Category Archives: Indigenous Issues

Aboriginal Title: Tsilhqot’in Nation v. British Columbia

Indigenous Issues,

 

In 2014 in the case of Tsilhqot’in Nation v. British Columbia  the Supreme Court of Canada rendered its decision on one of the most fascinating legal question relating to indigenous people. Who owned the land of Canada when Canada became a country and claimed sovereignty over the land? Who owns that land now that has never been ceded to the government of Canada? Exactly this issue has become important again in the recent case involving Wet’suwet’en First Nation and CoastalGasLink Pipeline.

As the Royal Proclamation of King George said in 1763, only the English Crown could buy land from Indigenous people and it had to purchase the land. It could not acquire it by conquest. In time the government of Canada replaced the English crown. That was why the government of Canada was eager after Confederation in 1867 to enter into treaties with First Nations so that it could establish a solid root of title so that it could in turn grant unchallengeable titles to people immigrating here from Europe. It is a fundamental principle of English common law that no one can transfer a better title than he or she has. All titles are transferred with all defects attached.

Soon after Confederation, Canada started negotiating  with First Nations the numbered Treaties, as they are called, in central Canada and gradually moved west. For example, Treaty No. 1  was negotiated and entered into in August 1871 at Lower Fort Garry. A few of the Canadian communities sharing the obligations and benefits of Treaty No. 1 include: Winnipeg, Brandon, Portage La Prairie, Selkirk, Lundar, Grand Beach, Emerson, Winkler, the holy city of Steinbach, and many more. Treaty No. 3 includes Buffalo Point where we have a cottage. Canada has negotiated treaties with most First Nations in Manitoba. Unfortunately British Columbia does not have many treaties, because development of Canada spread west much faster than the Treaty making process could keep up. As a result much of B.C. is not covered by Treaties, but Indigenous people did live in those areas when Canadians arrived. This has left an awful vacuum in much of the country, particularly in BC. After all it  is more than 150 years since the treaty making process began. That is unfortunate now when companies like CoastalGasLink want to develop. With whom does it make a deal?

For centuries the Tsilhqot’in Nation, a semi-nomadic grouping of six bands sharing common culture and history, lived in a remote valley bounded by rivers and mountains in central British Columbia.  It is one of hundreds of indigenous groups in B.C. with unresolved land claims. In 1983, B.C. granted a commercial logging licence to a commercial group on land considered by the Tsilhqot’in to be part of their traditional territory.  The band objected and sought a declaration prohibiting commercial logging on the land.  Talks with the province reached an impasse and the original land claim was amended to include a claim for Aboriginal title to the land at issue on behalf of all Tsilhqot’in people.  Sounds a lot like the Wet’suwet’en case doesn’t it? The federal and provincial governments opposed the Tsilhqot’in title claim. 31 years later, the case ended up in the Supreme Court of Canada. The trial itself lasted a number of years!

In the end, the Supreme Court granted a declaration to the Tsilhqot’in of Aboriginal title over the area requested and granted  a declaration that British Columbia breached its duty to consult that it said was owed to the Tsilhqot’in Nation.

Even though the claimant to aboriginal title has the onus of proving that title, the court held the onus of proof had been discharged in that case. It held that the Tsilhqot’in First Nation had established Aboriginal title to the claimed area at issue.

 The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms.  The court held that aboriginal title flows from the original occupation by Indigenous people in the sense of regular and exclusive use of land.  To ground Aboriginal title “occupation” must be proved by that it that was sufficient, continuous (where present occupation is relied on) and exclusive.  In determining what constitutes sufficient occupation, which lies at the heart of that appeal, the court must look to the Aboriginal culture and practices, and compare them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation.  In other words how did people prove ownership in Canada when the west was settled?  Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the indigenous group exercised effective control at the time of assertion of European sovereignty or Canadian sovereignty.

While the Tsilhqot’in population was small there was evidence that the parts of the land to which it claimed title were regularly used by the Tsilhqot’in–i.e. there was sufficient occupation to base a claim for aboriginal title (ownership).  The geographic proximity between sites for which evidence of recent occupation was tendered and those for which direct evidence of historic occupation existed also supported an inference of continuous occupation.  And from the evidence that prior to the assertion of sovereignty by the Canadian government the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, the court concluded that the Tsilhqot’in treated the land as exclusively theirs.   The Supreme Court said it was not necessary for the First Nation to prove there was a specific, intensively occupied areas can support Aboriginal title.  The trial judge had sifted through mountains of evidence to support the claim. The court even acknowledged that some of the evidence was conflicting, but the preponderance of evidence supported the Tsilhqot’in claim.

The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.

Where a claim of aboriginal tittle is asserted by a group of indigenous people, prior to establishment of title, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such claimant groups.  This is very important for groups such as the Wet’suwet’en First Nation in its case. Yet, interestingly, these issues were not even considered by the court in the injunction case. Presumably this was because it was “only” an injunction case and not a full fledged hearing to determine the legitimacy of the claim for aboriginal title.

