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Pax Atlantica

NATO’s long-lasting relevance

A Larger Role for Unions

Organized labour may be shrinking but the rhetoric is still upbeat

This United League

Will not die, will not perish

The Calamity of Caledonia

What B.C. can teach Ontario about land claims

Christopher Moore

Can Ontario take the confrontation at Douglas Creek Estates seriously?

No one, I think, denies the seriousness of the armed confrontation outside Caledonia in the Grand River valley of southern Ontario. For four years armed gunmen known as the Mohawk Warriors have occupied a ten-house real estate development on the edge of the reserve of the Six Nations of the Grand River, southwest of Hamilton. In April 2006, Ontario Provincial Police sent to carry out a court order for the Warriors’ expulsion were driven back, with the gunmen supported by an estimated 1,000 demonstrators from the reserve. The armed standoff has continued ever since, with the constant threat that either miscalculation or provocation will lead to an explosion of gunfire and death. Throughout these years, the confrontation has been destroying homes, ruining businesses, and generally blighting lives and prospects on both sides of the barricades.

The costs are serious too. The government of Ontario alone has spent about $65 million, mostly for policing—without, many residents would say, providing any real security. The federal government paid the developers of Douglas Creek Estates some $12 million for the land in question, without affecting the confrontation at all.

But this is a land claim—or what we call a purported or alleged land claim, as if “claim” were not tenuous enough. Those sorts of things are not supposed to happen in southern Ontario. Aboriginal land claims may happen in the Arctic or northern British Columbia, but this is southern Ontario, a place of suburban sprawl, intensive agriculture and industrial zones. Wasn’t that land title stuff put behind us, like, 200 years ago or something? Ontario is not likely to take seriously a gunfight over land claims if it cannot contemplate the idea of aboriginal rights in the heartland of the country.

Journalist Christie Blatchford has been trying to take seriously at least the gunfight part of the confrontation. In a long series of articles in The Globe and Mail that ran to some 20,000 words in late 2009 and early 2010, she applied her trademark empathy to the loss and pain experienced by one family trapped by the confrontation. Their sufferings are real and moving: physical danger, loss of home, loss of work, crippling stress, substance abuse, family breakdown and, along with all those, a furious rage, shared and powerfully expressed by Blatchford in every article, at the way the government of Ontario has actually impeded the family’s efforts at redress against the occupation, whether from the police or through the courts. Blatchford calls their story a “horror show that was visited upon an ordinary Canadian couple with the blessing of the state.”

Horror story is an apt summary of Blatchford’s account. No Six Nations Reserve residents, indeed no aboriginal people at all, appear anywhere in her thousands of words except looming over a gunsight. Blatchford has picked up unerringly on the mood of Ontario. She finds it so difficult to conceive that the Six Nations might have a grievance that they simply do not exist in her narrative. This is a horror story of a kind familiar in pop culture. At Caledonia, Blatchford finds herself writing about the innocent people of a small town menaced by foes who are implacable but impersonal, who do not live by the same rules as normal, living society. Given the sheer unreality of aboriginal land claims to Ontarians, Blatchford writes the Caledonia standoff as a zombie movie. The Six Nations get to be the undead.

Is there another way to conceive this? We may not like it in Ontario, but there is a history here, and it is not surprising that we flinch from it. It is not a happy story.

The Six Nations settled the Grand River valley in 1784. It is frequently said King George III bestowed the lands on them as a reward for their loyalty in the American Revolutionary War, but the Six Nations were always independent allies, not subjects. As a tough-minded soldier of the king said about that time, “one who would call the Six Nations our subjects needs a good army at his back.” At the end of the war, the British government acknowledged Six Nations’ title to the lands, ten kilometres deep on either side, along the full length of southern Ontario’s Grand River “which them and their posterity are to enjoy forever.” The government of Upper Canada confirmed the agreement in 1793, guaranteeing the Six Nations “the full and entire possession, use, benefit and advantage of the said district or territory, to be held and enjoyed by them in the most free and ample manner.”

This was no postage-stamp reserve. From the resort shores of Lake Erie, past Wayne Gretzky’s childhood home in Brantford and the home of the BlackBerry in Kitchener-Waterloo’s technology triangle, through the scenic Elora Gorge, and across rich agricultural lands almost as far as Georgian Bay, the lands that the Six Nations were to enjoy forever constitute a substantial chunk of the very best land in southern Ontario. It is crossed by freeways, railroads and power corridors and is home to hundreds of thousands of non-Native Canadian citizens as well as the largest single aboriginal community in Canada.

