JOHNSON – The challenge with native land claims, UNDRIP and conservatism

LET’S TAKE A PEEK at the unresolved matter of the parts of Canada that have never been ceded by treaties or modern land agreements. Note in the map above that shows all historical and modern treaties … note the yellow parts, which have never been rectified by treaty, and how B.C. lags behind almost in its whole.

By the way, the following does not opine on the existence of children’s graves near residential schools, or the appropriateness of historic or modern treaty situations in B.C. or across the country or lack thereof, or the propriety of any claims by any subset of Canadian culture; indigenous, immigrant or immigrant descendance, regarding land use or ownership.

This is a discussion piece, intended to elucidate nuanced thought.  That is all.

Last year a B.C. judge ruled that the Cowichan Nation should be granted full ownership of a chunk of Richmond, based on their argument that they never fully surrendered it to anyone.

That ruling has caused considerable freakout because of the obvious question regarding what it now means for a First Nation to own land in an absolute sense, as opposed to co-managing it in some way, which is how indigenous sovereignty has traditionally played out.

This is a fair reaction, the type that can happen when the stoic tunnel-visioned rules of constitutional federal parliamentary democracy rooted in the Westminster tradition … i.e. … Canadian law, bumps hard into indigenous traditional legal orders which on their own are complex, diverse, and deeply rooted systems of social ordinance, governance, and conflict resolution, which predate European colonization by a very, very long time.

We should not be surprised that the collision did not go well.

The very concept of absolute ownership of the sort established by this decision, is definitely something that’s been sought by many native rights activists lately. Some activists even argue that some existing treaties should be repealed altogether, because they were signed under duress or not properly understood by the native leaders who signed them.

And to be clear, we know that there were times where colonial negotiators took heavy advantage of past native leaders’ ignorance of Westminster style law creation, and rammed agreements through that would never pass legal or ethical muster today.

This is a legacy that conservatives and all Canadians need to not ignore.

There is now a reaction to this controversy where a lot of people find all of this stuff just woke and annoying. This is something you read endlessly about in the conservative press in Canada, in which all of this focus on the plight of the Turtle Island native is basically a way of denigrating this country and its colonially preferred history.

You know, the twisting of history that makes Canada seem like this fundamentally wicked, racist, imperialist, genocidal place that’s never done anything right. A reaction to this comes forth when situations like pipeline blockades or residential school histories come to light.

It feels like a lot of conservatives are starting to get pretty hardhearted about this subject in particular, and reactions from them happen as a result of constantly being told their ancestors did wrong, when today all they do is raise families, go to work, pay taxes and try to do right by the society of which they are a part.  They didn’t personally decide to separate family structures, didn’t scoop kids and didn’t even vote for those who did.

But at the same time, they can’t disagree that we are all perpetuating the legacy … that word again … by following the system created by these colonial actions, especially land absorption.

In the early 2020s, there were a lot of stories about mass graves at residential schools.

And when it later came out that some of the reporting on this had been sensationalized and misleading (which, face it … that’s what the media does), you started to see a lot of right-wing backlashes to the idea that these schools were even bad at all.

The left and First Nations kneejerk to this led to calls that denying the history of the residential schools should be criminalized, as the Germans do with Holocaust denial.

And then you add on to that the fact that the modern indigenous rights movement in Canada tends to be bound up with a lot of other progressive causes like environmentalism and anti-racism and LGBT rights and even anti-capitalism.

Intertwined with any activism regarding pipelines, northern oil sea routes, land rights, two spirit identification or any other calls for advocacy, is the boomerang consideration of it being just another part of the inherent racism against First Nations.

From that perspective, the whole issue of native rights starts to become just one more polarizing issue in the right versus left culture war.

When you ask conservatives what they would like to see the government do differently, It feels like you don’t tend to get a lot of clear answers. It seems like a lot of people on the right in Canada may be pretty intimidated by the degree in which so much of the status quo is entrenched by the Constitution or court rulings.

It’s become one of these things where a lot of people don’t like the way things are going, but also don’t know enough about the issue to offer clear counter arguments.

So, what you get can easily be interpreted as hate … and let’s be clear; there is an amount of that on the right … but some is just reactions from a place of ignorance as the depth of the issues really are that entwined and complex.  When it’s this intricate and convoluted, sometimes all we can do is to debate it from our general ideological perspective and sidestep the labyrinthine quagmire that is land claims law.

Repealing UNDRIP, however, is certainly one tangible goal that seems to be gaining a lot of steam. Even our local MLA, Mr. Milobar, hass climbed on this rhetoric channel as a talking point towards his Conservative leadership bid.  Conservatives like to grab onto palpable weights like this and attach themselves to purveyors of their ideology … it earns votes to say this, whether there is any logic to it or not.

In reality, UNDRIP as a fact does not need to be repealed, its interpretation in its connection to B.C. and, potentially, Canadian law, needs to be amended, possibly legislatively … drawing clear lines regarding existing land ownership, especially in urban regions.  Blatant calls to repeal it in B.C., is only for political attention and votes, not a function that solves anything.

More universally, it seems that indigenous rights will probably prove to be one of these issues where we see a bit of a pendulum swing in the coming years.

It feels like it’s the native NIMBY angle more than anything else that is really starting to exasperate a fairly broad cross-section of politicians and business leaders in Canada these days, emboldening conservatives and frightening the general left into confusion; wanting to support, but need to honestly ask; ‘who owns my house’?

Indigenous leaders for their part will often be quick to say that they are not opposed in theory to being partners of projects. They just want proper protocols to be followed before they award what the bureaucrats now often refer to as FPIC or Free, Prior and Informed Consent, as provided by UNDRIP. That’s not unreasonable, if they stopped there.

The question is whether the pursuit of FPIC is a process that actually aspires to arrive at a clear yes or no, or is just something that exists to generate more timewasting court cases to clarify increasingly fine grain legal questions at the expense not just of Canada’s economic growth but the lives of the indigenous peoples themselves, who despite it all still remain some of the poorest and least healthy people in this country.

A contradiction that everyone should protest on both sides of the argument.

The unknown, as of yet, is if the FPIC complies with the Constitution at all, which is above our pay grade today, but we can still consider whether we see it as a tool for meaningful partnership or a mechanism for stalling development.

Today … it feels like its just justification for unending court cases, being used by anti colonial activists to scrape as much legal precedent as possible before we even figure out how to use these tools and agreements properly. Cowichan shows that this is the reality.

Mark Carney’s recent legislation; The Build Canada Act, sets aside previous Canadian laws on the books to allow a long list of major infrastructure work.  These are clearly projects that First Nations litigants will likely use in the courts to stop unauthorized use of their lands.

So, this subject and future economic fortunes for Canada are tied up in this.

So, take this conversation to your peers and watch where they are at. Do they default to expected right/left polarized ideologies and wrap Indigenous issues within that framework, or is there a more introspective understanding of the complexities, which indicates as tactile exacerbation … i.e. they don’t get it, and don’t know what to do?

Probably a place many of us find ourselves in.

David Johnson is a Kamloops resident, community volunteer and self described maven of all things Canadian.