Amidst a resurgence of First Nations assertion of rights and title, can Will and Kate’s visit to unceded territory refocus Canadians’ attention on our broken relationships with First Nations?
I was out of my comfort zone on the Fort Rupert Indian Reservation.
The year was 1994. I was 24 years old and tagging along with a masters candidate from UVic who was following the development, in its earliest stages, of DFO’s Aboriginal Fisheries Strategy. On the agenda were a series of meetings between bureaucrats and Indigenous leaders – precipitated by Regina vs Sparrow, the paradigm shifting Supreme Court decision that breathed new life into Indigenous resistance to unchecked industrial activity trampling their traditional territory.
The incident that sparked the trial is easily summarized: Ronald Sparrow, a member of B.C.’s Musqueam band, was charged with fishing with a net longer than that permitted by his subsistence fishing licence in contravention of the Fisheries Act. Sparrow did not dispute the facts; on the contrary, he argued in his defence that he was exercising an existing Aboriginal fishing right. In doing so, he reminded Canada that our constitution was written to protect the rights of the inhabitants on the land at the time of colonization — unless those rights were extinguished by treaty or war.
As I sat off to the side of a table with Fort Rupert elders and fisherman on one side — DFO regional managers were on the on the other — I didn’t realize I was witnessing the beginning of negotiations for the return of resources (that we either stole or destroyed) to the people who owned them.
The previous evening I had slept in a windowless, moldy house without drywall or beds. In that moment, I made a visceral connection between the poverty around me and the Canadian Governments use of cultural oppression, forced assimilation and resource theft as a response to the ‘Indian Problem’ (as termed by Duncan Campbell Scott). In that moment, I realized the construct that is B.C. is not accurately described to us in the books we read in school.
Most British Columbians have been ill-served by provincial governments who have both failed to educate citizens of their history and inform corporations of their responsibility. In fact in most ways, our province has been living in a state of denial about the need for a bridge between Indigenous nations and the rest of us. This week’s Royal visit to some of the most contentious soil in North America is a moment we should seize to reflect on how the Crown’s relationship with Canada’s Indigenous peoples is central to the resource disputes caught in the cross hairs of contemporary British Columbia.
The Canadian tradition contains many summers of discontent in which Indigenous communities have been forced to rise up to defend or fight for land rights that should have been guaranteed. This summer’s attempts by the Musgamagw Dzawada’enuxw to evict Broughton fish farmers — like the Heiltsuuk eviction of the herring fishermen, the Coastal First Nations eviction of the Trophy hunters and the Tsilqhotin’s eviction of all mineral and forest tenure holders — is the new norm.
I started paying attention to those battles in the mid 80’s when Haida Watchmen and St’át’imc elders blockaded roads and rail lines to protest the expropriation of forests on their territory, and Sto:lo fisherman occupied DFO offices and blockaded commercial fisheries to regain salmon allocations. In fact, our high school outdoor education program, in an expression of solidarity, raised enough money to cloak the Watchmen in Helly Hansen as they stood shoulder to shoulder across the roads through pouring winter rains on Lyall Island.
Those early (as seen from my perspective) pitched battles over a watershed, a forest or fish, seemed to take a pause as Canadian court rulings forced government to create policy that acknowledged and facilitated access to traditional resources without fear of harassment, reprisal or arrest. Though ignorance of the law is not an excuse, it’s hard to blame average British Columbians for failing to grasp both the roots or contemporary expression of First Nations resource claims. It’s not on the curriculum in elementary or high school. You pretty much have to seek the information out yourself, and for most of us who live in cities, we don’t see the mythologized ‘Indian on the Land,’ and have forgotten to properly attribute the many elements of our culture transferred to us from the epic societies that existed in the space we occupy. Governments, on the other hand, aren’t eligible for that kind of pass.
In Sparrow, the Supreme Court of Canada considered for the first time the scope of section 35(1) of the Constitution Act, 1982, which recognizes and affirms the ancestral and treaty rights of the Aboriginal people of Canada. The heart of this decision, which has been affirmed and expanded upon in Marshall, Delgamuukw, Tsilhqot’in and Ahousaht, is this: resource and land rights are guaranteed by the Crown and cannot be unreasonably infringed upon. If they are infringed upon, they can only be done so if broad and meaningful consultation has taken place and compensation is provided.
