By Arthur Manuel – New Socialist Webzine (photo credit Pei-Ju Wang)
This is the second in a three-part series on the landmark Supreme Court of Canada Tsilhqot’in v. British Columbia decision last June, first published in First Nations Strategic Bulletin. Part 1,“The Tsilhqot’in Decision and Canada’s First Nations Termination Policies” by Russell Diabo, can be found here.
It is important to acknowledge with gratitude the courage and determination of the Tsilhqot’in People for moving our efforts to achieve self-determination one level higher.
The Supreme Court of Canada (SCC) did unanimously recognize Aboriginal Title in the Delgamuukw Case in 1997 but this is the first case that Aboriginal Title has been recognized on the ground. It is, in a sense, an important step in our anti-colonial struggle but that battle is still one that we must continue both inside and outside of Canada.
With regard to Tsilhqot’in Aboriginal Title, the Supreme Court said they have title over 200,000 hectares (2,000 km2) in the core of their territory in northern British Columbia. In comparison the Nisga’a total settlement lands amounted to 2,019 km2 in return for extinguishing Aboriginal Title to their whole territory.
Here is the broad territorial declaration of Aboriginal Title that the Supreme Court of Canada granted: “With the declaration of title, the Tsilhqot’in have now established Aboriginal title to the portion of the lands designated by the trial judge … This gives them the right to determine, subject to the inherent limits of group title held for future generations, the uses to which the land is put and to enjoy its economic fruits. As we have seen, this is not merely a right of first refusal with respect to Crown land management or usage plans. Rather, it is the right to proactively use and manage the land.”
This decision will obviously affect the colonial status quo and future relationship Indigenous Peoples have with Canada and the provinces.
It is important to understand that colonialism in Canada is based upon the dispossession, dependency and oppression of Indigenous Peoples. Under Canada’s first constitution, the British North America Act 1867, all Aboriginal and Treaty property were given to the federal and provincial governments.
When you add up all the Indian reserve lands in Canada, Indian Reserves only make up 0.2% of Canada. This means the federal and provincial governments mutually and exclusively control 99.8% of our territory. This equation basically establishes access and benefits between Indigenous Peoples and Canadians. Needless to say this has made us “dependent” on Canada for all our needs because we had no land or resources to take care of ourselves. That is the real tragedy of colonialism.
When we fight for our freedom and independence against this kind of colonialism, government or industry get injunctions and enforcement orders to oppress us. The police and the army are used to forcefully remove us from our lands claiming exclusive control over them. In fact the United Nations has condemned colonization in all its manifestations because it threatens world peace. This is why the Supreme Court of Canada tried to distance Canada from colonialism when related to us as Indigenous Peoples.
Radical Title and Terra Nullius
In the Tsilhqot’in Case the SCC declared that “assertion of European sovereignty” resulted in Canada acquiring “radical or underlying title” to all our Aboriginal Title territory. The court itself acknowledges that Terra Nullius was not in effect in Canada, which means the “assertion” could only be made under the blatantly racist Doctrine of Discovery that allowed Europeans to roam the world and claim the lands on non-European (i.e. non-Christian) peoples.
What is clear in the Supreme Court ruling is that without using the racist Doctrine of Discovery, Canada has no claim on these lands and the court does not present any substantial evidence of how Canada acquired radical title from Indigenous Peoples. Like many of my Elders say: “Where is your Bill of Sale?”
In fact Aboriginal Title is the radical or underlying title in Canada. That is why Aboriginal Title continues to exist.
It is critical to understand these deep-seated concepts because they are the essence of the two-row wampum and the parallel riding canoes analogies of the relationship between the settlers and us. Indigenous Peoples must not accept that Canada has radical title and we do not accept that our proprietary or Aboriginal Title is a burden on the Crown.
If anything it is Crown Title, or any property rights they grant, that are a burden on Aboriginal Title. In fact Canadian settlers cannot claim rights to live on our land based on the racist legal concepts of 500 years ago but only through mutual recognition and affirmation of our human right to exist equally within our territories as Peoples.
You can see how this contradiction really confuses the SCC when they switched from the substantive legal decision on recognition of Aboriginal Title to the political decision about whether provincial government jurisdiction applies to Aboriginal Title Lands. Canada and the provinces always team up against Indigenous Peoples in cases involving Aboriginal Rights. Both look at us as a threat to federal and provincial jurisdiction or law making power.
This can be seen in the decision where the SCC set aside a long standing doctrine of federalism on interjurisdictional immunity which would have barred the provinces from exercising any control over Aboriginal Title lands and looked at Section 35 of the Canadian Constitution as providing the basis for justifying the application of provincial law applying to Aboriginal Title lands.
