Category Archives: Indigenous Issues

Over Representation of Indigenous people in Canadian jails and prisons.

criminal Justice, Indigenous Issues, racism

 

In April 1988, the Manitoba Government created the Public Inquiry into the Administration of Justice and Aboriginal People, commonly known as the Aboriginal Justice Inquiry (‘AJI’). The co-Chairs of the AJI were Associate Chief Justice Hamilton of the Court of Queen’s Bench and Judge Murray Sinclair at the time the Associate Chief Judge of the Provincial Court. Murray Sinclair later served as the Chair of the Truth and Reconciliation Commission and is now a Senator of Canada.

The Inquiry was created in response to two main incidents:

  • the trial in November 1987 of two men for the 1971 murder of Helen Betty Osborne in The Pas. Allegations were made that the identity of four people present at the killing was known widely in the community shortly after the murder.
  • The death (March 1988) of J.J. Harper, executive director of the Island Lake Tribal Council, following an encounter with a Winnipeg police officer. Many people, particularly in the Aboriginal community, believed many questions about the incident were left unanswered by the police service’s internal investigation.

The Inquiry issued its report in the fall of 1991. I was a bencher of the Law Society of Manitoba at the time. The Law Society is the governing body of the legal profession of Manitoba tasked with regulating the legal profession in the interests of the people of Manitoba. I am not proud to say what our governing body did with that report after it was delivered in 1991. The short answer is not much. Our inaction is part of the problem. I understand that now. I did not really appreciate it then, as did few of my colleagues.

The report of the AJI was one of the first reports to draw serious attention to the over representation of indigenous people in Manitoba’s jails and prisons. Almost 30 years later on the CBC radio program The Sunday Edition, which aired on August 2, 2020, guest host Elamin Abdelmahmoud asked Murray Sinclair, now a Senator, some pointed questions. He asked him this, “Senator you were one of the first judges to write about the over representation of indigenous people within the criminal justice system. You did this way back in the 1990s. Why has so little changed this since?”

The answer might surprise you. It surprised me. This is what he said in reply,

“Actually there has been quite a significant change, but the change has been upwards. When we reported on the over representation of indigenous people, the number of indigenous people in provincial jails in Manitoba was just around 60%. About 62%. Now it’s over 77%! And in the case of indigenous women represented about 78% of those who are incarcerated in the case of the AJI report, now its well over 90%! And youth numbers have gone up as well.”

Of course even these glaring figures don’t tell the whole story. In Manitoba  75% of all prisoners are indigenous and across Canada indigenous people make up a 25% of the prison population despite the fact that they represent only 4% of the country’s population. I think the percentage is about 11% in Manitoba.

Not only is this horrendous we have to understand the intergenerational impact of locking up so many indigenous people. Some more shocking numbers might make that clear too. Whether or not indigenous children themselves get involved with the Canadian justice system, indigenous children are 12 times more likely to have their family life disrupted by an agency of government such as a police officer or Child Welfare officer or some official who shows up at their house and takes somebody away or threatens to do so. These are horrendous disruptions and affect children powerfully. As Senator Sinclair said,

“You become the subject of a social control system virtually from the time that you are born until the time you yourself become an adult. So that impact is quite dramatic. You basically come to dislike or distrust those agencies who are doing that because as a child first of all you don’t understand what is going on, but more importantly you often get to resent it because you know that the person being dealt with often is a person that you don’t want taken away and you don’t want to lose in your live and yet you do. Or you yourself get taken out of the household and you don’t want that to happen and you know that things can always be fixed if only somebody would do the right thing and help the family”

Helping families is that not what it should be about?

Does anyone out there suggest that such massive over representation of indigenous people in jails  and prisons is a sign of systemic racism? Is there any other reasonable explanation?

Health of Children in Indian Residential Schools of Canada

Indigenous Issues, racism

Two faithful readers have asked me to comment on issues relating to the health of indigenous children in Canada’s Indian Residential Schools (as they were called). (See my post “Manitoba makes New York City  look good” The issues are incredibly important and reflect very poorly on Canada so I have chosen to respond in a separate post.

