Aboriginal law is very frustrating to study and practice. As I’ve pointed out before, Aboriginal law is not the study or practice of indigenous legal traditions but rather is the way in which the Canadian state mediates its relationship with native peoples. Aboriginal law exists squarely within a legal paradigm that is defined solely by the Canadian state. If Canada deigns to include its interpretation of aspects of indigenous legal traditions then it will do so according to its own legal principles further warping what is almost always already a poor translation to begin with.
If all this were obvious right away then ‘Aboriginal law’ would probably not be so frustrating. If it were exceedingly clear to everyone that Aboriginal law is all about a colonial nation retaining its claim to sovereignty and dedicated to shoring up its claim to title in lands throughout Canada, then that would be a huge success. All of us could acknowledge that Canada’s entire ‘legal’ approach is based on self-interest and that certain core principles will never truly be up for negotiation as far as Canada is concerned. That would be a very important thing to recognise.
It is not the case however, that this fact is widely understood. That is because Aboriginal law is couched in liberal terms of respect and rights, and to be fair, I think many of the lawyers and bureaucrats administering the Indian Act and various other legislative or procedural regimes related to native peoples in Canada truly believe that they are doing their utmost to make things right. After all, have we not moved far beyond the day of smallpox blankets, forced relocations, military force, Residential schooling and interference?
The rhetoric has changed somewhat from the days when men rode around the west carrying boilerplate Treaties for signing…but it hasn’t changed that much. Right now, hundreds of settlements are being negotiated across the country to settle various claims by First Nations over stolen lands, broken promises, damages and so on. Claims that sometimes go back hundreds of years and which have been pursued doggedly by those First Nations to no avail. The way in which these settlements are being negotiated does not involve a substantially different approach from the one Canada took back in the grand old days of Treaty making.
If you ever get the chance to take a look at even a single claim’s history, please do. It is an eye-opening experience. The Department of Justice in cooperation with INAC has a Litigation Management and Resolution Branch (LMRB) which conducts an risk analysis of claims against the Crown by aboriginal peoples. This analysis often contains a lot of historical research if the claim goes back any length of time. What these documents almost invariably show is that the claim has been pursued almost without pause since the problem first arose. Band Council Resolutions sent to Ottawa to petition a resolution to the conflict…letters sent by individual Chiefs or members of the community. Correspondence between Indian Agents and other agencies on the matter. Protests, actions, negotiations, meetings, promises, studies, more meetings, more resolutions…hundreds and hundreds of written documents outlining just what the community has done to press its claim, year after year, decade after decade and yes sometimes century after century. It is un-fucking-believable, if you can pardon my strong language.
This research is undertaken in order to assess what risk Canada faces if the issue were to go to court. When it is complete, Canada may choose to negotiate a settlement, or it may decide that they have a good shot at winning the case if it proceeds to litigation. The research done is not necessarily going to be handed over to you, no problem, but many Bands have copies of these document sets pertaining to their own claims and the research is certainly reproducible if one were to try to follow the thread themselves. Of course the Department of Justice has a lot more money and resources than the average researcher…but the documents are out there in various archives.
I bring this up because it has really brought home for me how long the struggle has gone on to no avail. I think there is a perception out there that communities just wake up one day and decide to sue the Government for this thing or the other, but that is not reality. Most communities have long-standing grievances that simply have not been settled. Why?
For a long time, Bands were prohibited by the Indian Act (s.141) from raising money or using Band funds in order to pursue these claims. They could not hire lawyers. They could only send letters and try to get someone’s attention. The Federal government also liked setting up various new hoops to jump through. A Land Claims Commission here, a new Specific Claims process over here…processes so labyrinthine that even the people running the things didn’t quite know how they worked. Processes that spanned decades sometimes and often came to uncertain or discredited conclusions. All that work and effort…the research and community consultations…down the tubes and hey here’s a new process and wouldn’t you folks like to try out our new and improved way of screwing you for another few decades?