In 1784 the Six Nations territory on the Grand amounted to almost 400,000 hectares. Today the Six Nations hold less than 20,000 hectares of their original territory, and it takes a strong stomach to contemplate what happened to the other 380,000. The Six Nations never built a wall around their territory, and from the start their leaders contemplated non-Native settlement and shared development on their land. Instead, they faced tidal waves of squatters pouring in, and Crown officers who used the squatters to “prove” that the only solution was for the Six Nations to abandon most of their territory. An endless sequence of Crown officials redefined into meaninglessness the commitments of 1784 and 1793, and Crown courts repeatedly sustained them. Development projects that enticed yet more squatters destroyed aboriginal fisheries and farmlands, but were paid for with “Indian monies” that never seemed to be returned to its supposed beneficiaries. Revenues the Crown raised from “Indian lands” that had been appropriated for non-Native use vanished into the public treasury. Even on the lands remaining to them, the Six Nations were unable to maintain their rights. Provincial fish and game laws overrode the treaties, and entitlements guaranteed by treaty and deed were dismissed. “Indians are subjects in the same way as others. There are no troublesome subtleties in Canadian law,” declared an Ontario judge dismissing Six Nations’ rights in 1921.

This history is well documented. Look dispassionately at the history of the Six Nations lands, and what leaps into question is not the ten-house development project at Douglas Creek Estates that forms about one ten-thousandth of the original Six Nations territory. What really demands scrutiny is the legitimacy of Crown title to that huge chunk of southern Ontario, the Six Nations’ lost 380,000 hectares.

But even as I write these paragraphs, I can sense irritation and dismissal rising in Ontario readers. How can this story from centuries ago have any power in today’s Ontario? Is every non-Native person and enterprise in the whole Grand River valley somehow going to be uprooted and removed? What happened there a very long time ago may not have been nice, but it happened. It is done. Surely it is impossible and self-defeating to revisit these ancient obligations and ancient repudiations of them.

They used to say that in British Columbia, too.

Let Right Be Done is a recent collection of scholarly legal studies edited by Hamar Foster, Heather Raven and Jeremy Webber and inspired by the 30th anniversary of a 1973 Supreme Court of Canada decision known as the Calder case. Unusually for a scholarly volume, Let Right Be Done includes a long conversation recorded in 2003 with the case’s namesake, Frank Calder, politician, hereditary Nisga’a chief and lead plaintiff in Calder et al. v. Attorney General of British Columbia.

Frank Calder, whose gift for narrative comes through even in this transcript of an impromptu conversation, genially recounts the many decades during which the Nisga’a of the Nass River valley in British Columbia asserted their title to their ancestral lands. The Nisga’a problem was not with a broken treaty, but with the absence of a treaty. Since the 1880s, British Columbia had been asserting authority over the Nass Valley and Nisga’a leaders had been denying their right to do so. If there had been no treaty and no land surrender, the Nisga’a asserted, how could they not control their own land? In the 1920s, with the Nisga’a case about to reach the courts, Canada enacted legislation to forestall the litigation of any aboriginal land claims. It was not until the 1960s, after the law’s repeal, that the grandchildren of the original leaders were able to challenge British Columbia’s claim to the Nisga’a traditional territory in the Calder case.

In the interview, Frank Calder describes how fellow aboriginal leaders urged the Nisga’a not to take their case to Canada’s courts, fearing that if they lost, Native people all over Canada would be worse off than before. It is worth recalling how unlikely a successful legal assertion of aboriginal title must have seemed. In 1969 Pierre Trudeau’s government issued a White Paper that dismissed the whole idea of treaty obligations and aboriginal rights and began laying the groundwork for their wholesale extinguishment. Quebec was about to begin developing its James Bay hydro resources without any significant attention to the rights or interests of the aboriginal nations in the lands to be developed. There had not been a new land treaty in Canada since the early years of the 20th century, and most of the existing ones were observed just about as much as Canadian governments and Indian agents cared to observe them.

In its 1973 Calder decision, however, the Supreme Court of Canada saw logic in the Nisga’a position. It acknowledged the common law precedents and British imperial policies (often breached, but still…) that affirmed that aboriginal land could only pass to settlers through a treaty between the Crown and the aboriginal owners. There were no treaties in most of British Columbia. Then British Columbia’s claims—to the Nisga’a lands, but logically to most of the rest of British Columbia as well—lacked legal foundation.

Calder had a profound impact. The ideas of the 1969 White Paper were themselves extinguished, and almost immediately the federal government announced it would fulfill treaties where they existed and negotiate new ones where they did not. Comprehensive treaties and self-government agreements began to be reached across the North; one might say Nunavut is one of the fruits of Calder. The Calder decision along with other cases from the North and Quebec led to Quebec’s (and Canada’s) James Bay Agreement, negotiated between 1973 and 1975, which now underpins both the vast hydroelectric development of that region and the self-government of the Cree-Naskapi.