The Tsilhqot’in case started from the fact that the BC government wanted to apply the BC Forest Act in Tsilhqot’in territory and issue logging licenses and the Tsilhqot’in objected to that intrusion into their territory. The BC Forest Act is basically an economic law that gives settlers or the “broader political community” the right to make money off the trees in Tsilhqot’in territory.
The real battle in the Tsilhqot’in case is between recognizing Aboriginal Title and contending with existing provincial jurisdiction. You can see the court struggle with the issue when they declare that the land is no longer Crown land, but Aboriginal Title land, and the timber is no longer Crown timber, but the Tsilhqot’in have the proprietary interests. While the court sees a role for the province in regulating the lands, they question how they can allocate the resources that belong to the Tsilhqot’in. In the end, the court repeatedly stresses that governments and proponents should get the consent of Indigenous Peoples before starting any development to save them the legal and economic uncertainty.
History speaks for itself. No one can deny the fact that the federal and provincial government system has been a total disaster for Indigenous Peoples. Indeed the federal and provincial government tag team against Indigenous Peoples in court cases despite the fact that Canada has a fiduciary responsibility to Indigenous Peoples. So we find no solace in the court referring to the fiduciary responsibility in this case.
The federal and provincial government system is designed to make settlers rich at the expense of Indigenous Peoples Aboriginal Title and Rights. The United Nations Human Development Index calculates Indian people on the reserve as being ranked below rank 70 (where developing countries rank) and Canada ranked up near the top, including number one, from time to time.
The Tsilhqot’in case does give us very clear recognition of Aboriginal Title and Rights, as proprietary interests. The real outstanding issue is that the SCC politically dealt with the issue of provincial jurisdiction and failed to address the issue of Indigenous law and jurisdiction. It is important to realize that once the SCC recognizes Aboriginal Title it must also recognize Aboriginal Law because that is the legal process that Indigenous Peoples use to organize and manage our Aboriginal Title territories.
This would also create competing jurisdictional conflicts between Aboriginal Laws and provincial government laws on forestry, mines, waterways, etc. These are outstanding issues that were not fully argued or addressed in the Tsilhqot’in case. It is up to us as Indigenous Peoples to implement the decision and our jurisdiction on the ground.
Canada Constitution 1982
It is important to point out that it was not supposed to be the courts that defined the relationship between Crown Title and Aboriginal Title. It was supposed to be the Constitutional Conferences identified in what was Section 37 of the Canada Constitution Act 1982. In fact, Canada had four such conferences in the 1980s and they failed in to arrive at a constitutional agreement. It was therefore left up to the Supreme Court to fill the gap and delineate the meaning of Section 35. The court can never adequately solve that deadlock because it is bound by precedent and the division of powers through the British North America Act that originally dispossessed us as Indigenous Peoples of our Aboriginal and Treaty Territories.
The constitutional deadlock over the meaning of Section 35 can only be resolved with the help of a third party, and the most logical is the United Nations. The UN human rights bodies oversee the implementation of the right to self-determination as initially recognized under Article 1 of the International Covenant on Civil and Political Rights and Article 1 of the International Covenant Economic, Social and Cultural Rights. Canada is actually a signatory to these International Human Rights Treaties, and Canada should be applying these standards of international law to their existing policies regarding Indigenous Peoples.
Canada claims that in Canada the right to self-determination is exercised by the state and covers Indigenous Peoples as Canadians. But as Indigenous Peoples we have a free standing right to self-determination, it is also the international remedy to colonization and enables us to determine our own political systems and economies. Canada’s argument fails because we were unilaterally made Canadian without our consent and we never released our inherent rights and lands.
The big question is, if we are Canadian, why are so many of us impoverished? Normally the answer is that we as “individuals” do not succeed in modern society. The blame is on the individual to fit in and not the colonial system that denies us access to our own land and that has dispossessed us, made us dependent and oppressed us.
Canada and other States that occupy lands of Indigenous Peoples basically tried to convince the global community that Indigenous Peoples are not entitled to Article 1 rights to self-determination simply because we are minorities within the larger occupying populations. As Indigenous Peoples we always maintained our right to self-determination and we fought for its international recognition.
In 2007 the United Nations passed the UN Declaration on the Rights of Indigenous Peoples (DRIP) which made it indisputable that self-determination is a right of Indigenous Peoples.
Indigenous Peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. In 2005 the United Nations Human Rights Committee asked Canada to provide answers on how Article 1 on self-determination was being applied to Aboriginal Peoples.
