August 15, 2020

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Opinion

Reconciliation starts with the land

MIKE DEAL / WINNIPEG FREE PRESS FILES</p><p>Protesters march in Winnipeg on Feb. 24, in support of the Wet’suwet’en hereditary chiefs’ opposition to the Coastal GasLinks pipeline in British Columbia.</p>

MIKE DEAL / WINNIPEG FREE PRESS FILES

Protesters march in Winnipeg on Feb. 24, in support of the Wet’suwet’en hereditary chiefs’ opposition to the Coastal GasLinks pipeline in British Columbia.

The current blockades are the latest development in a land-surrender process that started in the 17th century. The first commercial compacts between the European settlers and Indigenous peoples of North America presented the two parties with challenges in understanding each other’s world views on land title. This challenge persists to this day in resolving the Wet’suwet’en claims.   

As described by J.R. Miller in Compact, Contract, Covenant : Aboriginal Treaty-Making in Canada, when Europeans first encountered Indigenous peoples of North America, they imagined a vast continent settled by disparate and unconnected collectivities. In fact, Indigenous peoples had long developed a complex web of political agreements to facilitate trade, govern hunting/fishing/agricultural rights and manage the diplomacy of an increasingly crowded and contested continent.

Europeans were confronted with a land title system in which kinship and consensus bound agreements among Indigenous peoples, unlike the familiar legal contracts in European law that bind strangers to mutual obligations enforceable under law.

These two views confound common understanding of land title to this day. When the Wet’suwet’en hereditary chiefs assert rights over more than 20,000 square kilometres in northwestern British Columbia, they are calling on oral agreements with other First Nations negotiated long before the arrival of Europeans.

For most Canadians who own a home within the framework of English (or Quebec) law, the language and concepts used by Indigenous leaders when speaking of land rights is utterly foreign.

Despite the radically different world views, however, Europeans and First Nations negotiated many effective trade agreements in the 18th century. The treaties of peace and friendship negotiated by France for example, were, as Miller writes, "remarkable diplomatic achievements."

In 1763, with the end of the Seven Years’ War, George III issued a royal proclamation intended to create a framework to guide British colonization of North America. A critical theme of that decree secured Indigenous title to the land, specifying it would remain so unless ceded by an explicit treaty. Despite the portrayal of King George as a buffoon and madman in the musical Hamilton, the proclamation is quite forward-looking for its time. Of course, on the eve of the American Revolution the proclamation also had military purposes for Britain in the creation of alliances with Indigenous nations. 

With defeat of the Americans in 1812, the imminent threat of invasion from the south abated and relationships between Britain and Canada’s Indigenous peoples changed. The challenge, as perceived by the Province of Canada (and Britain), was to populate the west as rapidly as possible as a defence against the threat of American economic expansion northwest.

Once Indigenous peoples were no longer needed as military allies, governments viewed them more as a nuisance and sought to accelerate assimilation.

The Robinson-Superior and Robinson-Huron Treaties of 1854 signalled this changing relationship between government and First Nations. In contrast to the prior piecemeal treaties that involved small land areas and a single community, these two treaties encompassed several First Nations and vast areas.

They also included one-time payments for the bands, annuity payments to individuals, specification of reserve lands where Indigenous families were "encouraged" to settle, and guarantees of hunting and fishing rights. Canada viewed this model as so successful that it served as the template for the next phase — the so-called numbered treaties.

The enunciation of the National Policy, initially a high tariff regime to shield the Canadian manufacturing soon morphed into a policy to settle the west.  Prime minister John A. Macdonald's government sought to pave the way for waves of new immigrants, exploit natural resources and consolidate Canada’s claim to Rupert’s Land and west to the Pacific.

The numbered treaties, negotiated between 1871 and 1921, defined specific land areas reserved exclusively for Indigenous settlement, offered a nominal annuity of $4 to $15 per person and, in some cases, offered health care and other services. The intent was to create agricultural communities that would encourage the assimilation of Indigenous persons into the mainstream economy. The numbered treaties accounted for massive land surrenders from First Nations to the Canadian government and settlers.

After 1921, the line went dead on treaty-making. Vast areas of Canada, the land the Royal Proclamation of 1763 designated as Aboriginal, became unceded territory. These unceded lands account for much of Canada’s wealth reflected by the growth of Montreal, Ottawa, Toronto and Vancouver. This period also marked the end of what has come to be known as the era of "historic treaties."

First Nations leaders continued to fight for land rights, with success eventually coming in the Supreme Court’s Calder decision of 1973, which ushered the era of the "modern treaties." The Calder decision recognized the right of the Nisga’a to a large area of B.C.; since then, more than 25 agreements covering over 100 communities have extended Indigenous ownership to lands which, in terms of total area, roughly equal the size of Manitoba.

These agreements protect traditional ways of life, guarantee participation in resource management decisions, have resulted in investments of $3.2 billion by the federal government and support access to resource opportunities.

In contrast to the views of many media commentators who state no progress has been made on Indigenous land rights for decades, recent history appears to show a meaningful move toward recognition of Aboriginal land title. However, the Wet’suwet’en blockade of the Coastal Gaslink pipeline has brought to the fore the ideological clash between the concept of Aboriginal Title, as vested in Indigenous tradition, and European fee-simple land title as vested in common law.

The Wet’suwet’en continue to assert title on the basis of kinship and consensus, the same view Indigenous negotiators presented to Europeans 300 years ago. In the 1990s, the hereditary chiefs tried to gain formal recognition of their land rights, but were rebuffed by the B.C. courts as failing to establish a clear claim. In its review of the Delgamuukw case, the Supreme Court, while not upholding the appeal of the Wet’suwet’en, accepted that oral history and occupation of the land were legitimate bases for First Nations’ claim to land title.

The ball is now squarely back in the court of the B.C. Treaty Commission and the Wet’suwet’en to determine whether the claim can be accepted within the framework of modern treaties. Had their original claim been granted more than 30 years ago, it is entirely possible that the Wet’suwet’en would now support the pipeline and be poised to receive revenue from resource development.

It is common to distinguish between colonial and Aboriginal law; however, as the current blockades demonstrate, the disparate conceptions of land title urgently require reconciliation. Otherwise, the experiment called Canada will enter deeply uncertain waters. 

Gregory Mason is an associate professor of economics at the University of Manitoba.

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