SUFFER THE LITTLE CHILDREN Genocide, Indigenous Nations and the Canadian State

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New book batters Canadian denial, launches in Vancouver this week

Suffer the Little Children – Genocide, Indigenous Nations and the Canadian State
By Tamara Starblanket

Clarity Press, 2018
Foreword by Ward Churchill
Afterword by Sharon H. Venne

Official launch Thursday, June 7, 6pm at the Vancouver Native Education Center.

This much-anticipated book places Canada’s Indian Residential School programme among the world’s leading crimes against humanity: genocide. From the Introduction: This book is meant to serve as a battering ram to hammer through the wall of denial. 

         Advance remarks on this book by Noam Chomsky, Steven Newcomb and Irene Watson indicate its importance to leading thinkers today. The Foreword by Ward Churchill and Afterword by Sharon Venne, an international legal expert on the rights of Indigenous Peoples, lend even more credibility to the work. It’s a subject of pivotal importance in Canada, and yet few have had the fortitude to approach it. Far fewer have had the endurance to complete such a painful analysis.

One of the most important things about this book is its refusal to allow Canada to be considered a “post-colonial” state. The evidence against Canada’s genocidal “forcible removal of children” during the Indian Residential School era is connected to the present-day foster care system, which targets young Aboriginal families in particular: still forcibly removing children from the genocidally-targeted group and placing them with members of another group. With the colonizing group: be they white, yellow, beige, or brown families. And still removing those Indigenous children with the same genocidal objective of “bringing about the destruction of the group, in whole or in part,” in order to continue colonizing and absorbing the yet-unceded Indigenous homelands.

Starblanket’s thesis, on which the book is based, was argued successfully for a Master of Laws degree from the University of Saskatchewan.

​         Another of the book’s most important accomplishments is Starblanket’s assessment of Canada’s official federal treatment of the Indian Residential School fallout as having only to do with individuals. Individual survivors were compensated under the 2006 Indian Residential Schools Survivors’ Settlement Agreement. In fact, the intended and effective result of the “schools” was a series of national crises among the Indigenous Nations whose lands Canada tries to claim. With their children gone, and their languages and systems of culture and governance uncertain, the crime was against nations – not individuals. Starblanket breaks down the very different legal implications.

​         The crime of removing the children was against nations and peoples with the right to self-determination, land, language, history and future: individuals do not have such rights.

​         But it is Canada’s special reservation to deny the nationhood and national characters of some fifty nations. This is in keeping with Canada’s posture that the state has the ability to absorb various Indigenous “minorities” within its stolen borders, and award them various “Aboriginal rights” in place of their internationally-recognized rights as nations and peoples.

Canada’s assault on these nations is justiciable – for all the reasons Starblanket puts forward – under the Vienna Convention on the Law of Treaties, 1969; under the Geneva Convention for the Prevention and Punishment of the Crime of Genocide, 1948; and, in some ways, under more recent international norms, such as the International Convention on Economic, Social and Cultural Rights, and the International Convention on Civil and Political Rights. These latter two are equipped by the United Nations with Treaty Bodies – with Committees which have repeatedly reviewed and severely criticized Canada for its denial of the self-determination of Indigenous Peoples. Starblanket concludes that self-determination is the answer. Not “reconciliation,” which she debunks as a public relations scam.

​         Information does not make change, however. There is no Committee to receive reports on, or review violations of the Geneva or the Vienna Conventions. Only states can take other states to the International Court of Justice for that. And, so far, no other state has been willing to intervene in what is known as the “domestic judicial complicity in genocide,” such as it is within Canada. This book may help with that.

If there must be a shortcoming in Suffer the Little Children, it is the absence of international legal prescriptions for justice. Genocide is not a crime which a state can be allowed to rule on domestically when its own government is one of the parties to the crime. There is an important precedent. In 2007, Menchu v. Montt was heard by the Constitutional Court of Spain. That case concerned Guatemala’s genocide against the Mayan people, and it found General Rios Montt guilty of genocide. Unfortunately, the presiding Spanish judge, Justice Garçon, died suddenly and unexpectedly shortly thereafter. And the ruling was reversed.

​         The importance of this book is that it makes available, to the people of Canada and to the people of the world, the trial of Canada – if not the actual court room. These things take time, and this book keeps the clock ticking.

​         If the empires and invading nations cannot be relied on to deliver justice, even when their Constitutional Courts decide a fairly obvious matter, perhaps the people of the world can do better. If not the colonizing people of Canada, who have a vested interest in the displacement, denial and dispossession of the original nations; then perhaps the people of the world – as the overthrow of apartheid in South Africa was achieved, in part, by outside groups.

​         And if the example of Menchu v. Montt could be brought to bear in the case of Canada, might we get the next chapter of this story? Something like Starblanket v. The Director of Child and Family Services? The case has certainly been laid out: the Ministry has been advised, time and again, over decades, of the effects its actions are having – and it keeps doing them.

The book will be officially launched this Thursday, June 7, at the Vancouver Native Education Center. Event starts at 6pm.

Follow this link to the book : Suffer the Little Children

 

Quotes from the book:

“While other aspects of Canada’s “Indian policies” can be seen to fit the definition of genocide, specifically at issue in this book is its century-long program of forcibly removing indigenous children from their families, communities, societies—in sum, from their Nations—and placing them for sustained periods in “residential schools” where the stated goal was to strip them of their cultural identities and “remake” them into “end products” deemed useful to Canada’s colonizing and ever-growing settler population.”

“I am the sole member of my birth family still alive. My grandparents, maternal and paternal, as well as my late mother and her siblings, were all forced to spend their formative years in the schools, an experience from which none of them would ever recover.”

About TamaraStarblanket:

Tamara Starblanket is Spider Woman, a Nehiyaw iskwew (Cree Woman) from Ahtahkakoop First Nation in Treaty Six Territory.  Tamara holds an LLM (Master of Laws) from the University of Saskatchewan, and an LLB from the University of British Columbia. She is the Co-Chair of the North American Indigenous Peoples’ Caucus (NAIPC) at the UN Permanent Forum on Indigenous Issues. She presently coordinates and teaches in the criminology program at Native Education College in Vancouver, BC.