The level of consultation and accommodation required of the government varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.

Perhaps the reason the CoastalGasLink was not required to consult was that they were not aware of the assertion of ownership by Wet’suwet’en.

In any event this leaves open the question of whether or not the Wet’suwet’en First Nation owns the land on which the pipeline is proposed. If it does, the government of BC cannot on its own grant valid permits for construction on that land without the consent of the owner.

 

Delgamuukw v. British Columbia

Indigenous Issues, Law,

 

Since the Constitution Act of Canada was enacted in 1982 a number of important cases have gone all the way to the Supreme Court on the issue of Indigenous land claims and rights. Some of those cases bear heavily on the issues that Wet’suwet’en First Nation faces today.

Interestingly, one of those cases was Delgamuukw v. British Columbia which also included the Wet’suwet’en and their neighbours the Gitxsan or Gitksan. I have already commented on the Gitksan people earlier in this blog. See https://themeanderer.ca/gitxsan

In fact as I mentioned in that earlier post it was seeing them at  the Gitksan village in BC many years ago that first got me interested in Indigenous issues. Today, the Gitksan are also supporting their neighbours the Wet’suwet’en. It really is a small world.

In the case of Delgamuukw v. British Columbia the Supreme Court recognized traditional governance forms of First Nations including the hereditary chief and clan system on traditional territories. That has become an important issue in the current Wet’suwet’en melee because of the disagreement between 5 of the Chiefs and Councils who have signed Benefits Agreements with the CoastalGasLink and the Hereditary Chiefs who are opposed to their pipeline. The Hereditary Chiefs are arguing in this current case that the Elected Band Councils and their Chiefs are more like municipal councils with jurisdiction only over reserve lands. The Court noted this in the injunction case but did not say whether or not it agreed with this assertion. Whether that claim is right or not is one of the many uncertainties in the current case.

In Delgamuukw v. British Columbia the Supreme Court upset the law as it was until that time. The trial judge had rejected the claim by the Wet’suwet’en and Gitksan that they had an aboriginal right  over traditional  lands in northern B.C. that had never been ceded to the Crown because it could not provide satisfactory evidence to support their claims. The Supreme Court overturned that decision, pointing out that the court should have paid more attention to the oral tradition of the Wet’suwet’en and Gitksan people. In order to do that the Supreme Court acknowledged that the ordinary laws of evidence must be adapted to place oral history on an equal footing with other types of evidence, instead of being classed as hearsay as courts had previously done. This made a huge difference in cases of Indigenous rights because invariably they depended on oral history.

In the Delgamuukw case the court also said, in accordance with the Royal Proclamation of 1763, that aboriginal title to land can only be surrendered to the Crown. Added to that, such land is communally held, not privately as other land. This is also a controversial issue I will comment on later in this blog. To prove that it has Aboriginal title a First Nation must prove by oral history, or otherwise, that the land was exclusively occupied prior to sovereignty.

This case considered the nature of Aboriginal title.  Aboriginal title is a right in land that allows a group to use the land in almost any way deemed fit.  The use need not be an Aboriginal right per se(e.g. the right to hunt).  Title land can be used in many ways, but not in a way that is irreconcilable with the original connection with the land (e.g. cannot strip mine a land that was used as a hunting ground).  Aboriginal title can only be surrendered to the Crown.  In other words, only the federal government can extinguish aboriginal title, not provinces. in the current case the Wet’suwet’en assert that they were never conquered and never ceded their rights in the land to the Crown and that therefore they own it.

Royal Proclamation

Indigenous Issues, Indigenous People After Contact

 

Many Canadians have been heard to say, the protesters of the pipeline must obey the rule of law. The rule of law is the basis of Canadian society. I agree. But what does that mean? It means everyone–the Indigenous people, white settlers, businesses, must obey the law. Lets not just pick on the Indigenous people. Canada is a country governed by law. That is what the rule of law means.

But this is complex. It is not enough to say that protesters must obey injunctions. Everyone must obey the law, even the majority who control the government of Canada or British Columbia.

To understand the point I want to make you have to look at some very old law–the Royal Proclamation of King George of England in 1763

There was a deep conflict in North America in the 18th century. One big issue was who would control the expansion of European-Americans into Indian Country? The governments of the United States after 1776, and Britain after its victory over France in the Seven Years War that began in 1756 and ended in 1763, jostled over who would get that control.

In 1763 just after the end of the Seven Years War, and before the American Revolution, the British Monarch, King George, issued a Royal Proclamation in which he asserted his absolute claim to exclusive authority to acquire by purchase (not conquest) aboriginal title in the lands that he reserved for Indian peoples as their hunting reserves. That land included most of North America and all the land west of the Mississippi River.