Canada said that Indigenous Peoples are basically Canadians and that we exercise our right to self-determination when Canada as a state government exercises self-determination. They fail to address the fact that Indigenous Peoples are systemically impoverished and marginalized and that we were basically unilaterally made Canadians for political purposes.
This is how Canada tries to deny us our rights as peoples, even though it is clear Canada has two basic constituencies, the Settlers and Indigenous Peoples. In 1982 the Settlers received the final symbol of their self-determination when the Canadian Constitution was patriated. But Indigenous Peoples opposed patriation of the Canadian Constitution until our land question was settled – and the four Constitutional Conferences failed – so Indigenous Peoples have not achieved self-determination.
With regard to the Constitutional Conferences on Aboriginal Matters, it is conclusive that Indigenous Peoples were not considered as part of the settler mainstream. In fact a mutual agreement would have had to be reached at the Constitutional Conferences for Indigenous Peoples to exercise self-determination within Canada.
Canada tries to hide behind ongoing ineffective measures to assimilate Indigenous Peoples into the mainstream settler population. The Royal Commission on Aboriginal Peoples (RCAP) and the failure to substantively implement the RCAP recommendations make it clear that assimilation is the only means of fitting into Canada’s existing vision of the government’s national identity.
RCAP Recommendation 29 is a telling example of Canada’s assimilationist imperative: “In addition, Canada undertakes special measures for indigenous individuals and collectivities in Canada, to enable them to fulfill their right to lead lives of dignity, to preserve their culture, to share equitably in the fruits of national growth and to play their part in the government of the country of which they are citizens. In 1982, the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada were given constitutional recognition and affirmation.”
It is important to look at the Tsilhqot’in decision as a very significant step forward in terms of dealing with Canada’s policy of dispossessing us as Indigenous Peoples. We need land or territory if we are to exercise our right to self-determination. We need to look at recognition of Aboriginal Title on the ground as a firm foundation to establish our jurisdiction and re-establish our Indigenous Laws back in our territory.
In fact my late father, Grand Chief George Manuel, used to always tell me that you cannot have self-government without land, because without land, what would you govern? I want to add that recognition and implementation of our governance and right to self-determination has to go hand in hand with land rights.
I believe that recognition of Aboriginal Title on the ground puts a very heavy onus on the Tsilhqot’in People and all Indigenous Peoples to clearly put out our vision on how we see a new Canada and British Columbia, based on our right to use our land according to our economic, environmental, social and cultural vision of the future. This is a great challenge because Indigenous Peoples have been marginalized since we were dispossessed of our lands.
We have not really participated in a big way in the economy since the fur trade. We must not be overcome by this awesome task but learn to work together and apply our laws on the ground. I believe that in addition to the judicial system, the International Covenants on Civil and Political Rights must be utilized in order to get indigenous jurisdiction recognized instead of having Aboriginal Title under provincial jurisdiction.
There is a direct competition between Indigenous Peoples and the provincial governments. It was and continues to be the province that has benefited from our lands since BC joined confederation. I cannot think of very much change from existing disparity if BC continues to have jurisdiction over Aboriginal Title lands. BC’s record speaks for itself.
Indigenous Peoples need to learn to work together. Canada is scheduled to appear before the United Nations Human Rights Committee in Geneva in October 2014 on the List of Questions and in July 2015 to make their Periodic Review. We need to address Canada’s response in 2005 on self-determination and the issues left unaddressed in the Tsilhqot’in case. We need to be clear to the UN Human Rights Committee that Indigenous Peoples, the rightful title holders have the right to self-determination and the right to jurisdiction and law making power over our Aboriginal Title Territories.
We need reject the Supreme Court of Canada’s political position that provincial law has jurisdiction over Aboriginal Title Lands as being colonial and against world peace. Implementation of our rights on the ground is going to be twice as hard as getting them recognized by the courts but the rewards will be real and they will benefit our children and future generations. A lot depends on us.
Arthur Manuel is a member of the Secwepemc Nation. Manuel is descended from a long line of activists – he’s the son of George Manuel, one of the first presidents of the National Indian Brotherhood, which later became the Assembly of First Nations. He served as Chief of the Neskonlith Indian Band for eight years, and was Chairperson for the Shuswap Nation Tribal Council for seven years. Manuel also headed the Interior Alliance and currently serves as volunteer Chairperson for the Indigenous Network on Economies and Trade (INET), which works with people on the community level and also internationally towards recognition of Aboriginal title and treaty rights. He has been a leading spokesperson for Defenders of the Land.
An earlier version of this article was published in First Nations Strategic Bulletin 12, 1-7 (January-July 2014). Part 1 in this series, “The Tsilhqot’in Decision and Canada’s First Nations Termination Policies” by Russell Diabo, can be found here.