The numbered Treaties (in the category now of ‘Historic’ Treaties) were full of surrender clauses. Here is the text of Treaty 6, which says:
The Plain and Wood Cree Tribes of Indians, and all other the Indians inhabiting the district hereinafter described and defined, do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors forever, all their rights, titles and privileges, whatsoever, to the lands included within the following limits…
Every single numbered Treaty has a similar clause. Surrender, cede, release, yield…give up your land forever and ever, and that land now belongs to Canada, thank you very much. The Confederacy of Treaty Six Nations provides a good overview of Treaty Six nations’ perspective on the principles of their Treaty, so I’m not going to go into detail on how our view differs from Canada’s on the whole issue of surrender of lands and rights.
After a case in the Supreme Court called Delgamuukw, the Crown suddenly realised that vast tracts of lands including almost all of present-day British Colombia, as well as huge swaths in the north and pretty much everything east of Ontario probably did not belong to Canada. What!?
Since then, a process of ‘Modern Treaty-making’ has swung into high gear, not just in BC but all over the country. In addition, there are Specific Claims processes which are different from litigation negotiations which are different from Comprehensive Claims which are different than Treaty Land Entitlement processes and so on. There are other claims that do not quite fit into any of these nice little categories which may still be under negotiation with Canada. Very, very few of these agreements go to court or get seen widely but it is a process occurring with deadly earnest in the background.
Anyway, the Government of Canada claims it’s moved beyond surrender clauses in its ‘Modern Treaties’ and settlement negotiations. I suppose even they realise that it’s too much to say, “hey and if you want us to finally address your longstanding concerns, you have to promise us that this land is ours forever, okay? I mean okay so it might not have been up until now, but whatever, just sign this and surrender it for all eternity so that issue can be settled. Oh by the way, we need to extinguish all your other Aboriginal rights too.”
Does that mean that the Feds have stopped trying to make sure that they can say they own all the land in Canada and extinguish Aboriginal rights whenever possible? Pffft. There were surrender and extinguishment clauses in Settlement Agreements even in 2007, like this one from the Metepenagiag Mi’kmaq Nation:
The First Nation hereby absolutely surrenders to Canada, pursuant to the provisions of sections 38 and 29 of the Indian Act, all rights and interests of whatsoever kind and nature which the First Nation and its members and their heirs, descendants, executors, successors and assigns, past, present and future, may have had, or may now have, in the lands described as follows…
Na. The ‘kinder gentler’ negotiations are very recent.
Modern surrender clauses
The Feds use new jargon now. First they make you feel good with ‘non-derogation’ clauses that generally look like this one in the Yukon Northern Affairs Program Devolution Transfer Agreement :
Nothing in this Agreement shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.
Blah blah blah…basically this says that you aren’t giving up your aboriginal rights, your section 35 rights or any Treaty rights you may have. Whew, dodged that bullet!
Except the next phase of these newer, kinder Settlement Agreements essentially say this:
Notwithstanding (the non-derogation clause) the Parties agree that any person who holds or acquires any title, right or interest…shall continue to be entitled to the quiet enjoyment of their said title, right or interest…without risk of a claim, legal or otherwise, by the First nation (or any entity claiming on its behalf) based on any existing Aboriginal or treaty right to the said lands.
No evil ‘surrender/release/cede/extinguishment’ words in there, nice hey? Except what this is actually saying is: “You aren’t giving up any Aboriginal, s.35 or Treaty rights you might have but you agree never ever to exercise or claim those rights once you sign this Agreement.”
It’s slightly more complicated than that, mind you. There is a crazy patchwork of case law out there which regulates what rights can be exercised on Crown lands versus private lands and what have you. Some of that could still apply, but you’d never be able to take either a private individual or the Crown to court over a violation of the rights you supposedly still have, because the courts would look at this clause you signed and say, “you promised not to do that”.
You see, your rights aren’t gone, they are just unexercisable. Not really an important on-the-ground difference, but much nicer sounding.
