explicit in rejecting certain long-standing federal positions—such as the focus on extinguishment, surrender or denial of rights.” Incidentally, that’s what Canada told the CERD in 2007.
Extinguishment, surrender and denial are precisely what Canada offers Indigenous Peoples. There is a veritable firestorm of examples of this, enveloping Indigenous Peoples. It is highly suspect that a Canadian Minister climbs a prominent national stage and says “we’re just about to change,” (again) only days before Canada has to answer a lot of very pointed questions in front of the world.
Consistent Canadian practices are to assimilate and co-opt economic development, to municipalize isolated communities under provincial legislation, to criminalize traditional economies, to rigidly maintain dependency by an overbearing and constantly metamorphosing bureaucracy which can never be finally functional. There is the “First Nations Land Codes” – where a community votes to recognize Canadian supremacy in its traditional territories, just for the privilege to enjoy managerial duties on-reserve. There are the “Strategic Land Use Planning Agreements” – where communities have shared maps of their territories showing cultural values and inadvertently given tacit approval to development in huge “low cultural value” lands. In the national Inquiry into Missing and Murdered Indigenous Women, crucial voices have undoubtedly been denied. Indigenous Peoples’ rights under Article 1 of the International Covenants on Civil and Political, and Social, Economic and Cultural Rights are completely denied. Canada specializes in the forcible removal of Indigenous children from their homes and communities, requiring parents and families to submit and surrender to provincial courts which have no jurisdiction whatsoever in the case of children and families who are not Canadian until they produce a referendum from their nation joining Canada.
Minister Wilson-Raybould, apparently speaking for those Indigenous individuals who have exercised their right to choose a nationality, appealed to the Chiefs to imagine their future as Canadians whose Indigenous rights are recognized and respected.
Ultimately, the Supreme Court of Canada expresses the state’s right to own Indigenous nations it has no treaties with. It is certainly a matter of interest in any investigation of racial discrimination. Apparently the key to Canada’s jurisdiction over nations with which it has no constructive agreements is owing to the fact that the British monarch, appointed by the Christian god, had sent a sailor with orders to discover and possess others’ lands in His name, and he was successful in this because the Christian god was superior, so the Supreme Court of Canada seems to say, to any of the existing nations’ gods. We know it is the presence of other Christian nations which is at issue in the matter of the Canadian court’s opinion on sovereign possession, because the issue was finally settled in 1846, according to Canadian judges, when the USA agreed in the Oregon Treaty to withdraw from pursuing any interests north of the 49th parallel. From that date, Great Britain and now Canada enjoys sovereign possession of all lands from the Pacific Ocean to the Atlantic Ocean above that parallel, except Alaska, as per SCC, because all other Christian nations had, by that time, also promised Great Britain they would pursue no interests there.
Unfortunately for that internationally repugnant display of Canadian faith, which is the state’s current legal precedent, it is not clear that any Indigenous Peoples have formally joined and adhered to Canada. Wilson-Raybould was referring to that popular understanding among the Chiefs. The CERD has been made aware of that understanding, and again in the reports for this Session:
“In particular, we bring to the Committee’s attention the state’s use of its own imposed Indian Band administration, under the Indian Act, on the state-defined Indian Reserve, to manufacture the appearance of Líl’wat consent to Canada’s disposal of the remainder of Líl’wat customary titles to lands and wealth outside the Reserve.
“Líl’watmc ask that the Committee question Canada about the origins of any rights of jurisdiction it may have in relation to Líl’wat which could justify Canadian licensing and development without the consent and against the Interests of the Líl’watmc under the Convention, and resulting in the continuing displacement and dispossession of Líl’wat.”
Líl’wat report to UNCERD, July 2017, with the International Human Rights Association of American Minorities
The picture developed by fifteen Indigenous Peoples’ organizations shows Canada’s unabated attempts to assimilate Indigenous Peoples – their worldview, identity, economies, individuals, children, histories, and especially their lands and natural wealth – into Canada. Unilateral, non-consensual assimilation is categorically prohibited as a matter of human rights norms, and yet that end of the spectrum of Canada’s colonization is not the worst.
“If Ontario and Canada insist on excluding us from meaningful consultations on the Agreement in Principle, then we insist that Canada and Ontario exclude the areas where our First Nations’ asserted Aboriginal title and rights overlap with the “Algonquins of Ontario” claims, or at least suspend negotiations over such areas, until such time as we have engaged in meaningful consultations and reached an acceptable accommodation.
“Despite our objections in March 2016, the “Algonquins of Ontario”, Canada and Ontario have proceeded to hold a referendum vote on the AIP.”
“How does one start to describe the horrific conduct of Canada in their relentless efforts to extinguish the rights of Indigenous peoples within their ancestral homelands?”
“While the Supreme Court of Canada has determined that the Canadian and provincial governments have a duty to consult, negotiate, and accommodate Indigenous rights, the governments use these consultation and negotiation processes to coerce, terrorize, terminate, extinguish, and discriminate against Indigenous peoples and our rights.”
