Living true reconciliation

While summer rolled to an end, a truly significant ruling on Aboriginal title happened in Canada when the BC Supreme Court recognized the Constitutionally protected Aboriginal title of the Haida Nation to all of its territory. This declaration was built on previous court cases, co-management agreements and the ground breaking recognition protocol signed last year. Since 2003, and really since the Delgamuukw decision in 1997 defined the concept of Aboriginal title as a form of title within Canadian law, the province of BC and the Haida Nation have been preparing for this day. There is no First Nation in BC with a more secure grasp on its traditional and historic territory than the Haida Nation. It was only a matter of time.

When we talk about “reconciliation” in Canada we are, technically and most significantly I think, talking about the reconciliation of two different sets of laws. The Court in Delgamuukw implored the government of Canada to figure out how to reconcile Canadian law with Indigenous law. Reconciliation means this: how is power shared between two legal frameworks that may have different objectives, and different methods of governing. In 1851 when the Crown stopped making treaties in what later became BC, it inadvertently ensured that Aboriginal title remained unextinguished. Aboriginal title refers to the rights in land of First Nations that existed before contact with European law. In Delgamuukw the Court basically said that the Crown can’t just show up somewhere, plant a flag, and declare thousands of years of Indigenous rights to be extinguished. In other words, the idea of terra nulls, that the land was empty before Europeans arrived, is not a legal concept in Canadian law. The land was full. And the obligation on the colonial powers of Britain and Canada, acting in the interests of the Crown, was set out in the Royal Proclamation of 1763. That obligated colonial authorities to negotiate with the owners of these lands before doing anything else in Indigenous territories. After 1851, Canada just stopped doing that here in BC, and the consequence is that every action taken subsequently by the Crown is in doubt as to its legality under Canada’s own law.

Now it’s important to remember that it is First Nations who have been saying, for the past 175 years, that there is a need to negotiate land rights. The intention all along has been to create agreements that would be of mutual benefit to First Nations and settlers to these lands. In legal agreements and negotiations, First Nations have never said that existing private property is in doubt or that settlers should go home. It is First Nations that have led the way in inviting relationships that are sustainable and mutually beneficial.

Because Canada just stopped making agreements in BC, First Nations here retained all of their rights and title intact. Traditional and historic Indigenous land uses have continued, despite Canadian government actions which forced First Nations off their lands, created a cultural genocide, and, in the case of the 1862 smallpox epidemic, leaned into actual physical genocide as canoes full of infected people were towed up the coast from Victoria all the way to the Nisga’a and Haida territory, leaving death and destruction in their wake.

First Nations have been true to their position of land ownership since the very beginning. They are the rightful owners of their territories and they have desired mutually beneficial relationships with the Crown. In 1910 at Spences Bridge, a number of Interior chiefs made a declaration that led with an invitation to create treaties.

For all this time in British Columbia, colonial governments have just ignored these requests, trampled rights and title, ignored existing treaties and applied Canadian law as if there was no legally recognized set of governments and people already on this land. In 1973, the Nisga’a finally gained recognition of their existing rights and title, nearly 60 years after they first demanded it. Although it was a split Supreme Court of Canada that wrote the decision, the case led to a negotiation of rights and title that lasted another 25 years and culminated in the signing of the Nisga’a Final Agreement.

The treaty process in BC has churned along since 1992 and meanwhile, First Nations have also been active in the courts with a series of decisions that confirmed the existence of Aboriginal as a concept (Delgamuukw) and then found that it actually existed on the land (Tsilhqot’in). From the moment that Delgamuukw was settled it was clear that it would only be a matter of time before the Haida pushed the envelope on this.

September 30 is coming up and in Canada that is a day set aside for the commemoration of Truth and Reconciliation. Lots of folks will be wearing orange shirts and learning about residential schools or participating in other public activities. I will be on Haida Gwaii that day, for the first time in my life, working with a co-managment board who jointly steward the wildlife in parts of the Northwest Territories. That is a body that is actively engaged in reconciliation of laws, of knowledge, of ways of relating to land and animals.

In my mind, no court ruling is needed to tell me where I will be. I will be in what has always been Haida territory, visiting an island archipelago that has been governed sea stewarded from time immemorial by the Haida people. Canada is a slow learner with respect to Indigenous rights. From the very beginning First Nations have seen the opportunity to build something together with the settlers that were arriving in their lands and the governments that were exercising authority. Through centuries of being ignored, disposed, killed, re-educated and denied the means to argue for rights and title. First Nations have continued to ask Canada to be its best self, to be in active mutual relationship and see what we can do together. It sometimes takes court cases to hold Canada and Canadians to account by the terms of our own laws. I’m good with that too.

If you do nothing else on September 30, or any other day for that matter, do yourself a favour and follow some of the history of the invitation that First Nations have consistently made to Canada. Understand that, despite the protestations of some of Canada’s political “leaders” who court short-term gain from stoking racism and outrage and misinformation about land and rights issues. Remember that he work of reconciliation is fundamentally about how we will permanently live together here in ongoing mutually beneficial partnership. Canada has always been afforded the chance to do the right thing, the beautiful thing and the moral and just thing. At any time we can seize that chance. Let’s do it now.