The Violence of the Letter: Land Claims and Continuing Colonial Conquest in Canada (Peter Kulchyski)
Canadian Dimension Magazine, January/February 2007 Issue
The recent struggle over lands in southern Ontario near Caledonia points to the continuing problem with land-claims policy in Canada. This sentence could be used to begin an article every few years, only the place names change: the recent struggle at Grassy Narrows, the recent struggle at Stoney Point, the recent struggle at Oka. While there is a sense in which the current land-claims policy goes back to the beginnings of colonialism in Canada, the recent permutations are worth attention. Any understanding of contemporary conflicts needs to be informed by a strong and detailed sense of what has happened historically, as well as what is happening today.
A Brief History of Aboriginal Title
Aboriginal people insist that their land ownership comes from their having lived upon and used the land since “when the world was new” (to use Dene elder George Blondin’s phrase). The Canadian state says that Aboriginal title derives from a set of legal documents like the royal proclamation of 1763. Guess who holds all the cards, and whose view gets the most attention?
The Royal Proclamation of 1763 was a founding constitutional document for Canada. After the seven years war the British needed to remove the military regimes that ran what was then New France and the other newly won British possessions. In October, 1763, a proclamation was printed that established civilian governors in each of the new British “possessions”; but about half of the document dealt with Aboriginal land issues. Fearing another rebellion in the wake of Pontiac’s attempts to drive the invaders back across the ocean, the government decided on a policy of appeasement with Aboriginal peoples and promised to respect their land rights. To do that, the proclamation stated that only the Crown, not private citizens or colonial governors, could buy land from “Indians,” and must do so in a fair and public process.
From the Glenbow archives
Although the American Revolution was inspired by a desire to avoid these strictures on grabbing Aboriginal lands, the policy embedded in the proclamation continued to be in force in British North America and, eventually, in Canada. For example, lands were purchased in straightforward cash-for-land deals with Mississauga Anishnabwe in order to help settle loyalists, including Joseph Brant’s Mohawk followers (this includes lands currently subject to dispute around Grand River). Later land purchases started to take the form of treaties, both land and political relationship agreements: The two Robinson treaties north of the Great Lakes and the numbered treaties on the prairies were more than cash-for-land deals; they involved recognition of an ongoing political relationship based on mutual respect.
However, after Confederation in 1888, a decisive court decision of the judicial committee of the Privy Council, which at that time acted as the supreme court for Canada, determined that the “title” discussed in the royal proclamation was not outright ownership, but rather a “burden” on underlying Crown title. Crown title was gained through so-called “discovery.” “Discovery” is a legal doctrine that held that the first European power to plant a flag on a territory gained exclusive jurisdiction there vis- -vis other European nations. The doctrine was deeply racist because it presumed local peoples were not at a level of “civilization” that allowed them land-ownership rights.
“Discovery” somehow came to have a legal status greater than Aboriginal title, gained through centuries of use and occupation. The last of the great numbered treaties, Treaty 11, was negotiated in 1921, and the Williams Treaty of 1923, a treaty regularizing the cash-for-land purchases that had been made in southern Ontario, was the last treaty negotiation for decades.
By now, the Canadian government, no longer worried about military threats posed by Aboriginal peoples, simply ignored the continued existence of Aboriginal title in any form.
In British Columbia the situation was worse than elsewhere. Except for a few treaties on Vancouver Island in the 1850s (the Douglas Treaties) and a part of Treaty 8 in the northeastern corner of the province, colonial administrators there refused to recognize the applicability of the royal proclamation. It took the Nisga’a nation, in a critical court case named after Frank Calder, founder of the Nisga’a Tribal Council, to push the Supreme Court of Canada to recognize the continued existence of Aboriginal title as having legal force in Canada in 1973. Then Prime Minister Trudeau was forced to back away from his assimilationist agenda, saying in response to the court decision that, “maybe [Aboriginal peoples] had more rights than we thought they had when we did the White Paper [policy proposals of 1969].”
(In)comprehensive Claims
In 1974, a year after the Calder case, an Office of Native Claims was set up by the federal government to deal with land issues in areas where Aboriginal title remained unsurrendered. Thus began the modern treaty process. A few years later, when the government realized that there were too many grievances associated with implementation of the earlier treaties to ignore, they refined the policy to allow for two kinds of land claims. Specific claims dealt with broken or unfulfilled treaty promises. Comprehensive claims dealt with nations that had not signed treaties. Today specific claims are known as “treaty rights entitlement” and comprehensive claims are known as modern treaties.
From the Glenbow archives
The first of the modern treaties was the James Bay and Northern Quebec Agreement of the mid-seventies, negotiated at the height of, and in order to resolve the conflict around, hydroelectric development in northern Quebec. Subsequent deals were slow in coming. The Western Arctic Agreement with Inuvialuit in the Northwest Territories in the mid-eighties was next. Eventually the Nunavut Agreement was signed, several Dene and M tis groups in the N.W.T. signed agreements in the nineties, as did several of the First Nations in the Yukon.
In all of these agreements the core government demand was the surrender or “extinguishment” of Aboriginal title. The language of these agreements is extraordinarily ruthless. For example, the much-lauded Nunavut claim says in part, “Inuit hereby cede, release and surrender to Her Majesty The Queen in Right of Canada, all their Aboriginal claims, rights, title and interests, if any, in and to lands and waters anywhere within Canada.” Similar language exists in each of the treaties and each of the modern treaties. Only two agreements, the recent Tli Chon (Dene) and the Nisga’a agreements, do not have an extinguishment clause but rather a clause stating that the text of those claims specify all the Aboriginal rights of the respective First Nations.
