“There could be no justice, if in the mortal struggle, the aggressor tramples down every sentiment of humanity, and if those who resist remain entangled in the tatters of the violated legal conventions.”

-- Winston Churchill

“The reality is that, without exception, every corporation doing ‘developmental’ business in Canada does so at the direct expense of and often with comparable impacts upon the ability of indigenous peoples to sustain themselves. The Canadian state itself exists on the basis of the expropriation of native land and resources, the subordination of native polities.”

-- Ward Churchill

In a unanimous decision the Supreme Court of Canada ruled that provincial governments must consult with First Nations about the use of disputed Crown land -- even if, as the public media corporation the CBC words it, “their land claims are unproven.” [1] This wording is obviously legally and morally odious. There is something logically awry in requiring a people who have lived on the land for thousands of years to prove their land claim to a settler people that have occupied the land since a few hundred years. Forcing the indigenous peoples to prove their claim in a settler court and pursuant to settler laws compounds this illogicity.

Yet the high court in its wisdom stated:

The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honor of the Crown, which must be understood generously. While the asserted but unproven Aboriginal rights and title are insufficiently specific for the honor of the Crown to mandate that the Crown act as a fiduciary, the Crown, acting honorably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. The duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. [2]

Louise Mandel, lawyer for the Council of the Haida Nation, noted, “The First Nations are the ones that have been teaching the Crown about honor.”

The court has also ruled that third parties -- the companies involved -- do not have to be involved in the consultation process. It was an affirmation of the 1997 Delgamuukw decision, in which the Supreme Court of Canada explicitly recognized the existence of aboriginal title, and forced provincial governments to negotiate treaties with First Nations. [3]

But First Nations, if coerced into negotiating, should only be doing so with the federal government. Under international law, custom, and convention, treaty making is only between nations. [4]

That the federal government reneges on its responsibilities is predicated on a divide-and-conquer strategy legislated into the Canadian government’s 1876 Indian Act. The act subverted “traditional political institutions” of natives “by provisions in the act that deliberately encouraged individual property rights and landholding of reserve lands.” [5]

The Indian Act imposed a top-down electoral system that militated against the traditional system of consensus. The outcome was “band councils [that] functioned as agents of the federal government in a model of colonial indirect rule rather than as representatives responsible for their own people.” [6]

It was an attempt to undermine sovereignty and nationhood by fobbing First Nations off on provincial governments while trying to municipalize reserves. This settler-driven municipalization process is exemplified in Kahnesatake. [7]

The First Nations are engaged in an ongoing struggle to retain and regain title to their land. Canadian governments’ perfidy, exploitative multinational corporate shenanigans, and egregious injustices of the Canadian settler court system against First Nations were clearly demonstrated in the case of the Lubicon Cree Nation. The Lubicon Cree were initially overlooked when the federal government came calling to secure treaties with First Nations in northern Alberta in 1899. Thereafter, the federal government willfully neglected its duty to look after the best interests of the Lubicon Cree while the Alberta government played the heavy, even trying to deny the Lubicon Cree Nation’s existence. The presence of oil and minerals in the Lubicon Cree Nation, spurred the national oil company, Petro-Canada, to form a consortium of ten multinational energy corporations covetous of this wealth. Later came Japanese logging concern Daishowa intent on cutting trees on Lubicon Cree territory. The tiny Lubicon Cree Nation had to take on different levels of government, multinational corporations, and a settler court system where some judges render decisions in an “utterly squalid fashion.” Scholar-activist Ward Churchill pointed out the structural flaw in having a settler judge, who is an elite part of the system, being asked to oppose that system. [8]

The trials and tribulations experienced by the Lubicon Cree Nation presaged the governmental and corporate chicanery toward the Haida Nation. The recent Supreme Court ruling stemmed from a case over sovereignty in an archipelago in the northwest corner of British Columbia, known as Haida Gwaii [“Land of the People”] by the indigenous inhabitants. The Haida Nation, which was never conquered and has never relinquished its title, claims an unprecedented sovereignty over the land, sea, and seabed. [9]

The Haida Nation v. British Columbia decision has been hailed as a victory for the Haida Nation. But the rights of First Nations pre-date Canadian confederation; therefore, logically and morally, Canadian government rule and law over natives is illegitimate. According to the Haida, their culture dates back to the time of the last ice age. After the ice departed their culture became entwined with the monumental old growth trees of the archipelago and the Haida people became master canoe builders and totem carvers.

The British Columbia government’s permission for US logging corporation Weyerhaeuser to clear-cut a tree farm license on Haida Gwaii incensed the Haida people, who have already reaped the disaster of shoddy logging practices that have decimated salmon runs in rivers. The Haida, who have received no compensation from logging on Haida Gwaii, estimate that $8 billion worth of raw lumber has been harvested in the past 50 years.

There is community support for the Haida. Environmental-Aboriginal Guardianship for Law and Education [EAGLE], a not-for-profit charitable law organization, noted “an interesting affirmation of the importance and value of community and local cooperation.” The majority of residents of the village of Port Clements -- although employed by Weyerhaeuser and not Haida -- had intervened in favor of the Haida before the Supreme Court.

The Haida Nation seeks a means to respect the “interconnectedness of all life forms, and the importance of living in harmony with the natural cycles of the seasons.” The Haida seek control of the territory they have long inhabited, so that they can continue to act as stewards of the land and waters.

Sovereignty is crucial to the survival of First Nations.

Self-government is seen by Indians as necessary to preserve their philosophical uniqueness. … They do not want merely a European-Western model of government that is run by Indians; rather, they want an Indian government that operates in accordance with traditional principles and customs, one that rests on a spiritual base and emphasizes group, not individual, rights. They want a government that will restore their relationship and natural environment rather than try to assimilate them into the dominant society. [10]

When the people of First Nations achieve unchallenged sovereignty, they will then be able to tackle the genocidal forces that undermine their culture and hence their existence. Corporate globalization and capitalism militate against traditional First Nation philosophy, which holds: “Human beings are free to develop innate capabilities, but only in ways that do not infringe upon the elements of nature.” [11]

To stymie self-determinism, to close the door to fair political and legal settlements only narrows the choices available to achieve the inherent rights of First Nations by peaceable means.

References:

[1]. “Governments must consult First Nations, says top court,” CBC News, 18 November 2004

[2]. See Haida Nation v. British Columbia [Minister of Forests]

[3]. The Delgamuukw/Gisday’wa National Process: A Backgrounder,” Delgamuukw Gisday’wa National Process

[4]. Ward Churchill, Struggle for the Land [Arbeiter Ring, 1999]

[5]. Leroy Little Bear, Menno Boldt, & J. Anthony Long [Eds.] Pathways to Self-Determinism: Canadian Indians and the Canadian State, [University of Toronto Press, 1985], p xii

[6]. Ibid, p xiii

[7]. Kim Petersen, “Colonialism and Kanehsatake: Are dispossession and forced integration ongoing?” The Dominion, 25 August 2004

[8]. Churchill, op. cit.

[9]. Kim Petersen, “The Struggle for Haida Gwaii: Sovereignty, resources and culture at stake, say Haida,” The Dominion, 6 November 2004

[10]. Bear et al, op. cit., p xvi

[11]. Churchill, op. cit, p 17