According to the report of the Truth and Reconciliation Commission (‘TRC Report ), “The Death rates for Aboriginal children in residential schools were far higher than those experienced by members of the general Canadian population.” It must be remembered and emphasized that indigenous children were taken out of their homes and communities against their will presumably to be educated for their benefit. To then learn that while under the custody and control of the national government and its agencies, such as various churches, children were dying at staggering rates is incredibly disturbing. I will be blogging about this again in the future.

Tuberculosis was a particular problem for indigenous children. According to that TRC Report,

 

“The tuberculosis health crisis in the schools was part of a broader Aboriginal health crisis that was set in motion by colonial policies that separated Aboriginal people from their land, thereby disrupting their economies and their food supplies. This crisis was particularly intense on the Canadian Prairies. Numerous government policies contributed to the undermining of Aboriginal health. During a period of starvation, rations were withheld from bands in an effort to force them to abandon the lands that they had initially selected for their reserves. In making the Treaties, the government had promised to provide assistance to First Nations to allow them to make a transition from hunting to farming. This aid was slow in coming and inadequate on arrival. Restrictions in the Indian Act made it difficult for First Nations farmers to sell their produce or borrow money to invest in technology. Reserve land was often agriculturally unproductive. Reserve housing was poor and crowded, sanitation was inadequate, and access to clean water was limited. Under those conditions tuberculosis flourished. Those people it did not kill were often severely weakened and likely to succumb to measles, smallpox, and other infectious diseases.

For aboriginal children, the relocation to residential schools was generally no healthier than their homes had been on the reserves…”

 

In April 2007, Bill Curry and Karen Howlett reported in the Globe and Mail as follows:

“As many as half of the aboriginal children who attended the early years of residential schools died of tuberculosis, despite repeated warnings to the federal government that overcrowding, poor sanitation and lack of o medical care created a toxic breeding ground for the rapid spread of disease.”

Think about that. Half the children died from TB!

Anthony Hall in his book Earth into Property: Colonization, Decolonization, and Capitalism referred to the schools as “death traps.”

Dr. P.H. Bryce prepared astonishing reports to the federal government about the schools in 1907 and 1909 in which he drew to the government’s attention the shocking death rates of children and that these death rates could be drastically reduced by the implementation of simple and inexpensive changes such as improved ventilation and sanitation, filtering entering students for contagious illness, and isolating sick individuals away from crowded dormitories. He called Canada’s administration of the Indian residential schools  a “national crime.” That is precisely what it was.

The government responded that it was “too expensive”. After all why spend so much money to save the lives of Indian children?

 

Manitoba Makes New York City Look Good

Indigenous Issues, racism

 

I recently posted about children in care in Manitoba about some amazing statistics. The statistics were pretty grim. (See Children in Care https://themeanderer.ca/children-in-care ) Manitoba has more children in care than any other province of Manitoba. In fact it has about 25% of all the children in care in Canada. About 90% of those are aboriginal children. And Manitoba is far from the largest province. Why is that?

A friend of mine then commented that this was worse than New York City. I want to repeat this so it sinks in. Things are worse—much worse—than New York City. This is what he said,

 

“for purposes of comparison……
new york city – population 8.5 million, foster care population 8,300.
manitoba – population 1.3+ million, foster care population 11,000.

in other words manitoba total population adjusted for comparison to total nyc population would mean an “equivalent” foster care population in sunny manitoba of 75,000+, or a stunningly increased rate in comparison.”

no doubt, as 1st nation peoples throughout the humane country of canada have said repeatedly, this stinks and reflects ongoing racism ala the residential school debacle among many other things.”

Manitoba with less than 20% of the population has more children in care than New York City! And most of those children are Indigenous Children. To have the same percentage of children in care compared to its population , New York City would have to increase is population of children in care 10 times. What is up with that?

How can anyone deny that we have systemic racism in Manitoba?

Whose fault is that so many indigenous children are “in care”?

Indigenous Issues, racism

 

Some people might say it is clearly the “fault” of Indigenous peoples that so many indigenous children are “in care.” But even if it is true, what is the context of that “fault”? In other words, I would suggest the context is the colonial history of Canada and its powerful legacy in which Indigenous people have been subjected to colonialism for generations in a system in which they were systematically disrespected, marginalized, and taught to disparage their own child caring abilities and self-worth while undermining their cultures, independence, and capacity to  for care for children. Children were taught that their parents were incompetent parents. It cut the bond between parents and children with resulting immeasurable harm.