Early Reviews:

“Settler-colonialism reveals the brutal face of imperialism in
some of its most vicious forms.  This carefully researched and
penetrating study focuses on one of its ugliest manifestations,
the forcible transferring of indigenous children, and makes a
strong case for Canadian complicity in a form of ‘cultural
genocide’ – with implications that reach to the Anglosphere
generally, and to some of the worst crimes of the ‘civilized
world’ in the modern era.”
Noam Chomsky

“Tamara Starblanket’s work is confident, clear and succinct;
her work is ground-breaking and provides us with new ways of
looking at how the states treatment of First Nations Peoples
has gone unrecognised for its genocidal affect. This work
provides an excellent critique on the exclusion of cultural
genocide from how genocide is defined in international law.”
Professor Irene Watson,
Research Professor of Law, University of South Australia

“Tamara Starblanket’s book provides a much needed
examination and critique of the ‘residential school’ system that
forcibly transferred Indigenous children from their families,
communities, and nations into institutions run by the colonizer
state—in this case, Canada. Despite the fact that the United
Nations 1948 Convention on Genocide explicitly includes
‘forcibly transferring children of the group to another group’ in
its definition of ‘genocide,’ there are those who deny that the
colonial ‘civilizing’ project amounted to genocide. Starblanket
demonstrates that the residential schools in fact aimed at
destroying the most intimate level of Indigenous life—the child-
parent relation—employing brutal beatings, solitary
confinement and other horrible punishments, often resulting in
children’s deaths. The goal of the schools was to prevent
Indigenous societies from perpetuating themselves. Though
officially repudiated, the residential schools produced a
continuing social and institutional legacy. Starblanket’s work
brings this history and its legacy effects to our awareness and
shows that ‘the road home’ requires an emphasis on
Indigenous self-determination.”
Peter d’Errico,
Professor of Law, University of Massachusetts

“Tamara Starblanket has skillfully taken on one of the most
difficult and contentious issues, genocide. With intellectual
courage and determination, she has approached the issue
from the perspective of a Cree woman, scholar, and attorney
who has first-hand knowledge of the deadly and destructive
intergenerational impacts of Canada’s domination and
dehumanization of Original Nations and Peoples.”
Steven T. Newcomb (Shawnee, Lenape),
author, Pagans in the Promised Land Decoding the
Christian Doctrine of Discovery

“This is heavy stuff, about which much more should be said,
and Starblanket is unsparing in saying it…I am proud to call
her sister, and to thank her.”
from the Preface by Ward Churchill,
author, A Little Matter of Genocide

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Delgamuukw v. The Queen

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20 years later, Gisdayway family produces searing report on a legacy of dispossession and division following the court ruling that Gitksan and Wetsuwet’en title survives.

On December 11, 1997, the Supreme Court of Canada ruled that British Columbia has not extinguished Gitksan and Wetsuwet’en title and rights. The watershed case collected essential elements of previously recognized Aboriginal rights and articulated a clear sum of those parts: Aboriginal title and rights have not been extinguished by the province; Aboriginal title is a real, economic interest in the land; and Aboriginal title affords the owner the right to use the land and choose what it can be used for.

After December 12, 1997, thousands of column inches rolled off the presses of BC’s daily newspapers in protest. Everyone who made a living in BC was making it off the back of resources extracted from non-treaty, unceded and unsurrendered Indian land, and they were not about to let a legal ruling interrupt that. Farmers, loggers, exporters, truckers and all the businessmen in between drew up their position much in the same way US President Andrew Jackson did, when Justice Marshall said the Cherokee owned their homelands: The judge has made his ruling, now let’s see him come and enforce it!

Well, it wasn’t enforced any more effectively than in Georgia, where Jackson marched the Cherokee away along the Trail of Tears.

Twenty years of unabated logging and mining and development later, the ruling has informed a handful of cases that advanced the legal character of Aboriginal rights – at least, Canada’s definition of those rights. But what has changed on the ground? What is the real legacy of Delgamuukw, when eighty cents on the BC dollar comes directly from extractive industries, and the Indigenous are as poor as ever?

Chief Na’Moks, a Chief of the Tsayu (Beaver Clan) of the Wet’suwet’en, commented on the anniversary of Delgamuukw Day:

When the SCC overturned BC’s Court Decision, we were elated, but that was short lived as the decision has been continually ignored. We hoped that BC and Canada would uphold the Ruling, but they, and industry, chose to “Bury their Heads in the Sand” and pretend it did not apply to them. Continual approvals of Proposed Projects have proven this to be a fact.

According to Ron George, Wet’suwet’en of the Gisdayway lineage, destitute are the grandchildren of those Chiefs who sacrificed a decade of their own lives to protect their lands and bah’lahts – hereditary governance system – in the Canadian courts. That, and the fact that even the Supreme Court of Canada is no match for the governments’ insistence that Indigenous peoples will be ruled according to the state’s convenience, is the subject of his academic report: YOU’VE GOT TO PADDLE YOUR OWN CANOE.

At the time of the trial in BC Supreme Court, 1987 to 1990, George was president of the United Native Nations, based in Vancouver. Urban Gitksan and Wetsuwet’en raised funds to support the cause, and UNN offices housed UBC law students supporting their legal teams when the trial was moved to Vancouver. George, along with most of his family, did not have Indian Status. Gisdayway, the leader of their house, refused to leave home on his ancestral lands and move to the Indian Reserve. So fervent was his refusal that the early-20th-century Indian Agent concerned simply, unilaterally, enfranchised Gisdayway – Thomas George, and his wife Tsaybaysa – Mary George. His home was registered as a pre-emption. Enfranchisement was a Canadian torture device designed to further the destruction of Aboriginal nations, creating “Non-Status Indians” who could not live on Indian Reserves nor participate in any of their business, nor exercise Aboriginal rights.

They still can’t, in spite of the fact that the Supreme Court of Canada ordered a new trial into the Gitksan and Wet’suwet’en complaint to better articulate:

that the common law should develop to recognize aboriginal rights (and title, when necessary) as they were recognized by either de facto practice or by the aboriginal system of governance.