By this proclamation, that is still valid law in Canada, the British sovereign monopolized the exclusive authority to transfer lands from Indigenous people (Indians as he called them) to non-indigenous people. No private deals could be made! By this act, the British crown usurped the right to control and regulate the westward expansion of Anglo-American settlements. Really, the British King said he and he alone had the authority to decide who would own North America. Talk about hubris! However, by this Proclamation, King George also acknowledged that the land in North America (including in 1763 much of what is now the United States) was owned by the original inhabitants and ownership (title) could only be acquired by purchase! And only the crown could buy.

Americans of course, were loath to accept this and it was this proclamation and later taxes imposed on the Americans that led to their revolt against British rule. Indigenous people who had lived on this continent for millennia, never acknowledged that the British King had this authority. But they liked the acknowledgement that no one could acquire ownership of land after that time except the Crown and then only through purchase from indigenous people.

This Royal Proclamation is the basis for English (and later Canadian) authority over much of North America.  It really was the basis of law in Canada. The English realized that their claims over North America had a dubious foundation. The Royal Proclamation was intended to make that foundation sound. It was the foundation for empire–the British Empire–in North America.

The United States saw no need for such a basis for their expansion. They were content to rely on conquest. Canada never did that. It really did not do a lot of conquering. It took the position that it was governed by the rule of law.  Canada saw how the Americans were spending vast fortunes in its Indian wars and did not want to replicate that here. In one year 25% of the entire American federal government budget was spent on Indian wars.

It is important to recognize that the English government and its laws, which were later assigned to Canada after 1867, deliberately provided that land not purchased by the Crown from Indigenous People belonged to the inhabitants–the indigenous people.

That is still the basis of Canadian law in the wild territories. And this is still important today in understanding issues such as the melee over Wet’suwet’en land and pipelines over it.

Why is this relevant?  Because the Wet’suwet’en never ceded their territory except over those 6 parcels of land now included in those 6 First Nation Reserves established as such under the Indian Act. That means that no one has acquired those lands. The original owners, whoever they are, continue to own those lands. With ownership comes the right to say what can and what cannot be done on that land. What gives the Province of British Columbia the right to issue permits for developments, such as pipelines, over that land? What this means is that this is not ancient history; this is law.

Screaming for Law

Indigenous Issues,

The issue of the protests over the gas pipeline in or near the traditional territory of the Wet’suwet’en people is extremely complex. It has generated a lot of heat. I am trying my pitiful best to shine a little light on the issues from afar. Not only am I far away physically I have come without most of my books that sadly I had to leave behind. The only way I can do that is to meander through some of he issues looking at them in small bite-sized chunks.

I find it interesting how many people are screaming that they want the rule of law. Screams are rarely the way to support the rule of law. Now I am speaking metaphorically, as I have been ensconced in southern Arizona thousands of kilometres from the scene and the “screaming” I have heard has been from Canadians on social media.

I understand that people are upset. Particularly farmers unable to get their grain and other inventory to markets, or oil sands workers and pipeline workers unable to earn a living and countless Canadians unable to obtain goods they need that were being delivered by rail. I know a lot of important goods are delivered by rail. As a former CN sleeping car porter, I know the Canadian rail system is important to the country. But so is justice.

I understand that a number of indigenous activists and their allies have been arrested, much to the delight of some those people screaming for the rule of law. There were 3 Indigenous women included among those arrested.

According to the Guardian, “Freda Huson, Brenda Michell and Karla Tait were among seven people detained when Royal Canadian Mounted Police officers – backed by helicopters, heavy machinery and dogs – moved in on the remote camp in north-western British Columbia. These are not the customary instruments whereby the rule of law is imposed upon unarmed Canadian citizens. One of the things I have been surprised at  again, is how non-violent protests of Canadian Indigenous people have been over and over again. Yet, it seems, each time the Canadian police come with heavy artillery. Why is that?

Just consider how you would feel if you were at your home if  helicopters landed in front of you and unloaded heavily armed police Swat teams supported by dogs. Call me a sissy but I would be a bit disconcerted. Even if I had been participating in protests contrary to a court ordered injunction, I would have been disconcerted. I guess I am a sissy. Those Wet’suwet’en women are not sissies; that’s for sure.

But I keep thinking, there must be a better way to do this. A Canadian way.

Pity the Farmers and Oil Workers?

Indigenous Issues

 

The Wet’suwet’en  First Nation issue is very complicated. The truth is murky.  I am finding it difficult to get information about the issue from Arizona. As I understand the facts, 5 out of 6 of the Tribal chiefs and councils under the Indian Act have signed Benefit Agreements with the Pipeline Company. But the hereditary or traditional chiefs are opposed. At least some of them are opposed. I also understand that the pipeline is not actually passing through the territory of those 5 Chiefs and Councils. Their jurisdiction is limited to their reserves. But their land claim might be affected. I don’t know.