So the children were taken away “into care” as earlier they were taken away from their parents and put into residential schools. For generations, many of the  indigenous children were taken away from their parents and sent to Residential schools where indigenous youth were not allowed to speak their own language, to participate in their own culture, while they were separated from their families. Often they were not allowed to speak to other members of the family. They were taught that their parents were not worthy parents.

As a result, the indigenous children lacked role models for parenting as a result. Therefore, later, when they in turn became parents they did not know how to be good parents. Most of us in white society had good models. We were lucky. We benefited from the system. Indigenous children were victims of that same system. At the same time, as if that rupture was not enough, in residential schools the indigenous children often suffered the debilitating effects of abuse, exploitation, and resulting trauma. The awful results have cascaded through the generations and all of us are paying the price for that trauma.

The modern system of putting children “in care” is not a big improvement over the residential schools. Some people even think it is worse. The children are often not put with loving parents or family members. They are given to the custody of people who are paid to care for them. Often the transactions are cold. Not the best situation for young children. As the former federal minister of Indigenous Services Jane Philpott said,

“This is very much reminiscent of the residential school system where children are being scooped up from their homes, taken away from their family and we will pay the price for this for generations to come.”

 

This is not what commonly happens to white children. White children are treated differently in the system than indigenous children. That is what a racist system is all about. It exists. It is real. But many whites don’t see it. We don’t see our own racism.

No Truth no justice: Political Leaders speak about racism

Indigenous Issues, racism

 

Recently the Prime Minister of Canada asked all of Canada’s provincial and territorial leaders to sign a joint declaration condemning racism. However some Premiers were unwilling to do that unless the statement did not refer to systemic racism. They did not want to admit that there is systemic racism in Canada. So that expression was left out. Did this make senses?

The Premier of Quebec Francois Legault said he does not believe “in the existence of systemic racism in Quebec.” Manitoba’s Premier Brian Pallister argued that it was not necessary to use the word “systemic” because it was implied. He did not admit that he was one of the Premiers who refused to sign the declaration with that word in, but many think he was.  Is it a dirty word? If it is implied as Pallister suggests, why not make it explicit? Isn’t it time to be honest? We will never tackle racism until we openly acknowledge we have it. We can’t confront it unless we do so honestly. This is no time to get tricky with the wording.

Some of my friends have challenged my view that in Canada we have a system of racism. I have been trying to respond to the challenge. It will take some time however to do that thoroughly. I have been wondering if perhaps we do not agree on a common definition of system racism.

Dan Lett of the Winnipeg Free Press had an interesting recent comment on this issue:

“The concept of “institutional racism” was first expressed by Stokely Carmichael and Charles V. Hamilton in their 1967 book, Black Power” the Politics of Liberation. The authors argued there needed to be a distinct recognition of “less overt, far more subtle” forms of racism that were present “in the operation of established and respected forces in society.

Over the decades since the idea was first cast, social science has proven systemic racism is hardly theoretical. People of colour in countries around the world are regularly subjected to race-based bias in everything from health care to financial services, education, employment, income, and housing. The data is abundant and incontrovertible.

In the face of all this evidence, the mostly white people who dominate the “established and respected forces in society” have tried to suggest—as Legault did in his comments—systemic racism means a system where everyone in it is a racist. In making this argument Legault is trying to portray the idea of systemic racism in indemonstrable terms.”

 

I agree. I don’t think everyone in Canada is a racist, though I think we live in a racist system. Like Lett I think the evidence for that is “abundant and incontrovertible.” I have been trying to demonstrate that in my posts.

It is important for us to acknowledge the truth and by that I mean the whole truth. We have had many racists in this country. We still do. But just as important we must acknowledge the system of racism too.