Delgamuukw v. British Columbia, 1997 SCC, at 159

The new trial was never held. A combination of factors must have interfered: the financial cost – the three year trial, then the longest in Canadian history, came in at $23million; the cost in lives – a number of Chiefs and Elders died during the trial of stress-induced strokes and heart attacks, one of the laments in PADDLE YOUR OWN CANOE; and that the people believed their vindication at court would be enough to force the province to deal fairly.

The Delgamuukw case can certainly be understood as the highest colonial court’s check on a province that never bothered to make treaties with Indigenous Nations, but the machinations of colonialism in British Columbia are so grizzly. As McEachern J. explained the colonizer’s view at the time, in his 1991 ruling on the trial in BC Supreme Court: no Aboriginal title or right could survive the presence of British subjects and the operation of their laws in this place.

 

The trial and the 1991 BC Supreme Court ruling

On March 8, 1991, the BC Supreme Court ruled against 71 Houses of the distinct Gitksan and Wet’suwet’en nations, in their attempt to prove sovereignty and jurisdiction in their homelands. The ruling was a devastating event. “It was the one day in my life that I was going to quit the practice of law. I just felt I had misled 69 Chiefs and hundreds of people to believe there was some kind of justice in this country,” Peter Grant, one of the plaintiffs’ lawyers, later said of the ruling.

71 Chiefs had stood together to launch the case against The Queen and see it through the courts over a seven year period. They decided the first Chief named, so the case would carry his name, would be Delgamuukw. His position at home was that of the Chief who brings all the other Chiefs together after a day of discussion and debate.

The first words spoken in the trial were this:

“My name is Gisdayway and I am a Wet’suwet’en Chief and a plaintiff in this case. My house owns territory. Each Wet’suwet’en Chief’s house owns several territories. Together we own and govern Wet’suwet’en territory.”

Chief Delgamuukw, Gitksan, spoke next:

“For us the ownership of territories is a marriage of Chief and land. Each Chief has an ancestor who encountered and acknowledged the life of the land. From such encounters come power. The land, the plants, the animals and the people all have spirit and they all must be shown respect; that is the basis of our law.”

The case was launched in 1984, amid blockades against logging and a Gitksan blockade of the CN Rail line, which eventually had forty trains backed up on either side and strangled off the northern BC port. Direct action was a second-last ditch attempt to stop the clearcutting that was bankrupting the land-based peoples, as no legal avenue was open and the governments were not negotiating circumstances around the total devastation of the peoples’ natural wealth.

A documentary film from the time, “Blockade,” by Nettie Wild, captured the moment when RCMP are denied entrance to the Gitwangak Indian Reserve and directed to proceed along their “so-called right of way” – the train tracks. There on the rails the police read out an injunction for the train blockaders’ removal and Art Loring, Eagle Clan of Gitksan, standing in the middle of the track, replied:

Pointing to a very old totem nearby: I’d like to draw your attention to that pole there. Those poles tell us we’re right. We own this land; not the court, not the province, not the federal government. That’s why we do this, because we have a right to. And your courts come in and take us away because you think you have a right. We don’t agree. We’ve lived here far longer than you guys have.

My name is ten thousand years old. My wife’s name is twelve thousand years old.

The last ditch was to sue The Queen for recognition of their sovereignty and jurisdiction. Between 1987 and 1991, the trial encompassed 374 days of argument and evidence: 318 days of testimony. There were 61 witnesses; 53 territorial affidavits; 23,000 pages of transcript evidence at trial. The Elders brought forth their way of life and presented it, through translators, to the court. Gwis Gyen (Stanley Williams), for example, said this:

All the Gitksan people use a common law. This is like an ancient tree that has grown the roots right deep into the ground. This is the way our law is. It’s sunk. This big tree’s roots are sunk deep into the ground, and that’s how our law is.

The results of the litigation were immediate, terrifying and violent. Logging in the territory accelerated. Native school children in Hazelton and Moricetown were beaten and dumped in ditches, informed by their white attackers that “this is for the land claims!”  And 400 pages of written reasons, reminiscent of 19th century colonial logic, were afforded by the presiding judge, Alan McEachern.

Chief Justice McEachern, as he was then, was not circumspect about his contempt for the plaintiffs. He failed to see how the presented histories, maps, villages, house posts, clan system or hereditary titles, demonstrated any sort of ownership or identifiable governance. The province of BC argued,

“Clan membership is even less helpful as a way of identifying the membership of the society of Gitksan. A Clan is not a corporate body. Clan membership is a way of lining people up at Feasts, of determining who is host and who is guest, and it is a way of organizing a rule of incest.”

McEachern dismissed the Elders’ oral histories. In his reasons for dismissing the plaintiffs, he described them as “vagrants” whose lives were “nasty, brutish and short.” Peter Grant put it this way:

It was an opportunity lost. The man who heard the case as the judge did not have the capability of understanding or hearing what was being said to him.

 

“Treaty process” follows denial of rights

A few months later the report of the BC Claims Task Force was released, and, without a hint of irony, the BC Treaty Commission was in business a year later – with the express purpose of negotiating the extinguishment of Aboriginal rights. A paradox to be sure, since the province’s Supreme Court had just decided there was nothing to negotiate.

This move repeated the governments’ response to the Calder decision of the Supreme Court of Canada in 1973. There, three judges reasoned that the Nisga’a title to Nisga’a lands had never been extinguished. Although the case was dismissed as inconclusive – three other judges disagreed and the seventh refused to rule – it was the first time Aboriginal title had won any judicial support at all. Calder was immediately followed by the introduction of the Comprehensive Claims Policy: a mechanism by which Aboriginal rights, including land rights, would be negotiated away before they were acknowledged as such. The Nisga’a engaged in that mechanism, along with four other “test cases” from across Canada.

It was during this time, at least by 1997, that the Supreme Court of Canada decided Aboriginal title was a form of Aboriginal right. This, they said, protected Aboriginal title under the Constitution of 1982, Section 35, where, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” Judicial definition of these rights has progressed along a marked departure from the Indigenous position that Aboriginal rights flow from Aboriginal title, or, what Indigenous peoples meant when they said “Aboriginal title” does not seem to be the same thing that Canadian judges mean when they use the phrase. Indigenous peoples, for instance, don’t seem to agree that their title can be infringed as required by Canada.