One indigenous  person, I heard on CBC radio was opposed to the pipeline and claimed that Coastal GasLink the company that wants to establish the pipeline has signed Benefit Agreements with some First Nations that are not affected because they are easy to persuade (because it does not really affect them). Having a large group of First Nations signing such agreements makes consultation and informed consent sound more  impressive than it really is. On the other hand, Coastal GasLink has to make sure that it consults with as many groups that are affected as possible. If they don’t they will be criticized for that. Where do they draw the line? I sympathize with their plight.

I understand Canadian farmers (many of whom have suffered from poor crops)  are very upset that their grain shipments are held up. I can understand that. I also understand how oil workers or pipeline workers was to get to work to earn a living. That too is perfectly understandable.

Yet I wonder how many of the farmers or workers have ever urged their Member of Parliament to encourage them to have the Canadian government negotiate long-standing land claims made by the Wet’suwet’en people. I would have more sympathy for them if I knew that they had lobbied the government to honourably negotiate those claims as soon as possible rather than wait for the next crisis, as it seems to me they have done.

For example, many Canadian farmers supported the previous Conservative government led by Stephen Harper. Did he make any serious efforts to settle those claims? If he did I was not aware of them. What have the farmers done to help the Wet’suwet’en people?

I have less sympathy for groups that only advocate for what is good for them. That is too easy.

Everyone needs to walk a mile  in the moccasins of the others. That includes protesters and  anti-protesters.

What does “Rule of Law” mean in an indigenous context?

Indigenous Issues, Law,

The late Mohawk scholar, Patricia Monture-Angus made an important and relevant statement when she said:

“Think about everything that First Nations people have survived in this country: the taking of our land, the taking of our children, residential schools, the current criminal justice system, How was all of this delivered? The answer is simple: through the law.”

The reason for this is that Canadian law often–too often–has been strongly Eurocentric. In other words, it has perceived claims of whites as naturally right and indigenous as naturally wrong-headed or ill-advised. Such law is clearly not just law. That is the reason that so many Indigenous people are suspicious of Canadian law. Frequently in the past Canadian law has been used as an instrument of domination over Indigenous people. The Indian Act is one example, Residential schools another. If you belonged to a group that had been repeatedly subjected to such domination you would likely be suspicious too. As a result when many Indigenous People hear that the Prime Minster expects them to respect the rule of law, it is understandable that they would not consider such an admonition in the same spirit as the rest of us might.

The Supreme Court of Canada has recognized, as many Canadians have not, that Canada was never terra nullius (“nobody’s land”) before European colonization.  Yet often this fact is ignored, particularly in dealing with things like unceded land. Unceded land is land that Indigenous people have not conceded belongs to Canada. They have never given up their claims to it. Significant portions of land have been ceded to Canada by treaties or other agreements. Significant portions of land the Wet’suwet’en First Nation has claimed as its traditional territory is unceded. Some of its land was in fact ceded to Canada. As a result 6 Indian Reserves, as they are called in the Indian Act, have been ceded to Canada.

Since the federal government and the Wet’suwet’en  First Nation have not come to agreement about their land claims, it is an unresolved land claim. It may or not be held to be valid. It is unresolved land claims that pose great problems for resource development in Canada. Unfortunately, those claims can take decades (or even centuries!) to be resolved. Often it seems to me there is no great pressure exerted on the federal government to conclude agreements with First Nations until a potential development, such as a pipeline, logging  enterprise or golf course, is proposed that would impact their land claim. Then it becomes urgent. I really wish people like farmers, pipeline workers, retired lawyers, and others pressed the government to resolve these claims rather than wait for the next crisis. Pressures of urgent developments are never helpful. It would be much better if such agreements were negotiated in advance of development with good faith and diligence. Then it could be done quietly, thoughtfully, without undue pressure.

in this case the pipeline company Coastal GasLink Pipeline Ltd obtained an injunction against the Wet’suwet’en people not to interfere with the construction of their  pipeline and they claim that injunction has not been followed. An injunction is a court order requiring someone, such as Wet’suwet’en First Nation  to do something or, more often, refrain from doing something. A recent study from the Yellowhead Institute at Ryerson University found that when Canadian courts issue injunctions they do so overwhelmingly in favor of corporations against Indigenous claims.  76% of injunction applications filed by corporations were granted while more than 80% of injunction applications applied for by First Nations were refused. Why is that? This pattern is perpetuated with the repeated issuance of injunctions – enforced with violence and threat of lethal force by the RCMP – against the Wet’suwet’en working against the Coastal GasLink project, authorized without the consent of the hereditary chiefs vested with jurisdiction over the decision. We have to be careful with such stats. By themselves they prove nothing. But they are interesting, and they impact what First Nations think about the Canadian judicial system.

As a result it is perhaps not so surprising that Wet’suwet’en people don’t have quite the reverence for judicial injunctions orders that other Canadians have. That doesn’t necessarily make it right, but it does make it understanding.