Senator Murray Sinclair, formerly a justice of the Court of Queen’s Bench in Manitoba, and most well known for heading the Truth and Reconciliation Commission of Canada, led an inquiry into the Thunder Bay Police Service and reached the conclusion “systemic racism exists in the TBPS at an institutional level.” He was interviewed by the Globe and Mail where he said, it is ultimately pointless to acknowledge racism without also dealing with its systemic constructs. I explained to them that it’s the system itself that is founded upon beliefs and attitudes and policies that virtually force even the non-racist person to behave in a racist way. If you get rid of all the racists in every police force, you’ll still have a system racism problem.”

Lett was quite critical of Manitoba’s Premier for failing to acknowledge publicly the systemic problem of racism. Here is what he said,

“Offering to address a problem while denying one of the major ways it exists is one of the last refuges of cowards. It’s a pathetic attempt to done the robes of progressives while performing the quiet work of an agent of the status quo.’

Those are tough words, but I believe appropriate.

In the report of Canada’s Truth and Reconciliation Commission Report one of the descendants of Survivors (of Residential Schools) Daniel Elliot put it well and succinctly to the Commission: “I think all Canadians need to stop and take a look and not look away.”

The Truth and Reconciliation Report itself said, “Without truth, justice, and healing, there can be no genuine reconciliation. Reconciliation is not about ‘closing a sad chapter of Canada’s past,’ but about opening new healing pathways of reconciliation that are forged in truth and justice.”

No truth no justice. That’s how I put it.

 

Whose fault is that so many indigenous children are in care?

Indigenous Issues, racism

 

Some people  say it is clearly the “fault” of Indigenous peoples that so many indigenous children are “in care”. But even if it is true, what is the context of that “fault”?  I would suggest the context is the colonial history of Canada and its powerful legacy, in which Indigenous people have been subjected to colonialism for generations in a system in which they were systematically disrespected, marginalized, and taught to disparage their own child caring abilities and self-worth, while undermining their cultures, independence, and capacity to for care for children. Children were taught that their parents were incompetent parents. It cut the bond between parents and children with immeasurable harm that flowed from generation to generation.

So the children were taken away “into care” as earlier they were taken away from their parents and put into residential schools. It really is not that different. For generations, many of the children were taken away from their parents and sent to Residential schools where indigenous youth were not allowed to speak their own language, or to participate in their own culture, while they were separated from their families. Often they were not allowed to speak to other members of the family. They were taught that their parents were not worthy parents.

As a result, the children lacked role models for parenting as a result. Therefore, later, when they in turn became parents they did not know how to be good parents. Most of us in white society had good models. We were lucky. We benefited from the system. Indigenous children were victims of that same system. At the same time, as if that rupture was not enough, in residential schools the indigenous children often suffered debilitating effects of abuse, exploitation, and resulting trauma. The results have again cascaded through the generations and all of us are paying the price for that trauma.

The modern system of putting children “in care” is not a big improvement over the residential schools. Some people even think it is worse. Often the children are not put with loving parents or family members. They are given to the custody of people who are paid to care for them. As former federal minister of Indigenous Services Jane Philpott said,

“This is very much reminiscent of the residential school system where children are being scooped up from their homes, taken away from their family and we will pay the price for this for generations to come.”

This is not what commonly happens to white children. White children are treated differently in the system than indigenous children. That is what a racist system is all about. It exists. It is real. But many whites don’t see it. We don’t see our own racism. We take for granted a system that benefits us. It seems natural. It is not.

Children in Care

Indigenous Issues, racism

 

One of the scandals of Canadian society is the number of indigenous children in care in Canada. “In care” means that the children have been taken away from their parents on the basis that the parents are unfit to care for their children. In other words those children are taken from their parents and given over to foster parents, or in some cases, civil servants who take them to hotels. Often those children are taken to homes where they are not loved or even “cared” for. They are just there.

Of course sometimes this is necessary. It can happen to white parents and it can happen to indigenous parents. It should be rare. For white children and their parents it is rare. For indigenous children and their parents it is not rare.

About 50% of the total children in care are indigenous children! In a country where 4.9% of people in Canada self-identified as aboriginal in the last census that is an astonishing proportion of the children in care. in other words the rate of indigenous children in care is 10 times what one would expect based on population! More than 40,000 indigenous children are currently “in care” in Canada. This is more than the number of indigenous children were put into Residential schools.

