Land ruling’s message to First Nations: You have no place in Confederation

The Numbered Treaties have always been contentious. First Nations view them as sharing agreements, while the federal and provincial governments as land surrenders. Amid a general refusal to earnestly discuss this gulf, the disputes end up in the courts, where there is an increasing perception of a First Nation winning streak. The Supreme Court’s Tsilqot’in decision certainly reinforced that view. But if Tsilqot’in is a “game-changer” in the relationship between provinces, industry and First Nations in non-treaty areas, last week’s Grassy Narrows decision on areas where treaties do exist affirms that the rules are still effectively the same.

There are two features of the decision that underwrite this belief. First, the court has recognized provincial government power to violate treaties. In Grassy Narrows v. Ontario, the Supreme Court suggested that since the province has jurisdiction over lands and resources, “owning the land” as the court said, they should have ultimate authority. So while First Nations have traditionally understood treaties as nation-to-nation and viewed the provinces as junior partners in the relationship, the Supreme Court sees that arrangement inverted and treaty First Nations as subordinate.

The only check in the exercise of provincial power in treaty territory is “the burden” of obligations owed to First Nation. These are three: consultation on potential treaty infringements; accommodation in the case of adverse consequences arising from infringement; and a fiduciary duty, which is the courts way of saying the province should minimize harm to First Nations. In this ruling the court does not comment on Ontario’s record and relies on a past decision to guide the province in alleviating its burden. The result is effectively the status quo ante, which has bordered on apocalyptic.

Known as Asubpeechoseewagong to the Anishinaabe, the community has dealt with residential school and Indian Act trauma typical among Indigenous peoples in Canada. But they have also had their territory flooded by hydro-electric dams, been forced to re-locate their community, been nearly poisoned out of existence by mercury contamination from a pulp and paper mill, and now watch as the source of their food, medicine and a viable economy is hauled away in logging trucks. Instead of addressing this made-in-Ontario tragedy, the province has continued to view its right to issue timber licenses as greater than the Anishinaabeg right to feed themselves.

The additional problematic feature of the Supreme Court’s decision is the shockingly one-sided understanding of history. In a very terse ruling there are two glaring omissions. In its understanding of Treaty #3, the court decided to rely on the text version as well as subsequent federal and provincial legislation. It neglected to consider the perspectives of the Anishinaabeg, including the oral version or the Paypom treaty (Grassy Narrow’s record of Treaty #3). Given the voluminous academic literature on the misleading nature of the written English versions of the Numbered Treaties, evacuating the understanding of the Anishinaabeg from interpretations of the treaty is simply unfair.

Unfortunately this is a theme in the decision. Reflecting on the history of land use in Ontario the court claimed that, “Ontario has exercised the power to take up lands for a period of over 100 years without any objection by the Ojibway.” Yet the history of the relationship between Ontario and the Anishinaabeg (as well as most other First Nations in the province) has been a history of conflict. Physical confrontation, court cases and protests are all endemic features of provincial land and resource management. The long list of Anishinaabe people jailed in Ontario because of these conflicts land is crystal clear evidence of their objections.

So while the case does implore provinces to consult, accommodate and honour treaties, the decision has a dark undertone: First Nations have no place in Confederation. If the province can infringe on the very treaties that led to its creation and which underwrite the existence of the country, there leaves little room for the so-called third order of government that many believe should be embodied by First Nations. Moreover, the courts have embraced a view of history where First Nations simply do not exist except as objects, or rather, burdens who must be managed by one level of government or another.

It is a disappointing decision with a number of implications. For provinces governed by the Numbered Treaties, the ruling means business as usual: consult, infringe, accommodate. For First Nations generally and especially those who do not have a treaty, the Grassy Narrows decision reinforces the Supreme Court’s unstated position in Tsilhqot’in that there is more power to be leveraged where treaties do not exist. In the eyes of the Court, treaties and the accompanying extinguishment of title are a dead-end for First Nations. Finally, for Grassy Narrows, it means that their very long pursuit of justice goes on.

http://www.theglobeandmail.com/globe-debate/land-rulings-message-to-first-nations-you-have-no-place-in-confederation/article19584153/

Advertisements

Closing the gap between Canada and Kanata: In thinking about what our country could become, we must be honest about our histories and include the perspectives of the 50-odd First Nations

Celebrating Canada’s birthday has always seemed kind of silly.

I say this as a citizen of the Anishinaabeg, a people who have existed for many centuries. So 147 years seems . . . quaint.

Of course, this probably wouldn’t be the case if we were celebrating Canada’s more authentic birthdate, Aug. 1, 1764. On this day the English and twenty-four Indigenous nations concluded negotiations at Niagara to extend The Silver Covenant Chain with the 24-Nations Belt, or simply, the Treaty of Niagara. The treaty permitted the sharing of the land across the eastern continent and mutual recognition of autonomy among distinct people rooted in peace, friendship and respect. Without it there would be no Canada, neither in ideational nor material terms.

But too often this history is overlooked or relegated as an Indigenous narrative. It is outside popular mythology and so a good example of the gulf between Canada and Kanata. We often talk of two solitudes in reference to anglophones and francophones, but the term is most apt in the context of the disparate understandings of history among Indigenous peoples and Canadians. Whether it is the founding of Quebec City, the character of John A. Macdonald, political changes in postwar Canada, the dissolution of constitutional talks in the late 20th century, or any treaty ever created here (even the new ones), we understand our shared past and our contemporary reality in divergent ways. Indeed, too often Canadian mythology is actually a damaging misrepresentation. It is an understatement to say a truly “national” narrative remains elusive.

So thinking about what Canada could become (or, “what is in us to be?”) I think about understanding. Not the same old discourse of peaceful acquisition, armchair policy expertise, or a Norval Morrisseau on the wall, but substantive understanding among Canadians of Anishinaabeg, Haudenosaunee and Mushkegowuk perspectives (as well as the other 50-odd nations).

Every kid in school can learn the 13 provinces/territories and also the few dozen original jurisdictions.

Indigenous languages can have official status, but more importantly, be seen and heard on the land and in cities, known by everyone. We can be honest about the birth, life and times of Canada. If all of this is in us to be, we might have something to celebrate.

The Anishinaabemowin version

An approximate Anishinaabemowin version (Gchi’mnissing dialect), translation by Jeff Monague of Beausoleil First Nation:

Goopjinaagwat gwa gchi nendmong dbishkaamgak iw sa ki Canada noongo ezhinkaadek. Mewzha aazhgwa Anishinaabek maa gii awak. Shki awan shwiingo eta Canada. Wishme shwingo nendidsa sabboondgizat Canada. Anishinaabek miinwaa Canada, debwetaadiwinan gii zhibiigemin mewzha. Mii gwa iw nake Canada gaa zhichkaadek. Mii dash iw aadsokaanaamnaan. Gkina weya gwa gda dbendaan. Gkina gwa weya naasaap wdaa awak.

Aabdek gwa gdaa debwewak Canada wgaa kidawaak Anishinaabek. Debwewin eta maa te biinjaying niw Aadzookaanong. Naasaap gwa daa kendaamin. Mnabmaadziwin ge ga kendaamin. Nga kendaamin dash ezhi piitendaagok iw sa enaweying. Giizhpan maanda zhichkeying, mii iw pii wii waawiinjgaademgak iw sa ki Canada noongwa ezhinkaadek.

http://www.thestar.com/news/ken_dryden_canada_day.html