Calder’s impact was at first not very visible in British Columbia. British Columbia was then in a situation similar to Ontario today. It was hardly possible to take seriously the idea that land might actually belong to aboriginal people long marginalized on what small reserves the governments had deigned to provide them. For years, British Columbia essentially ignored Calder, and indeed it is unlikely any British Columbia government could have made a wide-ranging acknowledgement of aboriginal title and survived in office. As late as 1997, when another land claims decision, Delgamuukw, affirmed the impossibility of extinguishing aboriginal title without a clear record of doing so, politician and commentator Gordon Gibson called the Supreme Court decision “invented law.” The popular Vancouver Sun columnist Trevor Lautens suggested the province should end this distraction simply by legislating aboriginal title out of existence. ((Gordon Gibson Jr (1997), “The Land-Claims Ruling Is a Breathtaking Mistake,” Globe and Mail, December 16, A21; Trevor Lautens (1998), “How to Make Indian Land Claims Go Away,” Vancouver Sun, February 28, A23.))

But the court decisions continued to arrive, binding the province ever more tightly and gradually acclimatizing both the government and the citizenry to the idea that aboriginal title could not be avoided. In 1984, a B.C. judicial decision affirmed that where treaties existed, they had to be considered “in the sense in which they would naturally be understood by Indians,” not simply for the convenience of government departments. In 1986, 13 years after Calder, the highest court in British Columbia had to explain to the provincial government that Calder really was the law and it was “a fallacy” for the province to believe it could go on ignoring it. In that same year came a further wake-up call: another British Columbia judgement found that in the absence of treaties, the province could not assume it was free to authorize mining, logging and other economic activities.

Gradually, all the decisions since Calder began to be reflected in land and treaty policy in British Columbia. As recently as 2002, the province held a referendum designed to ensure that only token acknowledgements of aboriginal title would ever be made. But British Columbians were ceasing to treat aboriginal title with the disbelieving dismissal that still typifies the general Ontario response to the purported “claims” of the Six Nations and other Ontario First Nations. After holding out for 17 years, British Columbia in 1990 had joined the treaty discussions that Canada and the Nisga’a Nation had begun after Calder, and the province was a signatory to the Nisga’a Final Agreement in May 2000.

Some of the consequences of changing realities in British Columbia can be seen in All That We Say Is Ours: Guujaaw and the Reawakening of the Haida Nation by West Coast journalist Ian Gill. Gill’s book explores the recent achievements of one British Columbia First Nation through the lifework of Guujaaw, a Haida who first presented himself in public in the 1970s as a hunter-gatherer, a drummer, a carver, a keeper of traditional lore. Today, in his mid 50s, Guujaaw is president of the Haida Nation and a figure to reckon with in British Columbia politics. During Guujaaw’s time in public life, the revival of Haida culture and political organization have been reinforced by the Haida Nation’s vigorous assertion of aboriginal title and refusal to negotiate its extinguishment. All That We Say Is Ours is a story of what has become slowly possible for British Columbia First Nations in the post-Calder environment. Today young Haida have options other than becoming sullen tenants on their own islands.

Gill describes how Guujaaw and a non-Native ally, late one night at a kitchen table, pretty much invented the world-famous South Moresby wilderness preserve, now Gwaii Haanas National Park. But equally to the point is Gill’s account of how the bureaucrats of Parks Canada came to grasp that co-management with the Haida Nation was more likely to produce a national park than attempts to sideline aboriginal participation. He takes note how, as British Columbia lost its illusion of unfettered authority to greenlight resource developments without regard to aboriginal title, businesses began to turn—however reluctantly—to the partner that could actually make developments possible. Gill even suggests that the non-Native logging population of the islands, once strong supporters of the multinational logging companies whose clear-cut timber leases the Haida fought to abolish, now calculate they might be better off working in a sustainable industry with Haida forestry projects than trusting to cut-and-run multinationals. The Nisga’a agreed to cede much of their traditional territory to British Columbia; the Haida have not yielded one hectare. But in both cases, non-Native businesses and non-Native citizens continue to live and thrive where they were before aboriginal title was affirmed.

Let’s not be too optimistic about the revolution in aboriginal land law in British Columbia. There have been many confrontations and there are doubtless more to come. Much distrust endures, much remains unsettled, and many aboriginal people in British Columbia remain poor, undereducated, misgoverned and often embittered. The cost to British Columbia of accepting aboriginal title is also real. Aboriginal people are going to be the landlords and proprietors of a good deal of British Columbia, and they are certain to collect a rent or royalty on the province’s future prosperity.