Another shocking fact is that 25% of these indigenous children in care are in Manitoba. A small province like Manitoba has a quarter of the indigenous children in care.

Another surprising statistic is that 4% of indigenous children in care who are suffering from mental illness receive no treatment for their illness.

According to the former federal minister of Indigenous Services Jane Philpott, “The disproportionate number of Indigenous children currently in the child welfare system has created a “humanitarian crisis” in the country.”

Minster Philpott sent a letter to her provincial and territorial counterparts calling for “an emergency meeting” on indigenous children and family services. CBC News reported on it this way:

“We are facing a humanitarian crisis in this country where Indigenous children are vastly disproportionately over-represented in the child welfare system,” said Philpott in an interview Thursday with Power & Politics.

Philpott said in Manitoba, there are a total of 11,000 children in care and 10,000 are Indigenous children. Statistics Canada census data released last week revealed 4,300 Indigenous children under the age of four are currently in foster care.”

 

Here is another shocking statistic from Stats Canada: Aboriginal children accounted for 7.7% of all children aged 0 to 4, and about one‑half of all foster children in this age group.

 Think about these stats for a second. What do they signify? Such facts cannot possibly be explained on the basis of racist individuals. Such stark facts speak of a vast system of racism. In Manitoba 10 out of 11 children taken away form their parents and put “in care” are indigenous children. More than 90%. Too often where nobody actually cares about them.

O’odham Nation contact with Europeans

Indigenous Issues

As I write this blog, I am living in southern Arizona o the traditional territory of the O’odhan Nation. Often I visit San Tan Regional Park minutes from here to hike or attend talks or look for wild flowers. There is no general agreement about the origins of the O’odham nation. Some claim that they originally moved north from Mexico about 300 years ago.

The O’odham did not get along well with the Apache from the 17th century until the beginning of the 20th century. The O’odham were a settled agricultural people who raised crops for survival unlike the nomadic Apache. According to O’odham history (oral traditional knowledge) the Apaches frequently raided their settlements when they ran out of food because food was running short and hunting success was lacking.

When European settlers arrived things got worse. Though both now had a common enemy who seemed intent on grabbing all of their land it was difficult for their foes to cooperate. The O’odham word for Apache is ob, which means enemy.  Things were complicated because each from time to time worked with opposing European groups. Alliances just like those between Indigenous Nations in the North East, including Canada, made relations with European settlers (invaders)  complicated.

For example, in 1871, 92 O’odham joined the Mexicans and Anglo-Americans to fight the Apache. 144 Apache were killed in the Camp Grant Massacre. The dead consisted mainly of women and children. In fact 136 of the victims were women and children killed by the brave O’odham, Mexicans, and Anglo-Americans. 29 children were also captured and sold into slavery. To put this into perspective remember 1871 was 4 years after the Confederation of Canada. This is not ancient history. This is recent history. And it is not pretty.

Some historians claim that because there was a reduction of Indian hostilities in the region at that time, local merchants feared a looming economic crisis because they depended so heavily on Federal Government spending on supplies for their soldiers sent to pacify the nasty Indians, particularly Apache. In order to encourage support for more federal government support it was alleged, though not to my knowledge proven, that some local merchants initiated hostilities with the Apache leading to the attack on the Apache settlement at Camp Grant.

There is significant evidence that the O’odham and the Apache were friendly and engaged in trade. There is even evidence that they intermarried. Yet, at the same time O’odham oral history suggests that intermarriages actually resulted from raids between the two Native American groups. Those raids provided the successful party with women, children, and sometimes men, as slaves. Women would often marry into the tribe in which they were held captive and assimilated under duress. Sort of like the young girls captured by Boko Haram in the 21st century in Africa. Some things never seem to change. In any event, according to this oral history of the O’odham both Native American groups incorporated “enemies” and their children into their culture and this was done by force.

Historically, the Hohokam occupied a very large area of the southwest extending into the province of Sonora in Mexico, to north of Phoenix west to the Gulf of California and east to the San Pedro River. This land has been the home of the O’odham for thousands of years.