The Supreme Court’s reasoning in demarcating a roadmap to Aboriginal title perpetuated fundamental colonial constructs that are anathema to reconciliation. The judges repeated the problematic notion that aboriginal rights are sui generis – a Canadian invention to mystify Indigenous property rights and attach an “inherent limit” on Aboriginal title. And the judges continued to rely on the idea that Great Britain gained sovereignty over the west in 1846 – as they pronounce to this day – simply because Britain had made treaty with every other European power that had previously expressed interest in the area.

In court, the Gitksan and Wet’suwet’en Chiefs categorically rejected the statement of British sovereignty over their lands. Unfortunately, they had given their question over to the jurisdiction of a BC court in the first place. That is the kind of conundrum Indigenous Peoples are in: if they go to a Canadian court for legal recourse against Canada, they will find a judge who is Canadian. It’s an obvious conflict of interest which has resulted in widespread Indigenous appeals to third parties out of the state, to the Inter-American Commission on Human Rights, and to United Nations treaty bodies and Special Rapporteurs.

 

DISC – then and now

In 1997, the Supreme Court of Canada overturned several of McEachern’s decisions and routed his reasons so that they could never be used again.

The next day, the front page of The Vancouver Sun newspaper featured a huge picture of Edward John, Chair of the First Nations Summit, stating his expectation that the ruling would revolutionize the state’s negotiating mandate within the BC treaty process. The ruling had said, after all:

Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures.  The protected uses must not be irreconcilable with the nature of the group’s attachment to that land.

Surely selling 98% of Aboriginal title land to the state, to be developed and parceled off as fee simple title, was a use “irreconcilable with the nature of the groups’ attachment to that land.” But that was about to become the blueprint for engagement under the BC Treaty Commission. The Nisga’a Final Agreement, negotiated under the Comprehensive Claims formula of 1974, was ratified in 1998 and came into law in the year 2000.

Against the First Nations Summit’s suspended disbelief, a group of Indigenous leaders formed to propose a bridge between the Gitksan/Wet’suwet’en ruling and Aboriginal rights on the ground: the Delgamuukw Implementation Steering Committee. “DISC” attempted to gain traction with the Assembly of First Nations and the federal government, to hammer out practical ways and means for Aboriginal peoples to benefit from the ruling. But the initiative was supplanted by an exploratory committee that eventually resulted in the First Nations Governance Institute.

The 1997 decision did not change the federal government’s 1974 policies concerning negotiated extinguishment, which is now referred to as “modified rights” and includes a First Nation’s indemnification of the state for “all past harms,” in the BC treaty process. Robert Nault, as Minister of Indian Affairs in 1999, stated that Canada wouldn’t do anything to alter its “flagship process,” the “made in BC” answer to treaty settlement (and renegotiation) across Canada. Ten years later, Minister of Indian Affairs Chuck Strahl stated that the BC Treaty Commission was not a rights-based approach. In 2009, three years of work by a Chiefs Task Force working with government negotiators at a Common Table reached a final impasse in attempts to bring treaty negotiating mandates up to a minimum that could be seen as equivalent to Aboriginal rights already won in Canadian courts.

Last month, the federal government announced a new sort of DISC: the Department of Indigenous Services, Canada. The Department of Indian Affairs (also known as INAC, AANDC, etc.) has been cleaved in two under the leadership of Trudeau 2, separating land claims from the administration of Aboriginal-specific (ie, underfunded) works and programs like health, education and welfare. The new DISC refers to the latter, while the iconic Canadian “Indian land question” will be split off into version 3.0 of the Comprehensive Claims Policy / BC Treaty process / post-Tsilhqot’in decision… which apparently does not have a name yet, according to government press releases, but will be managed by a new Ministry under Carolyn Bennett: Crown-Indigenous Relations and Northern Affairs.

 

Cases building on Delgamuukw

In Haida, 2004, the Supreme Court ruled that government agents had a duty to consult and accommodate Aboriginal peoples whenever they contemplated action, such as resource licensing, which might impact Aboriginal title – proven in court or not. The ruling relied on the definition of Aboriginal title defined in Delgamuukw.

The legal brain trust of the colonial state has diverted whatever relief that 2004 SCC ruling might have offered into dissipating channels of “consultation” and “accommodation,” through such mechanisms as Forest and Range Agreements and other revenue sharing agreements. Thus, Aboriginal peoples attempting to benefit from that legal decision have the option of signing off that their economic interests have been accommodated – to mobilize Forest Resource Management Plans, sometimes as yet unwritten – for a paltry per-capita sum. Instead of spending a decade in court, or watching business go on as usual. It’s a provincial scheme sculpted around the lowest common denominator that meets the government obligation to be seen to accommodate economic interests in Aboriginal title.

In 2007, the William case at the BC Supreme Court resulted in a preliminary ruling for a Declaration of Aboriginal title in Tsilhqot’in territory. Seven years later, that case resulted in the first ever declaration of Aboriginal title in Canada, at the Supreme Court of Canada. The case followed the method of proving Aboriginal title which was defined by the Delgamuukw case.

Jack Woodward has been legal counsel for the Tsilhqot’in since the 1980s. He commented on today’s anniversary and what might happen next:

The next step is obvious to me, but perhaps that is because I am a lawyer who thinks constantly about the remedies that are available within the legal system.  With Delgamuukw and Tsilhqot’in, and many other decisions, the courts have opened their doors to Aboriginal people to use the powerful tools found in Section 35 of the Constitution – Aboriginal title, Aboriginal rights and treaty rights.  These are some of the most powerful tools known to our legal system.  They are there to be used.  I believe that the use of those tools is as full an answer as we can ever expect to the questions of decolonization.   In the 20 years following Delgamuukw, Aboriginal people have been very restrained about the use of the courts to seek the available remedies.

According to Ron George’s new report, the governments have found even better ways to get cooperation for resource extraction and development: funding elected Band Council Chiefs to attend the Hereditary Chief feasts – where national business is done; and even funding the purchase of traditional positions within the Feast Hall. The government’s licensing bureau ensures that no Hereditary Chief or his family can avail themselves of their own natural wealth on the land base, by recognizing only the authority of offices which conform with Indian Act / Band Council modes of operation. This action is, in itself, the most fundamental exercise of bad faith on the part of Canadian governments – although the examples are many and chilling – in the legacy of Delgamuukw.