It is very important to the Federal government that land owners feel confident that they do actually own the land they are occupying, and that the Crown doesn’t end up in court as a third party if a First Nation sues a private individual for squatting. That is the ultimate goal in these negotiations and is not something Canada is willing to give up. So you may be trying to get compensation for various breaches, but as you negotiate for this compensation, you will face the effective extinguishment of your rights over the lands in question.
This is about relationships, not release forms.
The wording has changed, sure. It’s confusing as hell and not immediately clear to anyone who reads it. Wrapped up in legal jargon and huge run-on sentences that put you to sleep, it can be difficult to notice that you are effectively giving up rights in order to finally settle a grievance you’ve been pursuing for a hundred years, after being in Specific Claims for the last 20 of those hundred years.
I can understand why it can seem worth it. If you can settle for a few million dollars, that means immediate cash injected into your community and there isn’t a single native community in this country that doesn’t need it. You can finally say to your people…we have settled this long-standing problem. It is over. Considering the incredible time and energy and emotional investment that go into these claims, getting closure is not something anyone can take lightly. The option out there of course is to not sign…and eventually limitation periods may run out and you lose your non-title related rights because you didn’t take it to court on time, or Canada just holds out forever and you get not dollar one for the damage that has been done. Those are real possibilities.
What bothers me about this is not that First Nations are signing these agreements. Not really. That used to bother me, but I have talked to enough people on the ground to realise that we aren’t folding here. Sometimes you go to court, sometimes you negotiate, sometimes you block roads…but you never ever truly accept that you are signing away your rights. We have to do this on paper sometimes because that is what is required…but in our hearts we know damn well that this is not going to stop us in the future from exercising those rights.
No, what bothers me is this. A treaty is an ongoing relationship. That’s how it is in every other situation that does not involve Aboriginal peoples. Treaties are nation-to-nation agreements that mediate relationships, and they can and should be revisited as the relationship progresses. We know this. This is how we approach Treaties and agreements with Canada. However Canada does not seem to understand this. They want to settle everything and never look back. Patch up the holes in their supposed Crown title and put the whole thing to bed.
Well it isn’t that easy, folks. Canada needs to stop trying to make us go away…stop ‘recognising’ our rights with one side of the mouth and restricting or extinguishing them out the other side.
That is not going to happen within the practice of Aboriginal law, however. Nope. Since Delgamuukw and Marshall, Aboriginal law has been all about ‘reasonable justifications for infringement’ of our rights instead of building a real relationship with us. Canada cannot seem to kick its own bad habits.
I think they’re going to need our help.
I’m a non-indigenous law grad who might have joined the wrong team, except that I had indigenous classmates who explained reality to me. I’ve blogged this entry at seatoskyreport.wordpress.com, and you’re going in my feed. I don’t have many readers myself, but they deserve to see these arguments fleshed out the way you’ve done here..
tawâw! I’m not sure that it’s totally clear where and who the ‘wrong team’ is. To quote GI Joe”…knowing is half the battle!” I’m not entirely certain I am going to stay in Aboriginal law, but we do need people here that aren’t just content to work within the current legal restrictions imposed by statute and case-law. You look at the situation thirty years ago, and you quickly realise that although things aren’t perfect now, there has been progression and it did not happen because people were fine pushing their clients through the status quo. It’s taken direct action as well as audacity in the courts. I’d like to see more Indigenous legal scholars examining and exploring their own legal traditions outside of the Canadian legal context, as well as seeing some pressure put to bear within the system by Aboriginal law practitioners. I don’t think an either or approach is conducive to change…we need to hit it on every front we can find. I do fear that if people lose too much hope in the system and ‘opt out’ completely, that we’ll end up with the worst kind of Indian-hating, status-quo upholding folks claiming legal legitimacy and influencing policy. Then again, it’s a soul-wrenching exercise to try to not lose your principles or your sanity and continue to practice Aboriginal law, so…*shrugs*