Land & The Indigenous Population

June 21, 2017 § 3 Comments

Today is National Aboriginal Day in Canada.  The point of this day is to recognize the contribution of the indigenous population to Canada, as well as to reflect on the cost of imperialism and Canada’s systemic attempts to remove the indigenous population from the national landscape.  In Canada, it wasn’t as straight-forward as in the United States, where the government of President U.S. Grant and his successors used the US Army to clear the indigenous population off the Great Plains (and, of course, there’s Andrew Jackson’s Trail of Tears in the Southeast in the 1830s).  In Canada, outright violence was relatively rare, though it did occur.  Germs and disease did a lot of the work, to be fair.  As did European expansion across the continent, which affected migration patterns, and populations, of the wild life the indigenous population depended upon.  And then there were assimilative techniques, designed to make the indigenous population into good (white) Canadians.  The basic legislation covering the government’s interaction with the indigenes, the Indian Act, is the base line here.  But then there were things like the residential schools, a horror in and of their own right.

In short, Canada has historically abused and committed violence upon the indigenous population.  And it’s not like it’s got any better in recent times.

Prime Minister Justin Trudeau came into office in 2015 on the promise of fixing all the ills of Canada’s toxic relationship with the First Nations.  This was in the wake of the Idle No More movement that began in 2012.  But Trudeau hasn’t really delivered (yet, I remain optimistic), other than an inquiry into the Murdered and Missing Indigenous Women. But even that seems in danger.  More recently, Tragically Hip frontman, Gordon Downie, has become an ally of this movement.  So, for better or worse, the issue of indigenous history and indigenous rights is, at the least, on the national radar.

But twice in the past week, I have been told on social media that the indigenous population didn’t hold land in the way we conceive of land-holding and therefore, their claims to any land in Canada is null and void.  In short, as one interlocutor on Twitter said, ‘The Indians got conquered, they’re done.’ Another says that Canada was not founded by the indigenous population.

This reflects a story I read in the New York Times over the weekend about an élitist fishing lodge in Northern Quebec that is on unceded Innu territory.  There, a group of Innu delivered a proclamation to the manager of the fishing lodge that, amongst other things, demanded the land be handed back.  The Innu are essentially calling for Quebec to re-acquire this land along the Moisie River and give it back to them.  They will then grant usage to the owners of this fishing lodge, wealthy Americans all of them.  The president of the lodge, though, Donald C. Christ, a former partner at a prestigious New York law firm, however, states that, “‘I don’t think it will bring about any changes,’ he said. ‘There are many places in Canada where people are trying to undo history.'”

And this, I think, gets to the crux of the problem.  Canada as the nation we know it now is based primarily on British common law and European notions of property ownership.  Essentially, de Champlain, Cartier, et al. planted the French flag on the territory that became Canada and said this land now belonged to the King of France.  Other territories were claimed via the British in a similar manner. And, of course, the French ceded their interest in the land after the Conquest in 1760.  But, essentially, this argument states that history begins with the claiming of this land for European kings in the 16th-17th centuries.  Prior to that, there was no history of the land, legally speaking.

In essence, then, the land that comprises Canada now was obtained via sleight-of-hand and imperialism, as a foreign system of land ownership was instantly enforced, one that was incomprehensible to the indigenous population.  Not because of language barriers, though those existed, but due to cultural frameworks.

But the problem with this argument is that it’s wrong.  In 1763, following the conquest of the French territories of New France, Great Britain suddenly controlled the Eastern seaboard and the interior of North America as far west as the Mississippi.  And there were ongoing tensions in the Thirteen Colonies concerning land in the western expanses of the colonies.  Thus, King George III issued the Royal Proclamation of 1763.  Amongst other things, the Proclamation declares that the Crown must negotiate and arrange the sale of indigenous lands, through treaties, before it could be settled by Europeans.

In other words, George III recognized the sovereignty of the indigenous population of his territories in North America vis-à-vis the land.  And, essentially, this extended to the point of contact between the indigenes and the British, at that moment, the land was recognized to be in the possession of the indigenous population.

Thus, in some parts of what is now Canada, treaties were struck between the Crown and the indigenous nations.  Most famous of these are the so-called Numbered Treaties, that cover most of the land between Ontario and northeastern British Columbia.  To call these fair trades, however, is a misnomer.  The terms of treaty were usually imposed by the Crown (in right of Britain or the UK prior to 1867, and Canada after 1867).  The First Nations had only so much room to negotiate better terms for themselves.  And even after the treaties, Canada continued to whittle down indigenous land via land surrenders, some of them obtained through nefarious means.

In other parts of Canada, most notably the bulk of British Columbia, there are no treaties.   The Royal Proclamation was, in essence, ignored.  Thus, the Crown in Right of Canada, and the Crown in Right of British Columbia have, since the early 1990s, been engaged in a glacial-paced set of treaty negotiations with the First Nations of that province to settle land claim issues there.

At any rate, the claim that the advent of Canada negated the indigenous claim to the lands that now comprise the nation is fallacious.  And unlike what Christ, the American lawyer seems to think, this is not the undoing of history.  It is facing up to history and Canada’s imperialist past.

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§ 3 Responses to Land & The Indigenous Population

  • roughghosts says:

    Thank you for this. I recently returned from a visit to Australia where I was privileged to spend time in Northern Territory as part of an event raising funds and awareness for the work of an Aboriginal women’s council. The parallels between Canada and Australia with respect to issues with Indigenous peoples presently and historically are striking. The women were very keen to engage in conversation about this, but I was, at times, embarrassed that my own full understanding of the situation in Canada was more limited than it should be.

    • Thanks! I spent 8 years working in the field of indigenous law & litigation, and it was eye-opening. I mean, I always knew it was bad, and spent a lot of time on the relationship between the Crown and the indigenes in Canadian history in undergrad & graduate school. But. Those 8 years…

  • […] he reflects a deeply racist Canadian society.  I have written about this numerous times (here, here, here, and here, for […]

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