Those three syllables will resonate in the annals of Canadian history forever:                dell-gah-MOOQU. And what will this name call to mind? That Al McEachern got paid. That Indigenous Peoples will never stop fighting for their right to exist as a people, even when the colonizer’s government ignores its Supreme Court. That Canadian indifference to law is a matter of global significance.

In, YOU’VE GOT TO PADDLE YOUR OWN CANOE, Ron George notes the following legacy:

Although some people call the Indian Act an artificial barrier, Atna feels that barrier is very real and is manifested by these attitudes toward us when we ask questions they are unable to, or choose not to, answer. “At one traditional meeting, a chief told one of our family, ‘Well, you should be so fortunate that we allowed you back on reserve’. That was in a Wet’suwet’en traditional meeting. …the whole purpose of the court case was to address that and try to move it away…get away from that. We hang onto it. [our people] hang onto it because it’s a power base…and there’s authority that goes with it.” (Atna / Brian George)

The process may be working for other people, but that’s for them to say. … Lands and resources are being negotiated away, access to our traditional territories are diminishing through resource development, rights are taken away that are entrenched in the constitution and that are recognized in Delgamuukw-Gisdayway 1997. The rightful hereditary people who have rights and title to the land are not being consulted. Consulting with the wrong people is a fast track strategy to resource development, and a resource grab for the ‘sell-outs.’ We need to survive in the new economy and are by no means looking to stop progress, but it’s got to be done in a respectful manner so our kids and grandkids…..We have to survive. We survived thousands of years. We’re going to continue to survive. Well, we have to have a say in it. (Greg George)

What is the legacy of Delgamuukw v. The Queen? Earlier this year, a bronze statue of the late BC Chief Justice Allan McEachern, who died in 2008, was installed in the Great Hall of the Law Courts in downtown Vancouver. And suicide among the youth of Indigenous Nations occupied by Canada outstrips the national average by eight times.

 

References:

You’ve Got to Paddle Your Own Canoe: The effects of federal legislation on participation in, and exercising of, traditional governance while living off-reserve, by Tsaskiy (Ron George), Department of Educational Psychology and Leadership Studies, University of Victoria, December, 2017

Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

Colonialism on Trial: Indigenous land rights and the Gitksan and Wet’suwet’en sovereignty case, Don Monet and Skanu’u (Ardythe Wilson), New Society Publishers, 1992

North at Trent 2015 Lecture Series with Peter Grant, youtube, by TrentFostCtr, 2015

And special thanks to Chief Na’Moks, Wet’suwet’en, and Jack Woodward for fielding a few questions about the impacts of the case.

The Best Of All Titles – Gitwangat Chiefs, 1884

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We would liken this district to an animal, and our village, which is situated in it, to its heart. Lorne Creek, which is almost at one end of it, may be likened to one of the animal’s feet.

We feel that the whitemen, by occupying this creek, are, as it were, cutting off a foot. We know that an animal may live without one foot, or even without both feet; but we also know that every such loss renders him more helpless, and we have no wish to remain inactive until we are almost or quite helpless

We have carefully abstained from molesting the whiteman during the past summer. We felt that, though we were being wronged and robbed, as we had not given you the time nor opportunity to help us, it would not be right for us to take the matter into our own hands. Now we bring the matter before you, and respectfully call upon you to prevent the inroads of any whiteman upon the land within the fore-named district.

In making this claim, we would appeal to your sense of justice and right. We would remind you that it is the duty of the Government to uphold the just claims of all peaceable and law-abiding persons such as we have proved ourselves to be. We hold these lands by the best of all titles. We have received them as the gift of the Creator to our Grandmothers and Grandfathers, and we believe that we cannot be deprived of them by anything short of direct injustice.

In conclusion, we would ask you, would it be right for our Chiefs to give licenses to members of the tribe to go to the district of Victoria to measure out, occupy, and build upon lands in that district now held by whitemen as grazing or pasture land? Would the whitemen now in possession permit it, even if we told them that, as we were going to make a more profitable use of the land, they had no right to interfere? Would the Government permit it? Would they not at once interfere and drive us out? If it would not be right for us so to act, how can it be right for the whiteman to act so to us?

—Gitwangak Chiefs, 1884

As copied from the book, Colonialism on Trial: Indigenous land rights and the Gitksan and Wet’suwet’en sovereignty case, New Society Publishers, 1992

Image: Delgamuukw as he was in 1987, Albert Tait

Indigenous reports force feds ahead of UN review

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75% of reports to Committee on racial discrimination sent by Indigenous organizations.

Last week, Canada switched arrogance and condescension for gestures of off-kilter desperation at the Assembly of First Nations’ general assembly. That is probably because on August 14 and 15, Canada will be under the microscope at UN headquarters in Geneva. Fifteen Indigenous Peoples’ organizations have already submitted extensive reports for the Session, detailing Canada’s “seek and destroy” approach to their internationally recognized human rights.

It is a typical Canadian tactic to invent meaningless distractions right before a review by a UN treaty body: their delegates to the Session can then reply to the Committee’s independent experts by talking about “initiatives” or “joint meetings” which do not substantially exist, instead of answering directly.

This time Canada sent four federal ministers to the AFN’s annual assembly, July 25-27, where they implied that Ottawa is going to rescind the Indian Act. Bennett (Minister of Indigenous Affairs), Wilson-Raybould (Minister of Justice), McKenna (Environment) and Goodale (Public Safety), all made vague references to bright promises yet to come.

The only concrete message from Ottawa to the AFN Chiefs – only half of whom showed up at the all-expense-paid meeting in Regina – was that it will no longer claw back unused capital funds to First Nation communities after twelve months of dispersal.

This miserable material figure can and should be unsuccessfully compared to the immaterial, yet golden, future intimated by Bennett’s and Wilson-Raybould’s reported remarks.  “How will your nation and Indigenous government be organized? What is your territory?” Their remarks, on the other hand, will certainly be judged against the picture of Indigenous life under Canada which has been detailed in reports to the UN CERD.

