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Thursday July 10, 2014

Maybe you’ve heard about the Supreme Court’s latest ruling about what it means, in Canadian law, to have lived on land since time immemorial.

The Tsilhqot’in decision shouldn’t be surprising, shocking, or radical – all of the things that we legal wonks are calling it. Quite simply, it upholds the right of a nation to control, use, live upon and benefit from any territory that it can prove as its own.

It means, essentially, that if your nation has had the ability or luck to protect, from the 18th century onwards, your homeland from being trodden on, ‘taken up’, or otherwise deprived by other peoples (such as a certain flag-planting gang from over the Atlantic), Canadian law might now actually dignify you with the recognition that, hey, maybe it is yours after all, and your nation should be first in line to sustain and safeguard the gifts of Creation that your territory provides.

For a country that for most of its history has been trying, by trick or treaty, to vanish the reality of self-determining First Nations, I guess that this is a pretty big deal.

But what, then, does this belated but landmark awakening mean to the Anishinabe, who would amply satisfy all of the tests used by the Supreme Court in recognizing Aboriginal title? Who would hold title, of course, except for those papers signed at meetings held in 1873, or 1905, or 1930, on the banks of those great rivers that the Clans knew then, and know now, as home.

Except for those treaties that, amidst much strange language and strained promises, harumphed that the “said Indians do hereby cede, release, surrender and yield up to the government of the Dominion of Canada, for His Majesty the King and His successors forever, all their rights titles and privileges whatsoever, to the lands…” Except, of course, for that.

We have been puzzling about the truth of these treaties ever since the headmen made their marks, ever since the white men told them that “for giving up their title to a large area of land of which they could make no use, they received benefits that served to balance anything that they were giving.”

In the search for clarity, common sense, and reconciliation that every decent leader should be making, an obvious starting point is acknowledging how much poppycock this process was.

Canada, at the time a much more racist, Empire-first society than it is now, wanted to deprive Indigenous nations of their very souls, their very selves. Canada knew that it could force the terms of these treaties, on the one hand pretending that payments of four or five dollars a year was fair exchange, on the other making sure that whatever lands they left reserved for the Anishinaabe had none of the natural wealth that the settlers wanted.

The treaties that blanket Anishinabe homelands could never be justified today. They are, quite simply, not just, and never really were. But, quite like the Indian Act itself, they cannot be simply undone, especially not with a government that prefers pipelines to traplines, control to conciliation. Exciting though it is, the Supreme Court’s ruling will have very different meanings depending on where in the country your homeland is.

The unavoidable reality is that while some First Nations can use the Tsilhqot’in decision to assert Aboriginal title over their lands, most others, including the Nishnawbe Aski Nations, will have a much harder time using it to create the breathing room they so desperately need to recover health, strength, and purpose on their lands.

One of the cringing ironies of this situation is that treaties were mostly not made in British Columbia (where the Tsilhqot’in decision comes from), not because of any noble restraint on Canada’s part, but because the federal and provincial governments, by the time they got around to settling the far west, figured they didn’t even need to make their hollow promises of blankets and trinkets. They figured that since these proud nations were decimated and dying, the slate would soon be cleansed for their version of civilization to completely take over. Those governments were wrong, of course, and B.C. will be forever changed because of it.

But I do not want to live in a country where the path ahead is so divided. I do not want historical accidents – and contemporary pigheadedness – to mean that while a Tsilhqot’in, or Gitxsan, or Haida child may learn to grow up with a strong and certain footing in the land and the wealth that it provides, an Anishinabe child may still be forced to know home as little more than a poor reserve surrounded, defined, and dictated by the Crown. This was surely not what the ancestors intended; and it is surely not what a truly fair and just country would be.

The courts, I fear, will not bridge this looming gap; it is time for our leaders, inspired by Tsilhqot’in, to re-imagine the treaties.

Have a question for our columnist related to law issues in northern Ontario? E-mail him at:

Simon Owen is a lawyer at Beamish and Associates in Sioux Lookout, and practices primarily in the areas of criminal defence law and community justice initiatives.

Simon holds law degrees from the University of Victoria and the University of British Columbia, where his thesis work focused on moral and cultural communication in sentencing.
These columns represent the personal views of the author alone, and not of any organization that he may be associated with.

Nothing in these columns should be taken as legal advice; please consult a properly instructed lawyer for any legal issues you may have.

Finally, the author is not Anishinabe, and this column is not intended to explain or interpret any Anishinabe words, concepts, or principles. The author humbly apologizes for any errors or misunderstandings that he may make when referring to Indigenous ideas.

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