However, the arrival of Europeans starting in the 17th century became an increasing challenge to the O’odham. From early in the 18th century, foreigners occupied their land. First were the Spanish and later the Americans.

When Mexico became independent from Spain they colonized the O’odham. In 1853 with the Gadsden Purchase their land was divided nearly in half between the Mexicans and the Americans. That purchase was conducted, of course, between Mexico and the United States, but the real owners were the O’odham. It had been their land for many centuries, but that did not bother European colonizers or their offspring. The local people were mere inconveniences.

The Gadsden Purchase, or Treaty, was an agreement between the United States and Mexico, that was completed in 1854. Pursuant to that agreement the United States agreed to pay Mexico $10 million for a 29,670 square mile portion of Mexico that later became part of Arizona and New Mexico. The Americans wanted that land to complete a southern continental railroad and also to resolve lingering conflicts between the U.S. and Mexico following the Mexican-American War.

That agreement provided that the US would honor all land rights of Mexican citizens, which theoretically included the O’odham, and agreed that the O’odham would have the same constitutional rights as any other United States citizen. Of course, when the railroad was built and more and more settlers poured into the American Southwest and mining expanded more and more O’odham land was usurped by the Americans just as happened in many other places of the American west.

At first the O’odham were not even told about the sale of their land to the Americans. At  the time the border was not even strictly enforced. That border straddled O’odham territory as it does to this day.

In fact now Trump’s wall separates the O’odham who live in Mexico from those who live in the United States. Until then they had easy access between the two countries. The O’odham were not asked about that wall either. The Americans just built it. Some things never change.

A legal Quagmire

Indigenous Issues,

 

Until recently, purported Wet’suwet’en hereditary chiefs, who oversee 22,000 s.q. km of territory in British Columbia, have refused to allow the company Coastal GasLink access to their lands. According to the judgment of Madam Justice Church of the B.C. Supreme Court in the Coastal GasLink Pipeline Ltd. v. Huson, 2019  case that went to her court on the issue of granting an injunction to CoastalGasLink to stop them from blockading access to the land there is significant doubt as to whether or not the elected Chiefs and Councils  have the jurisdiction to decide whether or not the pipeline can be built on Wet’suwet’en land. This is what she said in her judgment in that case:

“The evidence before me indicates significant conflict amongst members of the Wet’suwet’en nation regarding construction of the Pipeline Project, including disagreements amongst the Wet’suwet’en people as to whether traditional hereditary governance protocols have or have not been followed, whether hereditary governance is appropriate for decision-making that impacts the entire Wet’suwet’en nation and the emergence of other groups, such as the Unist’ot’en, which purports to be entitled to enforce Wet’suwet’en law on the authority of Chief Knedebeas and more recently the WMC, which apparently seeks to challenge the authority of the hereditary chiefs to make decisions for the Wet’suwet’en nation as a whole and the manner in which the traditional governance processes have occurred.”

The WCM is Wet’suwet’en Matrilineal Coalition that has 5 board members  representing each of the five Wet’suwet’en clans. Each of the board members is either a hereditary chief or wing chief.

Sadly the case is a mishmash and I have a lot sympathy with the judge in that case who had to sort through the maze of conflicting facts. It really was not an application to the court to determine Aboriginal title. It was rather an application for an injunction which is determined on the basis of affidavit evidence and not evidence at a trial that becomes very difficult (when it is not impossible). The judge does not listen to witnesses, but only reads their written statements in affidavit form. Often there is no cross examination.

One of the major problems with this case is who speaks for the Wet’suwet’en people? The pipeline project has the support of 20 elected First Nation Councils along the proposed route, but the Wet’suwet’en chiefs say the authority of these groups only applies to reservations – not traditional territory.

We have to remember that the Indian Act provides for each recognized First Nation to have a Chief and Council and a reserve.  In return usually the First Nation ceded land to Canada so that Canada could have the ceded land for the development it wanted. In that way, it would have a solid root of title to pass on to European immigrants.

The Wet’suwet’en hereditary governance system predates colonization and continues to exist today. The Wet’suwet’en and Gitxsan Hereditary Chiefs, not the Indian Act Chiefs and Councils, were the plaintiffs in the landmark Delgamuukw-Gisday’way Aboriginal title case. I commented on that case earlier in this blog. In that case they provided the court with voluminous detailed historical evidence of the Wet’suwet’en and Gitxsan governance system and the legal authority of Hereditary Chiefs.

