Finding ways to share this land of plenty

August 13, 2014 | God at work in the World
Will Braun | Senior Writer
The judges’ bench in the main courtroom of the Supreme Court of Canada.(Photo by Philippe Landreville / © the Supreme Court of Canada)

Indigenous issues are charged, complex and unappealing to many Canadians. Understandably so.

Competing histories and intricate legalities combine with strong sentiments to create a sort of national quagmire. No one feels comfortable about the situation of Indigenous Peoples in Canada, but meaningful change often seems impossible.

That is the context into which the Supreme Court of Canada issued two recent decisions. In June, the Court ruled that the Tsilhqot'in people of B.C. have title to 1,750 square kilometres of land. Essentially those lands are no longer Crown lands, but owned collectively by the Tsilhqot'in.

Governments can still impose development—as they can in anyone’s backyard—but they have to meet specific criteria. The Tsilhqot'in were not given a veto over development, but their bargaining position was bolstered considerably. 

In a statement, Kairos Canada called the decision “an encouragingly positive step for reconciliation between indigenous and non-indigenous peoples.”

The decision is most relevant for parts of the country in which treaties were never signed. That includes most of B.C., roughly 40 percent of Quebec, points east of Quebec, and possibly the two-thirds of northern Ontario covered by the dubious James Bay Treaty.

Indigenous reaction to the decision was jubilant. The federal government was not. In this era of supposed reconciliation, Ottawa sent lawyers to court to line up against the Tsilhqot'in people. If the feds had gotten their way, the court would have denied the Tsilhqot'in title to their traditional lands, sent them back to court and entrenched the status quo.

Fortunes were flipped on July 11, however, when the same court decided, again unanimously, in favour of the Ontario government's right to allow logging in territory of the Anishinabe people of Grassy Narrows in northwestern Ontario.

As per Treaty 3, indigenous populations were given relatively small reserves for their exclusive use, as well as rights to pursue their way of life over far larger tracts of land until such time as those lands were “taken up for settlement, mining, lumbering or other purposes” authorized by the Government of Canada.

Grassy Narrows started blocking logging trucks near its community in 2002 because clear-cutting was preventing members from hunting and fishing. Christian Peacemaker Teams [http://www.cpt.org/cptnet/2014/07/14/aboriginal-justice-reflection-river... has worked closely with the community since then.

The recent court case was about whether Ontario, as opposed to Canada, which is mentioned in the treaty, has the right to “take up” lands for logging. The Court said it does, so long as it fulfills the legal obligation to consult and accommodate Grassy Narrows. 

What the Supreme Court acknowledged—but did not weigh in on directly—is the fact that the “take up” clause in Treaty 3 is of questionable legitimacy. While it is in the government's written version of the treaty, there was often slippage or outright fraudulence involved in the translation services provided during treaty-making. The Court acknowledged that indigenous people entered Treaty 3 with the understanding that they could “retain their way of life, particularly their traditional hunting, fishing and trapping activities,” indefinitely, but that was not the central question before the Court and the judges did not make an issue of it. 

Katy Quinn of Kairos raises a further issue. “Free, prior and informed consent is the appropriate standard” when development will affect indigenous rights, she wrote in an e-mail. This is indeed the standard set out in the United Nations Declaration on the Rights of Indigenous Peoples, to which Canada was a reluctant and belated signatory. The Court did not go that far in either case and certainly the federal government does not act as though the consent of indigenous people is required for development.

While lawyers don't consider these matters particularly complicated, for most Canadians they are. But at the core of it all are three simple points:

  • We are all here to stay.
  • We live in a huge nation of tremendous abundance; there is plenty to go around, even if not every major development proceeds.
  • We need to learn to share.

This 147-year-old arrangement called Canada has worked much better for the settler population than for this country’s Indigenous Peoples. With or without treaties or Supreme Court directives, the honourable thing to do is to act generously and compassionately so that the God-given abundance of the land is shared equitably.

Of course, it is all a trifle more involved than that, but if we root ourselves in that premise, I suspect the sense of intransigence would lift. We'd find a way out of the narrative quagmire. Whether or not we adopt the narrative of sharing abundance is a decision not for the courts, but for individuals, governments and the church.

--Posted August 13, 2014

See: More viewpoints: “Finding ways to share this land of plenty for web-exclusive content related to the cases discussed here. 

The judges’ bench in the main courtroom of the Supreme Court of Canada.(Photo by Philippe Landreville / © the Supreme Court of Canada)

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