“ Skeena watershed and coastal Indigenous communities depend on the salmon for food, their economies and cultures. This (LNG, Prince Rupert) project is a prime example of what’s wrong with Canada’s approach to engaging Indigenous communities in large-scale industrial developments: It continuously fails to honour the legal obligations to Indigenous Peoples in protecting their traditional resources; The Canadian government generally consults with Band Councils, which were created under the colonial Indian Act, and often fails to consult hereditary leadership or respect traditional governance systems; …”

. Skeena Indigenous Groups’ Submission to UN CERD. July 6, 2017

It is interesting to note that only weeks after this report to the CERD was posted for the Session, Petronas announced its withdrawal from this proposed project, “Pacific NorthWest LNG.”

The UN Committee for the Elimination of Racial Discrimination has dealt Canada sharp rebukes over the last two decades: stop extinguishing Indigenous Peoples’ titles; stop ignoring murderers who target Indigenous women; stop trying to destroy the Lubicon Cree to get oil access.

The UN treaty bodies have an internationally recognized judicial power to issue recommendations to member states in keeping with upholding international human rights conventions. Each committee periodically receives reports from the state under review, and also from non-governmental organizations, civil society, academia, and now from Indigenous Peoples’ organizations.

It is typically the reports from Indigenous Peoples and NGOs which have, in the past, resulted in strong recommendations from UN Committees to Canada. Many of those have produced changes in the government’s behaviour, although such changes have been isolated and usually only in direct connection to the issues reported. In British Columbia this includes instances of forgiveness of government treaty negotiation loans to small Bands; dissolution of treaty societies formed to negotiate in the BC treaty process – against community members’ protests; and possibly the current standstill in BC Treaty Commission business altogether.

Extinguishment “negotiations” are an ongoing problem that is at the center of the CERD’s focus on Canada:

“There are no viable options other than legal court action to counter the BCTC “treaty” process about these overlaps into St’át’imc territory. As negotiations with the outside First Nations progress, the eventual outcome will be the extinguishment of significant portions of St’át’imc territory without the St’át’imc having been involved in any negotiations to this effect.”

. SHADOW REPORT BY THE INTERIOR ALLIANCE: CANADA’S ONGOING                               COLONIZATION OF INDIGENOUS PEOPLES.   UN CERD COMMITTEE JULY 2017

In contradiction to the Interior Alliance’s extensive documentation of the extinguishment effect of Canadian “negotiations,” however, Minister Wilson-Raybould remarked to the press on her government’s plans: “They are explicit in rejecting certain long-standing federal positions—such as the focus on extinguishment, surrender or denial of rights.” Incidentally, that’s what Canada told the CERD in 2007.

 

Extinguishment, surrender and denial are precisely what Canada offers Indigenous Peoples. There is a veritable firestorm of examples of this, enveloping Indigenous Peoples. It is highly suspect that a Canadian Minister climbs a prominent national stage and says “we’re just about to change,” (again) only days before Canada has to answer a lot of very pointed questions in front of the world.

Consistent Canadian practices are to assimilate and co-opt economic development, to municipalize isolated communities under provincial legislation, to criminalize traditional economies, to rigidly maintain dependency by an overbearing and constantly metamorphosing bureaucracy which can never be finally functional. There is the “First Nations Land Codes” – where a community votes to recognize Canadian supremacy in its traditional territories, just for the privilege to enjoy managerial duties on-reserve. There are the “Strategic Land Use Planning Agreements” – where communities have shared maps of their territories showing cultural values and inadvertently given tacit approval to development in huge “low cultural value” lands. In the national Inquiry into Missing and Murdered Indigenous Women, crucial voices have undoubtedly been denied. Indigenous Peoples’ rights under Article 1 of the International Covenants on Civil and Political, and Social, Economic and Cultural Rights are completely denied. Canada specializes in the forcible removal of Indigenous children from their homes and communities, requiring parents and families to submit and surrender to provincial courts which have no jurisdiction whatsoever in the case of children and families who are not Canadian until they produce a referendum from their nation joining Canada.

Minister Wilson-Raybould, apparently speaking for those Indigenous individuals who have exercised their right to choose a nationality, appealed to the Chiefs to imagine their future as Canadians whose Indigenous rights are recognized and respected.

Ultimately, the Supreme Court of Canada expresses the state’s right to own Indigenous nations it has no treaties with. It is certainly a matter of interest in any investigation of racial discrimination. Apparently the key to Canada’s jurisdiction over nations with which it has no constructive agreements is owing to the fact that the British monarch, appointed by the Christian god, had sent a sailor with orders to discover and possess others’ lands in His name, and he was successful in this because the Christian god was superior, so the Supreme Court of Canada seems to say, to any of the existing nations’ gods. We know it is the presence of other Christian nations which is at issue in the matter of the Canadian court’s opinion on sovereign possession, because the issue was finally settled in 1846, according to Canadian judges, when the USA agreed in the Oregon Treaty to withdraw from pursuing any interests north of the 49th parallel. From that date, Great Britain and now Canada enjoys sovereign possession of all lands from the Pacific Ocean to the Atlantic Ocean above that parallel, except Alaska, as per SCC, because all other Christian nations had, by that time, also promised Great Britain they would pursue no interests there.

Unfortunately for that internationally repugnant display of Canadian faith, which is the state’s current legal precedent, it is not clear that any Indigenous Peoples have formally joined and adhered to Canada. Wilson-Raybould was referring to that popular understanding among the Chiefs. The CERD has been made aware of that understanding, and again in the reports for this Session:

“In particular, we bring to the Committee’s attention the state’s use of its own  imposed Indian Band administration, under the Indian Act, on the state-defined Indian Reserve, to manufacture the appearance of Líl’wat consent to Canada’s disposal of the remainder of Líl’wat customary titles to lands and wealth outside the Reserve.

“Líl’watmc ask that the Committee question Canada about the origins of any rights of jurisdiction it may have in relation to Líl’wat which could justify Canadian licensing and development without the consent and against the Interests of the Líl’watmc under the Convention, and resulting in the continuing displacement and dispossession of Líl’wat.”

Líl’wat report to UNCERD, July 2017, with the International Human Rights                                         Association of American Minorities

The picture developed by fifteen Indigenous Peoples’ organizations shows Canada’s unabated attempts to assimilate Indigenous Peoples – their worldview, identity, economies, individuals, children, histories, and especially their lands and natural wealth – into Canada. Unilateral, non-consensual assimilation is categorically prohibited as a matter of human rights norms, and yet that end of the spectrum of Canada’s colonization is not the worst.

