The Canadian government loves talking about reconciliation but is it in a position to do so?
On January 7, a heavily-armed RCMP force raided a camp set-up to block TransCanada Corp. (the company changed its name to TC Energy on January 9) from building a natural gas pipeline through unceded Wet’suwet’en territory.
The Wet’suwet’en people have occupied their territory since time immemorial. They have never given up rights and title to their land, nor have most of the other nations in the area known as British Columbia.
The British colonial government simply took this land, and denied that the original inhabitants had rights and title to it.
However, in 1997, the Supreme Court of Canada dismissed this claim in Delgamuukw v. BC. The court ruled that the B.C. government had no right to extinguish the Indigenous peoples’ rights to their ancestral territories.
The hereditary chiefs of the Gitxsan and Wet’suwet’en people fought this all the way up to the Supreme Court and won.
It is important for those of us living in Canada to understand the implications of this decision.
Delgamuukw v. BC Supreme Court defined Aboriginal title as “Indigenous peoples’ exclusive right to the land, and affirmed that Aboriginal title is recognized as an ‘existing Aboriginal right’ in section 35 of the Constitution Act, 1982.”
Of course there are limitations to what the Supreme Court can rule on, since it is part of the “Crown.” Since the Crown brought the Supreme Court into existence, the court cannot rule on the legality of the Crown in Canada itself and the way the Crown claimed sovereignty over Indigenous lands in North America.
Therein lies the problem.
As an internationally-recognized scholar of Indigenous legal traditions and Aboriginal rights, John Burrows points out in his definitive study of the Delgamuukw case, “It does not make sense that one could secure a legal entitlement to land over another merely through raw assertion.”
Similarly, Chief Justice Marshall of the United States Supreme Court once observed, it is an, “extravagant and absurd idea.”
All the assertions and doctrines Canadian governments have used to justify colonization can be boiled down to: Canada stole it, fair and square. This, of course, is not a solid base to build legal title, it is however the legal foundation of Canada.
Confused? Upset? I would be surprised if you weren’t. Maybe this knowledge might change a few long-held impressions about Canada.
What happened on January 7 shows the government’s disregard of the key findings of the Delgamuukw case:
1) “When it comes to occupation of Indigenous territory before the declaration of Crown sovereignty, it is sufficient to say that occupied land was integral to the Indigenous culture at the time of contact.
2) “If present occupation is invoked as evidence of occupation before sovereignty, there must be a continuity between present occupation and occupation before the declaration of sovereignty. However, it is not necessary to prove a perfect continuity; the demonstration of a substantial maintenance of the bond between the people and the territory is sufficient. In this respect, the Supreme Court held that oral evidence could be admitted as proof.
3) “At the time of declaration of sovereignty, this occupation must have been exclusive. This means that the land had to have been the exclusive territory of an Indigenous nation, although they could have shared it with another Indigenous nation.”
Delgamuukw, by the way, was also the first case in which the Supreme Court gave standing to hereditary chiefs, acknowledging that hereditary chiefs have always been the leaders within Indigenous communities.
What role do the elected band councils play you might ask?
The elected chief and council system was implemented through the Indian Act, it was and is a way to divide Indigenous communities. Elected band councils rely on the Ministry of Indian and Northern Affairs for funding, which inherently shifts the power of these “democratically-elected officials” in favour of cooperation with the government. This imposed leadership structure was created as a colonial instrument and continues to act as one. It explains, at least in part, why elected band councils signed onto the TransCanada LNG pipeline project. If councils didn’t sign on, they risked seeing their funding cut by the ministry, resulting in greater hardship for themselves and their communities.
Hereditary chiefs carry inherited responsibility over their full territories. Elected band councils, on the other hand, function through the provisions of the Indian Act and are responsible for the day-to-day business on reserves.
Hereditary chiefs have provided continuous leadership in Indigenous Nations, just like successive monarchs have done for the British.
After the Delgamuukw case, the Supreme Court took its decision further with the Tsilhgotin case in 2014.
Through this case, the court confirmed that Indigenous title applies to the whole Indigenous territory, not just “postage stamp” sized reserves. Secondly, the court confirmed that the Tsilhgotin can manage their lands according to their own laws.
You would expect this ruling to give Wet’suwet’en and any other Indigenous Nation similar powers. Not in Canada, successive federal governments have ignored court rulings, even section 35 of its own constitution, as it tries to extinguish Indigenous rights and title.
Today it uses the “Reconciliation Framework Agreements” for the same purpose. It is the same political agenda, just under a different name.
In light of so many rulings confirming Indigenous rights and title, why did the courts issue an injunction in favour of TransCanada that led to the raid on the Wet’suwet’en camp? This, just half a year after parliament stood and voted to adopt the United Nations Declaration on the Rights of Indigenous Nations. We need to keep asking, demanding answers to these questions.
We also need to come back to our initial question: can Canada talk reconciliation in the face of what happened on January 7?
I don’t think it can.
The RCMP raid on the Wet’suwet’en camp has made it very clear: this country’s political class continues to ignore the legal reality of Indigenous rights and title in Canada.
Before non-Indigenous people can engage in a process of reconciliation, we have to accept the harsh truth of how poorly Indigenous people have been treated in Canada from the moment of first contact. We also need to acknowledge that this treatment continues.
I am not saying that Canadians should be walking around feeling shame and guilt for this system. We must, however, at least, take the step to condemn colonialism and commit to make right what is wrong. We must choose to enter into a sincere process of decolonization.
That is true reconciliation. That is committing to building a better and just Canada.