Rule of Law

Indigenous Issues, Law

 

The expression “rule of law” has been used many times in this dispute between some Wet’suwet’en people (not all) and the developers of the pipeline and the British Columbia government and the Canadian government and various other interested parties. All sides throw this expression at each other like weapons.

I am a recovering lawyer, so all my life, I have thought it is important to respect law. I still do. A country in which laws are not respected is a country headed towards anarchy. That is what many of us object to about the current President of the United States, Donald Trump. He thinks his country is a place where the laws apply to everyone but himself. His lawyer, Alan Dershowitz, argued in the recent Senate impeachment trial, that anything the President did was permitted by law. He seemed to say, the President by definition could not break the law. But most importantly, there in the United States and here in Canada is what to the people think? Do they respect the rule of law?  I really believe America is demonstrating conspicuously that Americans do not respect the rule of law. Few of his millions of supporters object. As long as it helps Trump win is all that counts. I don’t want Canada to be like that.

To most of us that was an anathema. That is not what law is. Law applies to everyone, even the rulers. The President is not a king.  Therefore the President must obey the law just like the rest of us. This is a fundamental concept to a society that wants to avoid anarchy. Does the same not apply to Wet’suwet’en people and their allies? Does the same apply to Prime Minister Trudeau and Premier John Horgan? I hope so. The same goes for the Canadians who have been roundly criticizing the Wet’suwet’en people and the damage their blockades of trains have been harming the Canadian economy.

 

But what is the law? That is not as quite as simple as it might seem. Clearly, the law includes the Constitution Act and Canadian Charter of Rights and Freedoms of 1982. It also includes the British North America Act that created the country of Canada in 1967. In fact it includes all laws passed by the Parliament of Canada within its jurisdiction as provided for in the British North America Act. It includes laws of the province of British Columbia pursuant to which permits can be issued to permit the construction of various projects such as pipeoines. It includes the laws of British Columbia that create a court of law and governs the decisions that are made by courts. Then of course there is common law. That is law created by judges interpreting the law. The laws of Canada also include those laws that were adopted by the British Parliament before 1987 but only to the extent that valid Canadian laws have not been enacted to contradict such laws. One of those laws is the Royal Proclamation of 1763. I will be commenting on it because it is relevant. This may surprise some of you, but in recent years there has been a growing recognition among Canadian courts and Canadian people that the law of Canada also includes aboriginal law. When Europeans came to Canada the people that occupied this country had laws too. Those laws are also important. They must also be respected. All of these laws are part of our “rule of law.”

Sometimes laws overlap. Sometimes laws contradict each other. Sometimes purported laws are outside their jurisdiction and hence invalid and not legally binding. Then courts have to determine what is really the law of Canada in the circumstances of any case.

With such a mosaic of laws it is not always easy to determine what is the law. That’s why lawyers are important. I had to say that.

In the Wet’suwet’en matter many laws have become important. It is not necessarily so easy to say what is the law and how should it be enforced.

A friend of mine recently asked me if there were any people who had never been displaced. I had no answer to that question. Frankly I don’t know. I know that strife has been common since time immemorial. Strong people have ousted weaker people. That might be true but what is the significance of that? Is that what law is? The strong can do what they want? Too bad so sad? I know that is a common American attitude. They are not as squeamish as the rest of us.  Many of them think they conquered Indian people, as they call indigenous people, so might is right and that is all there is too it. Canada of course has not conquered the First Nations of Canada. The Wet’suwet’en, for example, were not conquered.

Canada has always prided itself on being a country of law. Really that goes back to at least 1763 when the British monarch proclaimed the Royal Proclamation. Canada and its predecessors always wanted a solid legal foundation for the country.  The Canadian government always recognized that without a solid legal foundation, Canadian society would be built on a shaky foundation. I think that was, and is a good idea. Because Canadians wanted a society based on the rule of law they realized they would have to negotiated with the Indigenous people of Canada to share occupancy of this wonderful country. The could not just impose the laws of the recent arrivals. That has made things very interesting in Canada, but I am proud of our country for taking that approach.

Visitors and Guests: A Canadian Hey Rube

Indigenous Issues,

While I’ve been gone in the United States I have been missing out on an extraordinary incident in Canada that involves many of the things I have been blogging about, and want to blog about going forward. Terrible timing on my part.

As I understand it, Coastal GasLink has obtained legal permits to construct a pipeline in British Columbia. It claims to have the legal right to build that pipeline in accordance with that permit. It has entered into agreements with various parties, including 5 out of 6 Wet’suwet’en  Chief’s and Councils of First Nations that it claims are affected by the pipeline. Yet some Wet’suwet’en, led by Hereditary, or Traditional leaders, object to it. So the Wet’suwet’en people themselves are divided about it. Some of them have tried to stop the development by means of peaceful protest and blockades.