I call this the “exhaustion” model because it says the treaties fully “exhaust” Aboriginal rights and title. None exist outside the agreement. In some ways, this is even more totalizing or all-encompassing than the extinguishment clause. Trust the federal government, after decades of criticism over extinguishment as the basis of their policy, to come up with something worse!
Counter-tactics
Aboriginal peoples have responded with a variety of tactics. Some, like the Nisga’a, have been extremely patient, knowing that they will still be there when another generation of bureaucrats and policies come along, and taking the opportunity when it comes to negotiate a creative model. Inuit, frustrated at the unwillingness of the government to include self-government provisions in their land claim, opted for a public government model the creation of Nunavut as a way out of that impasse.
First Nations have been able to take the “one size fits all” approach of the federal government and pretty much tear it to shreds. The Yukon, Nunavut, Nisga’a, Tli Chon and other N.W.T. Dene/M tis claims all look quite different from one another. And, when the government “deals with” a land claim by rejecting it, many First Nations have been willing to take actions into their own hands, asserting their just sense of ownership over their traditional territories through blockades or occupations.
On the treaty-rights front I recently attended a meeting at Opaskwayak Cree Nation in northern Manitoba, where there was much evidence that “enough is enough” when it comes to erosion of treaty rights. Intense frustration with the lack of respect for treaty rights is currently leading to a grassroots, treaty-based alliance on the prairies, outside of existing political structures, in order to push for stronger recognition of treaties.
Continuing the Conquest
So, what is all this about? If the government is prepared to negotiate, giving big chunks of money to First Nations in exchange for them surrendering their land, where’s the complaint? Simply put, most First Nations see modern treaties as ways of reaffirming and asserting their continuing ownership of their traditional territories. The state sees modern treaties as a way of ending that ownership in “exchange” for much smaller pieces of land and a small chunk of capital. This is called “certainty,” and is the state’s stated goal. And why is certainty required? Because our old friend capital, private interest, needs certainty in or- der to “invest,” in order to continue to tear up the land at its unsustainable pace. Yes, capital accumulation lurks in the wings, and here the state fully acts as its representative. This, then, is “about” the conquest, that centuries-old process of dispossessing Native Americans in order to allow others to accumulate wealth. While in Spanish times the conquest took the form of murder and physical genocide, in our colder, politer nation and times the conquest takes the form of the “violence of the letter,” documents signed in back rooms by judges and negotiators and politicians, carrots on sticks that help construct elite Aboriginal leaders to manage the capital resources of their peoples by tying them to further destruction of their own lands (only now as investors).
The word “perfidy,” used by none other than Johnny Cash to describe the way treaties were respected in the United States on his never-surpassed album, Bitter Tears, does not only apply to nineteenth-century dealings, but goes straight to the heart of what has been happening in Canada in the last few decades.
For example, while the Inuvialuit in the western Arctic were negotiating their claim, the federal government insisted that offshore resources were not under consideration. Period. The so-called “pragmatic” Inuvialuit leaders decided they couldn’t change policy and, even though they sat adjacent to one of the largest oil-and-gas reserves in Canada (offshore in the Beaufort Sea), they settled a claim without gaining any of those reserves. Having got their agreement, when it came time to review policy a few years later, the Canadian government could then put offshore resources back on the table for those few other groups who might take small advantage of it.
In the Sahtu region, the government negotiated a land claim separate from a self-government agreement. It also insisted that corporate structures be set up to administer the land claim separate from the existing band-council structures. This has effectively lead to a dual power structure in the region, with under-resourced band councils having to go hat in hand to local land-claims corporations for funding. And, as a Mackenzie gas project starts to work its way down the valley, key communities in its path have a split leadership, two groups to negotiate with one another, as well as outsiders, which obviously weakens their bargaining power.
Will the federal government negotiate self-government there to ease and clarify the situation, in spite of the fact that the Sahtu Treaty itself says they “shall” do so at the request of the communities? Only with those communities willing to play their game and settle for self-government as a matter of administrating programs and services.
It will not, it appears, negotiate with Fort Good Hope, the key community on the pipeline’s path in the northern part of the region, which last February voted against a draft impacts and benefit agreement offered by Imperial Oil (not something that the pipeline-boosting Globe & Mail would ever consider reporting).
Quite some time ago, none other than Karl Marx (yes, him!) emphasized that the critical lever in the historical development of capitalism are “those moments when great masses of men are suddenly and forcefully torn from their means of subsistence.” This is at the core of what he called “primitive accumulation” (with few taking note of the fact that Marx uses anthropological language against European modernism, a revolutionary textual strategy).
In northern Canada though, it is the very means of subsistence, the land base, which remains capital and the state’s great incentive; to them, a few more impoverished First Nations are simply a happy by-product. And this is what is happening in Canada, a legacy of our oldest, most unjust, ineffective, unethical, unconscionable policy: land claims. The conquest is not a matter of ancient or even recent history: We, our generation, are carrying on the work of the conquest today. It is the core principle coded into the word “certainty” (and its two flunkies, “extinguishment” and “exhaustion”) that is the basis of an approach to land claims that is still with us.