“Asubpeeschoseewagong Netum Anishinabek, also known as Grassy Narrows First Nation, is located on the English-Wabigoon River system in North Western Ontario, and is infamous for mercury contamination from an upstream pulp and paper mill. … In 2016, a former mill worker came forward to confess the mill had illegally buried barrels of waste along the river, leading to the persisting contamination and inability of the river system to recover naturally.”
“On November 29, 2016, the Canadian Federal Cabinet directed the National Energy Board to approve the Kinder Morgan Trans Mountain pipeline expansion. This pipeline poses an unacceptable risk to the health, safety and livelihoods of First Nations throughout British Columbia, and will contribute to the negative environmental and health impacts experienced by Indigenous Peoples downstream of the tar sands, and of all peoples throughout the world as a result of accelerating global climate change. The Tsleil-Waututh, Squamish, Musqueam, Coldwater, Upper Nicola, Stk’emlupsemc te Secwepemc, Aithchelitz, Shxwhay Village, Yakweakwioose, Kwawkwaw-apilt, Tzeachten, Skowkale, Soowalie, and Squiala peoples have commenced legal proceedings seeking to challenge the federal approval for the Trans Mountain project… It is well established that diluted bitumen contains toxic chemicals that are a threat to drinking water, health, and the well-being of salmon and other beings.”
Minister Bennett, for the federal department of Indigenous and Northern Affairs, said to the AFN Chiefs last week: “We want to partner with you on building on the strengths and assets you have in your communities. You have the power to determine the future of your communities.”
The international community is quite aware that Canada still wishes to build on the strengths and benefits belonging to Indigenous communities, whether Canada co-opts the participation of those communities through “benefits sharing” or “land management” or other agreements achieved under duress. The international community is also aware that Indigenous Peoples have the power to determine the future of their communities, and that Minister Bennett and her government may well have nothing to do with that.
As the Union of BC Indian Chiefs’ report articulated, “We are presently witnessing a great divide between the words of the Canadian government and its actions on the ground. We would like to highlight the term “rights ritualism” for the consideration of the Committee in respect to Canada’s present actions: a way of embracing the language of human rights precisely to deflect real human rights scrutiny and to avoid accountability for human rights abuses. Countries are often willing to accept human rights treaty commitments to earn international approval, but they resist the changes that the treaty obligations require.”
“We know the Creator put us here. We know our Creator gave us laws that govern all our relationships to live in harmony with nature and mankind; defined our rights and responsibilities.
“We have the right to govern ourselves and the right to self-determination. Our rights and responsibilities cannot be altered or taken away by any other nation.
“We have our spiritual beliefs, our languages, our culture, and a place on Mother Earth which provides us with all our needs.
“We have maintained our freedom since time immemorial. …We declare and affirm to the people that… the Xwe-Nal-Mewx have held and till hold title to all lands, waters and resources within our traditional territories. ….”
We, the undersigned members of the Tahltan tribe, speaking for ourselves, and our entire tribe, hereby make known to all whom it may concern, that we have heard of the Indian Rights movement among the Indian tribes of the Coast, and of the southern interior of B.C.. Also we have read the Declaration made by the chiefs of the southern interior tribes at Spences Bridge on the 16th July last, and we hereby declare our complete agreement with the demands of same, and with the position taken by the said chiefs, and their people on all the questions stated in the said Declaration, and we furthermore make known that it is our desire and intention to join with them in the fight for our mutual rights, and that we will assist in the furtherance of this object in every way we can, until such time as all these matters of moment to us are finally settled. We further declare as follows:—
Firstly—We claim the sovereign right to all the country of our tribe—this country of ours which we have held intact from the encroachments of other tribes, from time immemorial, at the cost of our own blood. We have done this because our lives depended on our country. We have never treated with them, nor given them any such title. (We have only very lately learned the B.C. government makes this claim, and that it has for long considered as its property all the territories of the Indian tribes in B.C.)
Secondly--We desire that a part of our country, consisting of one or more large areas (to be erected by us),be retained by us for our own use, said lands and all thereon to be acknowledged by the government as our absolute property. The rest of our tribal land we are willing to relinquish to the B.C. government for adequate compensation.
Thirdly—We wish it known that a small portion of our lands at the mouth of the Tahltan river, was set apart a few years ago by Mr. Vowell as an Indian reservation. These few acres are the only reservation made for our tribe. We may state we never applied for the reservation of this piece of land, and we had no knowledge why the government set it apart for us, nor do we know exactly yet.
Fourthly–-We desire that all questions regarding our lands, hunting, fishing, etc., and every matter concerning our welfare, be settled by treaty between us and the Dominion and B.C. governments.
Fifthly—We are of the opinion it will be better for ourselves, also better for the governments and all concerned, if these treaties are made with us at a very early date, so all friction, and misunderstanding between us and the whites may be avoided, for we hear lately much talk of white settlement in the region, and the building of railways, etc., in the near future.
Signed at Telegraph Creek, B.C., this eighteenth day of October, nineteen hundred and ten, by