Let me ask you this: Can you count the number of times you have listened to a news broadcaster announce that politicians are unveiling new plans, taking new approaches or committing themselves to finding a solution to the unequal relationship between Canada’s settler and Indigenous populations? If you tried, could you possibly list the number of times you’ve read phrases like “new era of trust,” “reconciliation for past injustices,” “new relationship with Canada’s First Nations” being attributed to or promised by someone seeking or holding public office?
Every single government in each and every jurisdiction in this country I have known since I became politically aware has been subject to, and is responsible for, our constitution the same way those governments were responsible for upholding common law in the British (and French) parliamentary traditions before repatriation. As proven by successive and expanding judicial decisions when it comes to Aboriginal rights and title, with few exceptions those governments have done their best to ignore it.
To do otherwise would radically restrict industrial access to Crown land, particularly in the unceded lands of British Columbia.
The Royal visit to notable hotbeds of First Nations resistance is occurring at the same time Haida, Heiltsuk, Wet’suwet’en, Tsilhqot’in, Nuu-Chah-Nulth Kwakwaka’wakw, Gitga’at and others are dramatically expanding their legal jurisdiction over larger territories and pushing back industrial intrusion that has been sanctioned by contemporary federal and provincial governments who only acknowledge its illegality when forced to do so by the courts. While I acknowledge that a blog is not the space to attempt an explanation of constitutional history, especially from the pen of someone like myself with zero legal training, I’d like to think Will and Kate are here to remind us that embedded in that document are these words written in 1763 (paraphrased to modern english):
We require – all persons who have either wilfully or inadvertently seated themselves upon any lands which, not having been ceded to or purchased by us, are still reserved for the Indians to remove themselves from such settlements.
Over time, my own ignorance is fading. I walk the shores in front of my home that were literally manufactured by this land’s forbearers to cultivate shellfish. I see how Hemlock bows were placed in the water to harvest Herring roe without removing the adults from the food chain. I just got back from a fishing trip to B.C.’s last intact major watershed, the Skeena, where large scale salmon fisheries utilized by thousands for sustenance and trade operated without interruption or decline for millennia. They are only shadows of their former selves, and it’s not Gitxsan who pushed them to the brink.
Contemporary rights and title claims are the very “rule of law” realities that our constitution and its entrenched documents like the Proclamation of 1763 deliver. It is for the better if everyday people take the time to learn a little about them. They contain signposts towards true, as opposed to proclaimed, reconciliation. For those politicians who’ve succeeded in winning office, it is not only incumbent, to not do so is illegal. Do our governments really wish for a new relationship with the indigenous people? Taking the following steps would add a measure of credibility to empty rhetoric:
- Compensate fish farmers to whom you illegally granted tenure, clean up their mess and restore the health of our wild salmon runs. The next time you want to situate an aquaculture operation in Kwakwaka’wak or Nuu Chah Nulth territory, ask first.
- As the Haida just demonstrated, hereditary chiefs — not band councils — hold the power, so if you are up for negotiating, say, a major LNG terminal, get the right people at the table.
- If, despite all evidence to the contrary, you still think building bitumen export pipelines to the coast is a winning political strategy, start the review and consultation process from scratch.
- Withdraw the permits for the travesty of epic proportions that is Site C. You would be doing taxpayers a huge favour.
- Acknowledge that 50 First Nations across North America have signed an unprecedented Treaty Alliance against all future oil sands expansion. Denying this new reality will not make it go away, and only through a genuine commitment to a new nation-to-nation relationship will Canada successfully chart a course to toward true reconciliation.
During this fall’s Royal tour of B.C., Will and Kate chose to visit key epicentres of indigenous revival. I’d like to think that sends a signal that the crown, after decades of abstaining, is paying meaningful attention, and that the proclamation by the Trudeau government to build a new relationship with Indigenous people is based on action instead of words.