“If Ontario and Canada insist on excluding us from meaningful consultations on the Agreement in Principle, then we insist that Canada and Ontario exclude the areas where our First Nations’ asserted Aboriginal title and rights overlap with the “Algonquins of Ontario” claims, or at least suspend negotiations over  such areas, until such time as we have engaged in meaningful consultations and reached an acceptable accommodation.

“Despite our objections in March 2016, the “Algonquins of Ontario”, Canada and Ontario have proceeded to hold a referendum vote on the AIP.”

ALGONQUIN NATION SECRETARIAT  TO THE UN CERD COMMITTEE                                                          July 2017

 

“How does one start to describe the horrific conduct of Canada in their relentless efforts to extinguish the rights of Indigenous peoples within their ancestral homelands?”

“While the Supreme Court of Canada has determined that the Canadian and provincial governments have a duty to consult, negotiate, and accommodate Indigenous rights, the governments use these consultation and negotiation processes to coerce, terrorize, terminate, extinguish, and discriminate against Indigenous peoples and our rights.”

Submission to the UNCERD 93rd Session, July 31-August 25, 2017.                                             On behalf of the Mothers and Grandmothers of the Maliseet Nation

 

“Asubpeeschoseewagong Netum Anishinabek, also known as Grassy Narrows First Nation, is located on the English-Wabigoon River system in North Western Ontario, and is infamous for mercury contamination from an upstream pulp and paper mill. … In 2016, a former mill worker came forward to confess the mill had illegally buried barrels of waste along the river, leading to the persisting contamination and inability of the river system to recover naturally.”

Chiefs of Ontario report to UNCERD, July 2017

 

“On November 29, 2016, the Canadian Federal Cabinet directed the National Energy Board to approve the Kinder Morgan Trans Mountain pipeline expansion. This pipeline poses an unacceptable risk to the health, safety and livelihoods of First Nations throughout British Columbia, and will contribute to the negative environmental and health impacts experienced by Indigenous Peoples downstream of the tar sands, and of all peoples throughout the world as a result of accelerating global climate change. The Tsleil-Waututh, Squamish, Musqueam, Coldwater, Upper Nicola, Stk’emlupsemc te Secwepemc, Aithchelitz, Shxwhay Village, Yakweakwioose, Kwawkwaw-apilt, Tzeachten, Skowkale, Soowalie, and Squiala peoples have commenced legal proceedings seeking to challenge the federal approval for the Trans Mountain project… It is well established that diluted bitumen contains toxic chemicals that are a threat to drinking water, health, and the well-being of salmon and other beings.”

Submission to the UNCERD 93rd Session, 2017.                                                                                 Union of British Columbia Indian Chiefs.

Minister Bennett, for the federal department of Indigenous and Northern Affairs, said to the AFN Chiefs last week: “We want to partner with you on building on the strengths and assets you have in your communities. You have the power to determine the future of your communities.”

The international community is quite aware that Canada still wishes to build on the strengths and benefits belonging to Indigenous communities, whether Canada co-opts the participation of those communities through “benefits sharing” or “land management” or other agreements achieved under duress. The international community is also aware that Indigenous Peoples have the power to determine the future of their communities, and that Minister Bennett and her government may well have nothing to do with that.

As the Union of BC Indian Chiefs’ report articulated, “We are presently witnessing a great divide between the words of the Canadian government and its actions on the ground. We would like to highlight the term “rights ritualism” for the consideration of the Committee in respect to Canada’s present actions: a way of embracing the language of human rights precisely to deflect real human rights scrutiny and to avoid accountability for human rights abuses. Countries are often willing to accept human rights treaty commitments to earn international approval, but they resist the changes that the treaty obligations require.”

 

Living Treaties, Lasting Agreements. 1985

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This book, produced by the federal government, is now very hard to find.

It was written after the 1982 Canadian Constitution Act had been formalized, but before the failure of the First Ministers Conferences to implement a meaningful “Section 35” – where Aboriginal and treaty rights are recognized and affirmed. This is possibly the single most candid publication the Canadian government has produced concerning Indigenous rights, and it admits a lot of Indigenous rights which have disappeared from the federal discourse since the failure of Canada to legislate implementation of Section 35.

Comprehensive Claims – policy & protest

STATEMENT OF THE NISHGA NATION OR TRIBE OF INDIANS. 1913

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From time immemorial the Nishga Nation or Tribe of Indians possessed, occupied and used the territory generally known as the Valley of the Naas River, the boundaries of which are well defined. The claims which we make in respect of this territory are clear and simple. We lay claim to the rights of men. We claim to be aboriginal inhabitants of this country and to have rights as such. We claim that our aboriginal rights have been guaranteed by Proclamation of King George Third and recognized by Acts of the Parliament of Great Britain. We claim that holding under the words of that Proclamation a tribal ownership of the territory, we should be dealt with in accordance with its provision, and that no part of our lands should be taken from us or in any way disposed of until the same has been purchased by the Crown. By reason of our aboriginal rights above stated, we claim tribal ownership of all fisheries and other natural resources pertaining to the territory above-mentioned.

For more than twenty-five years, being convinced that the recognition of our aboriginal rights would be of very great material advantage to us and would open the way for the intellectual, social and industrial advance of our people, we have, in common with other tribes of British Columbia, actively pressed our claims upon the Governments concerned. In recent years, being more than ever convinced of the advantages to be derived from such recognition and fearing that without such the advance of settlement would endanger our whole future, we have pressed these claims with greatly increased earnestness.

Some of the advantages to be derived from establishing our aboriginal rights are

  1. That it will place us in a position to reserve for own use and benefit such portions of our territory as are required for the future well-being of our people.
  2. That it will enable us to a much greater extent and in a free and independent manner to make use of the fisheries and other natural resources pertaining to our territory.
  3. That it will open the way for bringing to an end as rapidly as possible the system of Reserves and substituting a system of individual ownership.
  4. That it will open the way for putting an end to all uncertainty and unrest, bringing about a permanent and satisfactory settlement between the white people and ourselves, and thus removing the danger of serious trouble which now undoubtedly exists.
  5. That it will open the way for our taking our place as not only loyal British subjects but also Canadian citizens, as for many years we have desired to do.

