BACKGROUNDER
What we mean when we say Indigenous land is 'unceded'
By Emma McIntosh | Analysis, Energy, Politics | January 24th 2020
Inside the Gidimt'en Checkpoint on Wet'suwet'en territory in December 2019. The camp was dismantled by Coastal GasLink contractors in early 2019, and then rebuilt and reoccupied. Photo by Michael Toledano
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You might be living on unceded land.

To be more precise: the Maritimes, nearly all of British Columbia and a large swath of eastern Ontario and Quebec, which includes Ottawa, sit on territories that were never signed away by the Indigenous people who inhabited them before Europeans settled in North America. In other words, this land was stolen. (It's worth noting that territories covered by treaties also weren't necessarily ceded ⁠— in many cases, the intent of the agreements was the sharing of territory, not the relinquishing of rights.)

What to do about it, however, is deeply complex ⁠— and legal questions about how to handle claims to unceded land have become a subject of public discussion as members of the Wet’suwet’en Nation in northern British Columbia have reoccupied their territory and attempted to block the Coastal GasLink pipeline. Similar cases over Indigenous land titles are moving through courts across Canada.

Canada’s Constitution is clear that Indigenous land rights exist, said Benjamin Ralston, a lecturer and researcher at the Indigenous Law Centre at the University of Saskatchewan. But in practice, fights over exactly what those rights are can take decades to resolve in court or in treaty negotiations, revealing “cognitive dissonance” in the system.

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“The real problem is, what do we do about it now, while these slow processes are proceeding?” he said.

In the case of the Wet’suwet’en and Coastal GasLink, at issue is a divide between the traditional Wet’suwet’en legal system, Canada’s legal system, those who have stood to protect the land in question and those who want to see the pipeline built.

Under Wet’suwet’en law, authority over the nation’s 22,000 square kilometres of unceded territory lies with hereditary chiefs from five clans, who oppose the pipeline. However, there are also five elected band councils created by Canada’s colonial Indian Act, and some of the councils have supported the project.

A 1997 Supreme Court of Canada decision affirmed that the provincial government can’t extinguish Wet’suwet’en rights to their land. However, the court also sent the case back from a second trial that hasn’t yet happened, leaving key questions unresolved.


Last year, the RCMP violently arrested Wet’suwet’en people and supporters in the disputed area, with the Guardian reporting late last year that police had been prepared to use lethal force. Earlier this month, the RCMP set up a checkpoint to control access to the area after a B.C Supreme Court judge extended an injunction to force out the Wet’suwet’en in the camps and allow construction on the pipeline to continue.

“We are not trespassing,” Ta'Kaiya Blaney, one of several Victoria, B.C., activists arrested and released after a protest supporting the Wet’suwet’en earlier this week, said in a video posted on Facebook.

Wet’suwet’en Nation territory in northern British Columbia is just one example of a dispute over unceded land.


“Coastal GasLink is trespassing, those cops are trespassing. They have no jurisdiction to violate Indigenous Peoples and Indigenous youth on stolen land.”
'Duty to consult' an imperfect solution

The Wet’suwet’en are far from the only ones asserting their title to their traditional lands.

In Nova Scotia, Mi’kmaq people have pushed for recognition of their unceded territory. In Ottawa, several Algonquin groups claim the land that Parliament Hill and the Supreme Court of Canada sit on. And in 2014, Tsilhqot'in Nation in B.C. became the first to prove title to their land in court.

In 2017, about 140 groups of Indigenous people who never signed treaties were negotiating with Canada’s federal government, the New York Times reported.

Several court cases have reaffirmed that the Canadian government has a duty to consult Indigenous people in cases that will impact their rights, which is meant to be an extra protection while land-title cases get resolved. But that protection is imperfect: duty to consult “is not necessarily going to give you the full benefit of stopping a project,” Ralston said.

In general, courts have also been reluctant to allow Indigenous land claims as a reason to block injunctions.

In a broader sense, however, there are international considerations as well. In November, B.C. passed a bill aligning its laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a landmark document that, among other things, protects Indigenous Peoples’ right to self-government and right to consent to resource-development projects on their territories.

B.C. is the first Canadian jurisdiction to implement UNDRIP ⁠— the document was passed by the UN General Assembly in 2007 over Canada’s objections, and the country has so far been reluctant to formally implement it. It's not clear how the document could play in future disputes.

In the case of Coastal GasLink, B.C.'s independent Human Rights Commission, Amnesty International and the UN Committee on Racial Discrimination have all criticized the provincial government, saying Coastal GasLink violates UNDRIP principles.

B.C. Premier John Horgan, meanwhile, has said the province’s law is not retroactive and Coastal GasLink will go ahead.

Editor's Note: This story was updated at 8:26 p.m. on Jan. 25, 2020 include additional information about treaties.

January 24th 2020



Emma McIntosh
Reporter @EmmaMci

Comments

Anthony Christie | 21 days ago


"...cases over Indigenous land titles are moving through courts..."
I've always wondered... by what right do setter (colonizer, conqueror...?) courts even claim jurisdiction? By what right are unceded territories even called "Canada"? Is there some internationally recognized legal principle here that I'm missing? Or does it all simply boil down, in the last analysis, to realpolitik?

Anthony Christie | 20 days ago


Anyone? Emma? Richard Wagner? Smolgelgem? Bueller? Spicoli? Anyone?

Jan Steinman | 19 days ago


"by what right do setter (colonizer, conqueror...?) courts even claim jurisdiction?"Good question. I don't have an answer.

Historically, a "conqueror" gets to do as they damn well please, so in some ways, appealing to the conqueror's court system that one is an un-conquered, sovereign nation, is self-defeating — it's an admission that one has been conquered.

But the reality is that might be as good as it gets.

Indigenous people could go to the UN to try to deal with their co-sovereign oppressors, but the UN has already said Canada is trespassing on Indigenous territory. The UN could use the Security Council to invoke sterner measures, including sending in peace-keepers, but the Security Council permanent members with veto power include many nations that also suppress Indigenous rights. Could you imagine the US or Russia sending in peace keepers to counter the RCMP, when they, themselves, violently quell Indigenous rights?

So I think the simple answer is also the most distasteful: there is no "right" for courts of conquerers to judge those conquered.

But we Canadians do have a strong sense of ethics… as long as it doesn't affect us individually! Canadian shame and guilt over residential schools, the "60s scoop," and many other clear violation of human rights are all that allow us to avoid such a situation occurring again.

Which is a good thing, in this case. It seems clear that the Coastal GasLink has about as much chance of being profitable as fracked oil has turned out to be — propped up by fleecing investors.

That leaves the matter of "in the public interest." It seems to me that our "leaders" have interpreted "public interest" much as a junkie regards opioids — they know it will kill us, but we just cannot stop. So we go on mainlining fossil fuel, knowing it will someday kill us.

Anthony Christie | 19 days ago


Thanks, Jan and Pam.

PAMELA FITZGERALD | 19 days ago


Generally the principle used by European countries to rationalize the theft of Aboriginal lands was called "Terra Nullius". In other words, if no one lived on the land, it was yours for the taking. Canadian courts have generally taken the position that Terra Nullius does not apply to land considered to be part of Canada since this land was rarely unoccupied.

Given that many Indigenous peoples were decimated by European diseases before even meeting settlers, I see it more of a question of might makes right. Indigenous Nations were not in a position to defend themselves and their lands if many or ever a majority of their people had been wiped out by disease.

Stephen Clarke | 6 days ago


https://en.wikipedia.org/wiki/Right_of_conquest

The "right of conquest" is the legal precedent, tho it's not stated as such it's the elephant in the room

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