But the next generation of British Columbians may find a better solution and a more manageable cost than the vain hope that police or military force will sustain a denial of aboriginal title that the courts of Canada have long since found to be without legal or ethical foundation.

At least since Calder, every Canadian judicial decision in aboriginal law has declared that these questions ought to be resolved by negotiation, not litigation. Aboriginal rights are political questions, and the courts will always be blunt instruments with which to try to formulate policy. Yet without the prodding of the courts, it would surely have been impossible for any government to move toward fair treatment of aboriginal title and aboriginal rights in British Columbia. Only the steady accretion of judicial decisions on aboriginal rights has gradually educated governments and the business community, and the public too. Court decisions gradually taught that land claims left unsettled will prevent economic development, undermine everyone’s land titles and subject the Crown either to endless litigation or to violent confrontations. As that lesson slowly took hold, sober self-interest began to whisper that a deal was both smart and feasible. Less than a decade after the provincial government of Gordon Campbell came to power very hostile to aboriginal rights, it hosted the 2010 Vancouver-Whistler Olympic Winter Games in partnership with four First Nations whose title to the territories where the games were taking place could not be gainsaid.

Are there lessons for Ontario in the West Coast experience? In Ontario, 19th- and early 20th-­century judicial decisions on aboriginal rights mostly show settler governments and settler courts working hand in hand to reason away any obligation that might have impeded the appropriation of aboriginal land and rights. Lower courts in Ontario still seem to be guided by those ancient precedents. In March 2008 an Ontario judge jailed most of the elected councillors of the KI First Nation of the James Bay lowlands when they insisted their treaty rights should not simply be overruled by the Ontario Mining Act. In 2006, when the Ontario government sought a negotiated settlement to forestall further violence at Douglas Creek Estates, an Ontario judge decreed negotiations must cease. He wanted his injunction enforced, at the point of a bayonet if necessary. He called that the rule of law.

Indeed, much of the bitter criticism of Ontario’s attempts to negotiate out of the Douglas Creek Estates impasse has invoked “the rule of law” with apparently serene confidence that in Ontario the law will never include aboriginal rights. In her articles, Christie Blatchford’s strongest attacks were on the Ontario government for tolerating “two-tier justice” that indulged “natives who … played the victim.” It is probably still politically impossible today for any Ontario government to treat aboriginal rights with the kind of respect they have begun to receive in British Columbia. Ontario courts have not spent 40 years educating governments and citizens what the rule of law actually requires on aboriginal title and treaty obligations. The Nass Valley and Haida Gwaii seem very far away.

If Ontario had a case like Calder affecting the status of the Grand River valley, what might the law actually say? Now that it is settled law that Canada must accept treaty obligations to First Nations, can the cynical manoeuvrings and tortured reasoning by which Ontario justified its 19th-century appropriations of Six Nations’ land survive judicial scrutiny? Now that legal interpretations of treaty clauses must consider how aboriginal parties actually understood them, the courts may eventually take a fresh look at how Ontario redefined those guarantees of land “to be enjoyed forever” and “in the most free and ample manner.” It might not be a bad bet to wager that one day a court is going to rule that the Crown in Ontario lacks valid title not just to the postage stamp that is Douglas Creek Estates but to the full 400,000 hectares of the original Six Nations territory, and that the Crown is indeed compelled to consult in the use and development of those lands and their resources.

Would Kitchener and Waterloo have to move away and Highway 401 cease to run? Hardly. The Six Nations have shown themselves willing since 1784 to share the development of their territory. Already, experience in the rest of Canada suggests that confirmation of aboriginal title is less of an obstacle to progress or economic development than endless conflict over it. The Nisga’a and the Haida have repeatedly declared that aboriginal title leads to partnership with non-Native society, and in northern Quebec the James Bay Agreement has fostered economic development instead of forestalling it.

There would surely be a cost to Ontario in paying a royalty to the landlords of the Grand River valley, perhaps even one larger than the cost of maintaining an endless armed force at Caledonia. But the British Columbia experience suggests that ­prospects for economic development—to say nothing of cooperation, justice and cultural enrichment—are enhanced, not harmed, by a generous acknowledgment of aboriginal rights and titles.

Let the courts speak clearly enough, and governments and even journalists in Ontario would eventually grasp the lesson. Kids in Ontario First Nations might even aspire to be Guujaaws and Frank Calders instead of being driven to become masked armed warriors on their own territories. That would not be a horror story.

Christopher Moore is a historian in Toronto.

Related Letters and Responses

Trevor Lautens West Vancouver, British Columbia

Alvin A. Lee Dundas, Ontario

Connie Kidd Hamilton, Ontario

Christopher Moore