Meanwhile across the country, other First Nations and allies have objected to the development in support of the Wet’suwet’en people and have even blockaded railway lines in other parts of the country. This has resulted in serious hardship to many people in Canada who depend on the railway to deliver supplies to them. At the same time, many businesses and their employees are unable to carry on their businesses or occupations as a result of the blockades, which they say are contrary to law. The say everyone must obey the law. That is what the rule of law means. Everyone must respect the law. After all Canada claims to be a country of laws.

The dispute has generated startling heat from people far from the melee. I think that is because the case involves many issues. And many of those issues are far from resolved and far from simple. It is a genuine Canadian ‘Hey Rube.’

Many are asking who are these Wet’suwet’en and why are they doing these things to us?  Why don’t they obey the law? Don’t they realize the rule of law is the basis of our society? They themselves are divided so how can the rest of us come to an agreement with them, for they are a divided people. Why don’t they get over what happened centuries ago? We all suffered injustice so why don’t they get over it? How can they hold up development that will benefit the entire country and none more so than their own poor communities? Why doesn’t the federal government led by that milksop Justin Trudeau not just enforce the law? Isn’t it really that simple?

I hope to comment on all of these issues and few others besides. I hope in that way to throw some light on the issues.

There are some confusing issues here. 5 out of 6 Wet’suwet’en First Nations have signed “benefit agreements” with Coastal GasLink, the developers of the pipeline. Is that not good enough? Who speaks for the Wet’suwet’en?

To begin with, like other Indigenous groups in Canada, the Wet’suwet’en, like many Indigenous groups in Canada, are governed by both a traditional governance system and elected Chiefs and Councils. That is not as crazy as it may sound to some. Remember, in Canada we traditionally have 3 levels of government: the national government of Canada, the provincial government in which we reside, like Manitoba in my case. As well, we have municipal governments such as the City of Steinbach or village of Plum Coulee, depending on where we live.

As if that is not enough, now, in some cases, we have to add 2 more additional levels of “government.”  First, there is the band Chief and Council system, that was created by federal legislation– the Indian Act.  Although I intend to comment on many features of this law, I just want to point out at this time that this statute was created by the federal government of Canada, more than 100 years ago. It imposed a law on the First Nations of Canada without their consent. They had no input to its formation. In addition many First Nations have traditional or hereditary chiefs who govern in accordance with traditional laws of aboriginal people in those territories not governed by a Chief and Council under the Indian Act. Yes its confusing.

The first question is what gave Canada the right to do that? Then some of the Indigenous people have their own traditional (often but not always hereditary) chiefs.

After all we must all remember that immigrants from Europe (many were invaders from Europe) came to a country that was not empty. Many Indigenous people lived here and they had their own civilizations and even, laws. Many of us try hard to forget that. But this is an uncomfortable fact and it must be acknowledged. The Europeans were a bit like a guest in someone else’s house. Do the guests have the right to take over and impose their system on those who live there? This actually happened to an uncle of mine. A cousin of his visited him in his home in Vancouver for a few weeks and one day my uncle came home from work and found his cousin had torn down a wall in my uncle’s house and was building an addition to the house for himself. I kid you not. It happened. My uncle was not very happy about it, but what could he do?  How would you feel if this happened to you? Perhaps this is just plain Canadian.

Jordan’s Principle: Health Care for Indigenous Children

2020 Trip to Southeast USA, Indigenous Issues

 

On the first day of our trip to the south we listened to CBC radio, as we usually do. We heard Cindy Blackstock talking about Jordan’s Principle.

Jordan River Anderson was a young indigenous boy from the Norway House Cree Nation who suffered from Carey Fineman Ziter syndrome, a rare muscular disorder. As a result of his illness he required years of treatment in a Winnipeg Hospital. He spent the first two years of his life in a hospital.

If you have ever been in a hospital you know you want to be there if you are very sick, but the shorter your stay the better. It is a horrible place to live. After 2 years in the hospital his physicians agreed that he could live in a family home near the hospital in Winnipeg.

Had Jordan been white, it is likely that none of this would have been a problem and Manitoba Health would probably have covered him. Unfortunately, the federal and Manitoba wrangled about who would pay. Manitoba took the position that as an aboriginal child the federal government was responsible. The federal government was not so sure. For more than 2 years the two governments fought over who would be responsible for his considerable medical bills. During that additional 2 years Jordan continued to live in the hospital. In fact he actually never got to live in a family home, because he died at the age of 5 before that ever happened. It was a case of horrendous abuse perpetrated by the two levels of government. It was a dark day for Canada and Manitoba when he died.

It is true that in Canada there is some ambiguity about which level of government is responsible for government services for First Nations children even when those services are ordinarily available to other children living off reserve. As a result it is common for the governments to wrangle over the bills while the services to the children are delayed. Often the services are denied until the dispute is resolved.

