Protesters rally in support of the Wet’suwet’en nation Tuesday The Canadian government loves talking about reconciliation but is it in a position to do so?
On January 7, a heavily-armed RCMP force raided a camp set-up to block TransCanada Corp. (the company changed its name to TC Energy on January 9) from building a natural gas pipeline through unceded Wet’suwet’en territory.
The Wet’suwet’en people have occupied their territory since time immemorial. They have never given up rights and title to their land, nor have most of the other nations in the area known as British Columbia.
The British colonial government simply took this land, and denied that the original inhabitants had rights and title to it.
However, in 1997, the Supreme Court of Canada dismissed this claim in Delgamuukw v. BC. The court ruled that the B.C. government had no right to extinguish the Indigenous peoples’ rights to their ancestral territories.
The hereditary chiefs of the Gitxsan and Wet’suwet’en people fought this all the way up to the Supreme Court and won.
It is important for those of us living in Canada to understand the implications of this decision.
Delgamuukw v. BC Supreme Court defined Aboriginal title as “Indigenous peoples’ exclusive right to the land, and affirmed that Aboriginal title is recognized as an ‘existing Aboriginal right’ in section 35 of the Constitution Act, 1982.”
Of course there are limitations to what the Supreme Court can rule on, since it is part of the “Crown.” Since the Crown brought the Supreme Court into existence, the court cannot rule on the legality of the Crown in Canada itself and the way the Crown claimed sovereignty over Indigenous lands in North America.
Therein lies the problem.
As an internationally-recognized scholar of Indigenous legal traditions and Aboriginal rights, John Burrows points out in his definitive study of the Delgamuukw case, “It does not make sense that one could secure a legal entitlement to land over another merely through raw assertion.”
Similarly, Chief Justice Marshall of the United States Supreme Court once observed, it is an, “extravagant and absurd idea.”
All the assertions and doctrines Canadian governments have used to justify colonization can be boiled down to: Canada stole it, fair and square. This, of course, is not a solid base to build legal title, it is however the legal foundation of Canada.
Confused? Upset? I would be surprised if you weren’t. Maybe this knowledge might change a few long-held impressions about Canada.
What happened on January 7 shows the government’s disregard of the key findings of the Delgamuukw case:
1) “When it comes to occupation of Indigenous territory before the declaration of Crown sovereignty, it is sufficient to say that occupied land was integral to the Indigenous culture at the time of contact.2) “If present occupation is invoked as evidence of occupation before sovereignty, there must be a continuity between present occupation and occupation before the declaration of sovereignty. However, it is not necessary to prove a perfect continuity; the demonstration of a substantial maintenance of the bond between the people and the territory is sufficient. In this respect, the Supreme Court held that oral evidence could be admitted as proof.3) “At the time of declaration of sovereignty, this occupation must have been exclusive. This means that the land had to have been the exclusive territory of an Indigenous nation, although they could have shared it with another Indigenous nation.”Delgamuukw, by the way, was also the first case in which the Supreme Court gave standing to hereditary chiefs, acknowledging that hereditary chiefs have always been the leaders within Indigenous communities.What role do the elected band councils play you might ask?The elected chief and council system was implemented […]
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