Before contact, the land that we now call Canada belonged to the First Nations. Since contact and over the centuries, it has been moving over to settler control through various colonial governance mechanisms. Even the Indian Act's 0.2 percent land base (covered by Indian reserves in Canada, despite that Indigenous territory extends far beyond) faces encroachment.
Since contact, the most urgent and important ‘law’ issue in this country has been the control of land (see the NCH poster How was Canada Founded). To that end, federal courts play a much larger role in the lives of the Indigenous peoples than of most other people. The Truth and Reconciliation Commission (TRC) described Canadian law as a tool for the dispossession and dismantling of Aboriginal societies. Canadian laws, largely developed by the Supreme Court of Canada (SCC) judges (unelected and unrepresentative) and without input from Indigenous peoples have had a direct impact on Indigenous dispossession. Indigenous peoples, who were already here with their own laws, have been forced to submit to the laws and institutions of the new arrivants and have their land base taken.
Furthermore, law and policy go hand in hand. There are a number of land settlement processes in Canada. One of them is the Comprehensive Land Claims policy. It is a federal policy introduced in 1973 that outlined a political process to resolve all outstanding land grievances on all Indigenous land in Canada that are not subject to historic land treaties. A number of modern treaty negotiating tables have opened up due to that but they follow a number of non-negotiable federal core mandates. For example, the legal jurisprudence that protects Aboriginal title lands does not apply on modern treaties with fee simple lands. This policy works out to be an extinguishment of Indigenous rights and the land dispossession continues.
In 2016, the then Justice Minister Jodi Wilson-Raybould released the following statistics from the Department of Justice (DOJ):
Total number of cases with DOJ: 43,000 | Total liability of these cases: approx. $1 Trillion
Of above, number of cases that are Indigenous: 4,300 (10% of total); liability of Indigenous cases: $840 billion (84% of the total).
Also, four years ago, Natural Resources Canada estimated that the development companies would invest $431 billion in Canada’s North by 2025. Most of this spending was for projects near or on Indigenous lands.
To "kick-start" economy, major environmental decisions are taken unilaterally that impact Indigenous lands. A recent example is Bill 197 and the altering of 20 pieces of environment legislation in Ontario by Premier Ford. These amendments have made changes to the Environmental Assessment Act and eliminated environmental consultation regarding the use of treaty lands.
Protection of Indigenous sovereignty land rights in courts has become fundamental to the continued existence of nations as distinct peoples and cultures. A massive body of laws, statutes, regulations, treaty interpretations, band codes and customs need to be navigated to solve the problems created by two centuries of conquest and its established structures. Onerous evidentiary burden for Aboriginal title is on the claimants. Resource-strapped, Indigenous peoples have to take to expensive litigation to prove their rights and have them recognized.
One of the biggest struggles is to educate those within the court system who are issuing decisions without adequate understanding and consideration of Indigenous history and worldview. "That's where I think a shift would be made if a judge was aware of the history," says Beverley Jacobs.
Over the decades, laws have enabled institutions and infrastructures to be built up and get concretized into a complex and widespread system that serves the settlers and marginalizes the Indigenous people.
Between 1967 and 2020, there have been 13 major research reports, including the Royal Commission on Aboriginal People (RCAP), Penner Report, Ipperwash Enquiry, Truth and Reconciliation Commission (TRC), National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG). Each lays out detailed and often repeated recommendations. These reports have led to a rise in public awareness and acknowledgement. However, the recommendations from these reports are not being followed.
Minority groups/immigrants cannot assert any right to sovereignty or to a pre-contact land base, as they have no pre-contact connection to Turtle Island. Immigrants are expected to assimilate into the Canadian society.
Indigenous peoples did not immigrate to Canada.
Indigenous nations' own languages best describe and name the concept of Indigenous Legal Order. NCH provides a general description of this concept as a frame of reference for an Indigenous nation's distinct and self-determined way to maintain harmony, justice and governance in its community and with outsiders. NCH considers that Indigenous laws and Indigenous legal traditions and Indigenous governance are all a part of Indigenous legal orders.
WHAT COURT DECISIONS IN CANADA EMPOWER INDIGENOUS LAND RIGHTS?
There is need for innovation in legal empowerment for Indigenous communities. One of the ways to achieve this is to ensure that the communities are able to harness that power from the cases that assert their sovereignty and land rights. For example: The SCC in the Tsilhqot’in and the Delgamuukw decisions says that Indigenous peoples hold underlying title to lands based on their prior occupation. Please visit NCH's research page for further information.
· RISE IN AWARENESS of Indigenous issues in Canada, particularly the acknowledgement amongst non-Indigenous people of the genocide that took place in the founding of Canada and of the apartheid-like Indian Act. Awareness also of the continued rise in systemic issues for Indigenous peoples when it comes to poverty, income disparity, child foster care, incarceration, violence and environmental impact.
· RISE IN MOVEMENTS, locally and globally, that are in solidarity with Indigenous people movement. For example, the Climate Action, the Wet'suwet'en and the Black Lives Matter movements of 2020. The recent toppling of Canada's first prime minister's (who was also an architect of the Residential School system in Canada) statue in Montreal.
· RISE IN NUMBER OF INDIGENOUS Lawyers, Academics, University Chancellors, Deans, School Teachers, etc.
· RISE IN SCHOLARLY WORK around Indigenous Legal concepts.
· RISE IN ALLYSHIP, especially at the national level. For example,
(i) Political promises ("no other relationship is more important") by the Liberal government when they came into power in 2015, reiterated in re-election in 2019. BC legislature adopted UNDRIP implementation in 2020. Overall rise in Indigenous representation in the House of Commons.
(ii) Corporate houses moving to Corporate Social Responsibility (CSR) in Indigenous issues.
(iii) Associations like the Federation of Law Societies of Canada (FLSC) agree to adopt TRC’s Calls to Action as it pertains to Indigenous legal orders.
In response to disastrous court opinions and legislative attacks on the status of tribal governments in the USA, tribal leaders formed the Tribal Sovereignty Protection Initiative (TSPI) in September 2001. A part of TSPI is the Tribal Supreme Court Project which is a nationwide brain trust in the USA of more than 300 attorneys and scholars who collaborate to boost tribes’ arguments before the Supreme Court. It is a collaboration between National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF) and it monitors litigation and coordinates strategy of preparation and submission of amicus briefs on behalf of tribes or tribal organizations.
This Project has monitored 400 Indian law cases as they made their way through the courts, and invited their network to collaborate on petitions, arguments, and representation for the more than 150 that have made their way to SCC level. The project has become a clearinghouse for information. The recent court ruling that confirmed an area of Oklahoma as an Indian reservation seems to have been two decades in the making.
Joel West Williams, a Cherokee attorney who leads the initiative for NARF, says, “The quality of tribal advocacy at the court has substantially improved,” not just with regard to representation but “the whole package of court presentation.” Yet despite the groundbreaking intertribal collaboration, the Indigenous project has only begun to win consistently in the past five years, since the arrival of Justices Sonia Sotomayor, Elena Kagan, and Gorsuch. The Tribal Supreme Court Project is already working on a Firth Circuit case concerning the Indian Child Welfare Act, which is a vital issue for Indian Country today. It could be the dawn of a new judicial era, catalyzed by the Tribal Supreme Court Project and by new justices whose opinions reflect an evolving understanding of Indian law and history. For the source of this information, click here.
Law is the battlefield on which all great social struggles take place ----- Felix Cohen, lawyer who shaped Indian law early 20th century in USA.
The mechanisms that enabled land settlement in Canada.
Copyright © 2020 NationhoodCouncilHouse - all rights reserved