 

According to Jordan’s principle, that was agreed to by the federal and provincial governments after the bad publicity as a result of the case of Jordan River Anderson, the governmental agency that is first contacted will pay, without delay or disruption and then if the government that paid feels the other government ought to have paid, it can refer the dispute to an impartial dispute authority for binding resolution if the two governments cannot agree which should pay. The idea was to help the children immediately and let the governments work it out later. This was a great idea. Jordan’s principle was unanimously adopted by the House of Commons of Canada on December 12, 2007

Sadly according, to Cindy Blackstock, an indigenous activist, the government had interpreted the principle so narrowly that hardly any children get to benefit from it and the stark injustice continues.  As a result she helped First Nations file a complaint with the Canadian Human Rights Tribunal (‘CHRT’) and independent adjudicative body. In January 2016 the CHRT held in favor of the First Nations complainants and found that the Government of Canada improperly implemented the principle which Parliament had unanimously adopted. As a result according to CHRT Canada discriminated again First Nations Children  and youth on the basis of race and ethnic origin contrary to Canada’s Charter of Rights and Freedoms. It also ordered the government to stop applying that principle in a discriminatory manner and to apply the principle fully.

Since that ruling in 2016 nearly 4 years ago, the CHRT has issued 7 non-compliance orders against Canada for failing to abide by its rulings. The 3rd of its non-compliance orders was issued by the CHRT in May of 2017 after the it had found that Canada continued to repeat is pattern of conduct and narrow focus with respect to Jordan’s principle. At the same time the CHRT issued 22 additional orders. The Liberal government under Justin Trudeau says it agrees with the decision but want to think carefully about how it implements the rule. That sounds sensible, but in the meantime Indigenous children continue to be discriminated against.

 

As part of a much broader claim against the federal Government by Indigenous children, in September 2019, the CHRT issued a ruling related to compensation. It ruled that the federal government should pay $40,000 to each child who was in child and family services care on reserve at any point from Jan. 1, 2006, to a date to be determined by the tribunal. It even included payment to some of the parents and grand children of the children involved. That amount is the maximum allowed under the Canadian Human Rights Act. In other words, the tribunal might have awarded even more if it had the authority to do so. Clearly, the CHRT saw the conduct of the Canadian government as egregious.

It is arguable about whether or not such a cash award is the right way to solve such a problem. After all it may seem like throwing money at a problem.  Yet it shows how serious the problem is and how badly the Canadian government is failing indigenous children, thus continuing a pattern of neglect and abuse that is more than a century old. It is time for a change. Indigenous children should be treated equally with non-indigenous children whether they live on or off-reserve.  Anything less is a disgrace. And they should not have to wait until the federal government is ready to do what it has been ordered to do.

Wayfarers of the South Pacific

Ancient Humans, Indigenous Issues, Indigenous People before Contact

European explorers invariably believed they were superior to every group they encountered. This is well known. Some of the examples of the ignorance of feelings of superiority include European encounters with the Wayfarers of the South Pacific.

The first European to see the Pacific Ocean was the 16th century Spanish explorer Vasco Nunez de Balboa who had crossed the isthmus of Panama in 1513.

When the Portuguese explorer Ferdinand Magellan made his epic journey round the horn at the southern tip of South America he missed some important things.  The voyage was indeed impressive, but it was also impressive in the things that ideological blinkers prevented the explorers from noticing or seriously considering.

When Magellan turned around the corner of the Horn and began to head north he feared he was entering a void. That was how ignorant Europeans were about what could be found in the South Pacific. By that time half his men were already dead from the hazards of the voyage. He sailed for another 4 months in the southern Pacific and astonishingly he managed to miss every populated island group in the Pacific. Finally, on April 7, 1521 he landed on the island of Cebu.  Now we call the island group the Philippines.

Magellan was a brave explorer. It took guts to venture forth into the Pacific, because it was an ocean of the unknown in 1521. Yet he plunged on bravely. He named it “Pacific” because when he saw it the ocean was very calm. Nonetheless, although we acknowledge the bravery we also notice the blindness. As Wade Davis said, in his magnificent book, The Wayfarers,  “In his desperation and blindness he had by circumstance bypassed an entire civilization that might have taught him a great deal about the open water.”

There was an entire civilization that could have taught him how to survive and thrive in the Pacific. Yet, as so often happened with the European explorers, he failed to take advantage of what could be learned from indigenous people. That is exactly what Davis’ book is about. That is what has inspired me to consider what could be learned from indigenous people. Like my friends who suggested we could go to  an Indian Reserve in Canada and build a house for people there and solve their problems for them. If only they would listen to us. Over and over again, Europeans, thinking they were the finest and best at everything neglected to learn from indigenous people and that failure has made all the difference. Europeans were not stupid. The achievements of European explorers were remarkable, but sometimes they also possessed remarkable arrogance that did not help their cause.

The South Pacific was an astounding place. Davis said that it was “the largest sphere ever brought into being by the human imagination. Polynesia: 25 million square kilometres, nearly a fifth of the surface of the planet, tens of thousands of islands flung like jewels upon the southern sea.” Davis described the “discovery” of Polynesia by the Europeans as encountering “a new planet.” It really was that strange.