Unless otherwise authorized by the Indigenous Nation members, the authority of elected Chiefs and Councils is limited to the powers set out under the Indian Act. At least that is the position of the Wet’suwet’en Hereditary Chiefs. The Indian Act does not provide authority for a Chief and Council to make decisions about lands beyond the boundaries of the First Nation’s reserves. In the injunction case Justice Church acknowledged that this was the position of the Hereditary Chiefs but did not say whether or not she agreed with it.

By contrast, the Hereditary Chiefs are responsible under Wet’suwet’en law and governance for making decisions relating to their ancestral lands. It is these lands that the Hereditary Chiefs are seeking to protect from the impacts of the pipeline project, not Indian Act reserve lands.

Indigenous peoples hold rights to lands in Canada that extend far beyond the boundaries of Indian Act reserves, including Aboriginal title and rights to the lands they used and occupied prior to the arrival of Europeans and the assertion of Crown sovereignty. Aboriginal title and rights are protected under the Constitution Act, 1982 – the highest law in Canada’s legal system. But what that actually means in practice is often far from clear, and inevitably, in cases of dispute, requires a court, and often that means ultimately the Supreme Court of Canada, to make a ruling, as it did in the Tsilhqot’in  case that I have  also commented on in this blog. It was another of the landmark cases that went to all the way to the Supreme Court.

The Wet’suwet’en people, like most First Nations in British Columbia,  never entered into a treaty agreement with Canada whereby they disposed of all of all of their territory. As a result they take the position that Canada can’t claim it’s their land unless they have a purchase receipt with the crown. That is consistent with the Royal Proclamation of King George of England in 1763 that really is the basis of Canadian aboriginal law. Only the king (now Canada) could buy land from First Nations and if it did, then that land is owned by the Crown (the government of Canada) who can of course use that as basis for land grants to anyone it chooses, such as immigrants to Canada. Without such an acquisition from the First Nations by the Crown, the origin claims of the original owners must prevail.

I recognize that it is difficult for developers in such circumstances to figure out with whom it must consult. On the other hand, look at the corporate structure of Coastal GasLink and its international partners. That makes the Wet’suwet’en organization look like the simplicity of child’s play in comparison. But it is not enough to say that 20 Chiefs and Council have approved of the project. It is more complicated than that. In fact, it’s a legal quagmire. There is more than one such quagmire in this case.

Tsilhqot’in: If Aboriginal title is Established

Indigenous Issues,

In the Tsilhqot’in case, the Supreme Court found that the First Nation had successful established its claim to aboriginal title to the land in question. In other words, the First Nation owned the land when Europeans/Canadians first encountered them. It was not empty land free for the taking.

Where Aboriginal title has been established, the Crown must not only comply with its procedural duties, but must also justify any incursions on Aboriginal title lands by ensuring that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982. In order to interfere with that ownership right, this requires the government to demonstrate both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group.  The honour of the Crown demands this on the part of our government.

This means the government must act in good faith in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations, and the duty imposes an obligation of proportionality into the justification process: the government authorized incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact). Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group.  According to the Supreme Court, this s. 35 Constitutional framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.  In a day of reconciliation this is very important.    I think this is a rational balancing of rights and responsibilities in such cases. Don’t you?

In the Tsilhqot’in case it was successfully argued that the issuance by the Province of B.C. of the logging licences affecting the land in 1983 and onwards, before title was declared was unconstitutional.  The honour of the Crown required that the Province consult the Tsilhqot’in on uses of the lands and accommodate their interests before issuing such a license.  The Province did neither and therefore breached its duty owed to the Tsilhqot’in.

However, the issuance of timber licences on Aboriginal title land is a direct transfer of Aboriginal property rights to a third party and will plainly be a meaningful diminution in the Aboriginal group’s ownership right amounting to an infringement that must be justified in cases where it is done without Aboriginal consent.

I think similar issues might arise in the Wet’suwet’en case. We’ll see if I’m fright.