In thus seeking to realize what is highest and best for our people, we have encountered a very serious difficulty in the attitude which has been assumed by the Government of British Columbia. That Government has neglected and refused to recognize our claims, and for many years has been selling over our heads large tracts of our lands. We claim that every such transaction entered into in respect of any part of these lands under the assumed authority of the Provincial Land Act has been entered into in violation of the Proclamation above mentioned. These transactions have been entered into notwithstanding our protests, oral and written, presented to the Government of British Columbia, surveyors employed by that Government and intending purchasers.

The request of the Indian Tribes of British Columbia made through their Provincial Organization, that the matter of Indian title be submitted to the Judicial Committee of His Majesty’s Privy Council, having been before the Imperial Government and the Canadian Government for three years, and grave constitutional difficulties arising from the refusal of British Columbia to consent to a reference, having been encountered in dealing with that request, we resolved independently and directly to place a petition before His Majesty’s Privy Council. In following that course we desire to act to the fullest possible extent in harmony both with other tribes of British Columbia and with the Government of Canada.

We are informed that Mr. J. A. J. McKenna sent out by the Government of Canada has made a report in which he does not mention the claims which the Indians of the Province have been making for so many years, and assigns as the cause of all the trouble, the reversionary claim of the Province. Whatever other things Mr. McKenna found out during his stay, we are sure that he did not find out our mind or the real cause of the trouble. We are also informed of the agreement relating only to the so-called reserves which was entered into by Mr. McKenna and Premier McBride. We are glad from its provisions to know that the Province has expressed willingness to abandon to a large extent the reversionary claim which has been made. We cannot, however, regard that agreement as forming a possible basis for settling the land question. We cannot concede that the two Governments have power by the agreement in question or any other agreement to dispose of the so-called Reserves or any other lands of British Columbia, until the territory of each nation or tribe has been purchased by the Crown as required by the Proclamation of King George Third.

We are also informed that in the course of recent negotiations, the Government of British Columbia has contended that under the terms of Union the Dominion of Canada is responsible for making treaties with the Indian Tribes in settlement of their claims. This attempt to shift responsibility to Canada and by doing so render it more difficult for us to establish our rights, seems to us utterly unfair and unjustifiable. We cannot prevent the Province from persisting in this attempt, but we can and do respectfully declare that we intend to persist in making our claim against the Province of British Columbia for the following among other reasons:

  1. We are advised that at the time of Confederation all lands embraced within our territory became the property of the province subject to any interest other than that of the province therein.
  2. We have for a long time known that in 1875 the Department of Justice of Canada reported that the Indian Tribes of British Columbia are entitled to an interest in the lands of the province.
  3. Notwithstanding the report then made and the position in accordance with that report consistently taken by every representative of Canada from the time of Lord Dufferin’s speeches until the spring of the present year, and in defiance of our frequent protests, the Province has sold a large proportion of the best lands of our territory and has by means of such wrongful sales received a large amount of money.
  4. While we claim the right to be compensated for those portions of our territory which we may agree to surrender, we claim as even more important the right to reserve other portions permanently for our own use and benefit, and beyond doubt the portions which we would desire so to reserve would include much of the land which has been sold by the Province.

We are not opposed to the coming of the white people into our territory provided this be carried out justly and in accordance with the British principles embodied in the Royal Proclamation. If, therefore, as we expect, the aboriginal rights which we claim should be established by the decision of His Majesty’s Privy Council, we would be prepared to take a moderate and reasonable position. In that event, while claiming the right to decide for ourselves the terms upon which we would deal with our territory, we would be willing that all matters outstanding between the Province and ourselves should be finally adjusted by some equitable method to be agreed upon which should include representation of the Indian Tribes upon any Commission which then might be appointed.

The above statement was unanimously adopted at a meeting of the Nishga Nation or Tribe of Indians held at Kincolith on the 22nd day of January, 1913, and it was resolved that a copy of same be placed in the hands of each of the following:—The Secretary of State for the Colonies, the Prime Minister of Canada, the Minister of Indian Affairs, the Minister of Justice, Mr. J. M. Clark, K.C., Counsel for the Indian Rights Association of British Columbia, and the Chair-man of the ” Friends of the Indians of British Columbia.”

  1. J. LINCOLN, Chairman of Meeting.

 

Living Treaties, Lasting Arrangements

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Report of the Task Force to Review Comprehensive Claims Policy, 1985

This report is a timepiece – exposing a brief window of candor on the part of Canada’s political engineers. It is an analysis of the federal approach to minimizing Indigenous scope for land title restitution – after the Supreme Court failed to unanimously agree that Aboriginal rights no longer existed, after Calder in 1973, Canada wrote its Comprehensive Claims Policy. The report includes corresponding insight and recommendation.

The report is attached here in 7 parts via the link above.

It came in the midst of the First Ministers’ conferences on implementation of constitutional Aboriginal rights, 1982-1987.  Written after the 1982 Constitution Act, grappling with Section 35 where “Aboriginal and treaty rights are hereby affirmed” and before that First Ministers Conference series imploded in 1987 (accomplishing nothing except a formal return to “talk and log” politics), this report is unique in its unequivocal, explicit recognition of extensive Indigenous rights and the corresponding Canadian obligations. The Task Force received submissions from 60 Indigenous nations and organizations during its work.

Note that this volume is now all but inaccessible. Also note this report’s extensive and useful bibliography.

Xwe-Nal-Mewx Declaration, 1988

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Also called, Coast Salish Declaration

Begins:

“We know the Creator put us here. We know our Creator gave us laws that govern all our relationships to live in harmony with nature and mankind; defined our rights and responsibilities.

“We have the right to govern ourselves and the right to self-determination. Our rights and responsibilities cannot be altered or taken away by any other nation.

“We have our spiritual beliefs, our languages, our culture, and a place on Mother Earth which provides us with all our needs.

“We have maintained our freedom since time immemorial. …We declare and affirm to the people that… the Xwe-Nal-Mewx have held and till hold title to all lands, waters and resources within our traditional territories. ….”

Full text: xwe-nal-mewx-declaration-coast-salish