We have to remember how vast the Pacific was. It is the largest thing on the planet. It dwarfed everything—absolutely everything—the Europeans had ever seen.

The first sustained contact between Polynesia and the Spanish occurred later in 1595, some 74 years later. This was when Alvaro de Mendaña de Neira reached the islands he called the Marquesas after his patron. This was the most isolated island group in the world. There were probably as many as 300,000 people living there at the time. Davis was right: “It was an extraordinary meeting of civilizations.” It was one of the most extraordinary such encounters of all times. It was every bit as amazing as the meeting between Europeans and North Americans.

The Marquesans considered their islands to be the end of the earth, much like the Europeans had believed about their own continent before Columbus sailed to the “New World.”  That is what it was to the Europeans when Columbus sailed. This was another New World. It was nothing less than that. The Marquesans considered it the last stop on a mythical journey made by their ancestors from the west.  They believed that every human being was a descendant from Tiki, the first human. Sounds a lot like Adam doesn’t it?

The Marquesans were not in awe of the Spaniards. Far from it.  They felt they were vastly superior to these ruffians from the east.  Davis described their attitudes to this historic encounter this way,

“Thus, to the Marquesans, the Spaniards were as demons, embodiments of depravity born beyond the reaches of the eastern sky. Carnal and deceitful, cruel beyond reason, the Spaniards offered nothing. They had no skills, no food or women, no knowledge of even the most elemental elements of the natural world. Their wealth lay only in what they possessed, curious metal objects that were not without interest. But they had no understanding that true wealth was found in prestige, and that status could only be conferred upon one capable of acquiring social debts and distributing surplus food to those in need, thus guaranteeing freedom from want. The white Atua—these strangers who came from beyond all shores—had no place in the order of life.  Such was their barbaric state that sorcery did not affect them, or even the power of the priests. So complete was their ignorance that they did not distinguish commoners from chiefs, even as they treated both with murderous disdain.”

The people of the South Seas of Polynesia believed that the people with real prestige were those who helped others. Those were people who should be honoured. Yet the Europeans were puzzled by the ignorance and barbarity of the Marquesans. They wondered how such ignorant people could have accomplished so much. These were two solitudes staring each other down. A little less superiority on both sides would have been a boon to both. Arrogance is seldom a helpful attitude.

There were serious things for the Spaniards to puzzle over. They wondered how had these people come to these islands that were more than 3 months sailing distant from the most western Spanish outpost.  They noticed that women were not allowed in canoes. That was taboo.  So the women swam towards the Spanish vessels. The Spanish also noticed that the Marquesans had no magnetic compass like the Spaniards did. As a result it seemed impossible that these people could have peopled these distant islands. It was a serious puzzle.

Remember at the time European sailors had not yet solved the problem of how to measure longitude. That meant that they had to hug shores when they explored. This was a serious deficiency. That was why the English government offered a reward of 20,000 pounds to the person who solved this puzzle. At a time when a mansion in London could be furnished for about 100 pounds, this reward was magnificent. Until the invention of the chronometer European navigators had to rely on dead reckoning. As a result sailing too far from land was extremely dangerous. Yet here in the Pacific Ocean, much more vast than the Atlantic Ocean the Europeans were more accustomed with dealing, the Spaniards found these strange people. How had they got here? How had they colonized these islands? How did they get their women there so they could bear children for their men?  These were deep mysteries to the Europeans.

Captain James Cook was to some the greatest navigator in the history of England’s Royal Navy the greatest Navy in the world. At least so the English thought. Cook was the first person to pay serious attention to this puzzle. When he arrived in Hawaii his ship was met by a flotilla of 3,000 natives. Cook had noticed at Tonga that local catamarans could travel 3 leagues in the time that his ship could only cover 2 leagues. He was also surprised that people from the Marquesas could understand the language of the Tahitians even though nearly 1,600 km of the Pacific Ocean separated the two.  How was this possible?

On Cook’s very first voyage in 1769 he met in Tahiti a navigator and priest who went by the name Tupaia who drew from memory a fairly accurate map of every major island group in Polynesia except for Hawaii and Aotearoa. He placed more than 120 stones in the sand each representing an island. The map spanned 4,000 km.  That is about the distance across North America . Who in Europe could draw such a map? Could these people not teach some things of value to Cook? The answer was obvious. But not to Cook.

Later Tupaia astonished Cook even more than that. As Davis described a future trip the two took together,

“Tupaia later sailed with Cook from Tahiti to New Zealand, a circuitous journey of nearly 13,000 kilometres that ranged between 48 degrees south latitude and 4 degrees north.  To his astonishment, Cook reported, the Polynesian navigator was able to indicate, at every moment of the voyage the precise direction back to Tahiti, though he had neither benefit of sextant nor knowledge of charts.”

Imagine what would have happened if both sides had more respect for the other. How much could they have learned?