First Nations crisis is about land and the recognition of continued traditional use and jurisdiction


Hayden King (Ryerson University)


Hayden King: First Nations crisis is about land. We need a new settlement

HAYDEN KING - Special to The Globe and Mail - Published Tuesday, Feb. 10 2015

Hayden King is Anishinaabe from Beausoleil First Nation on Gchi'mnissing in Huronia, Ont. He is the director of the Centre of Indigenous Governance at Ryerson University in Toronto.

The Anishinaabeg and Haudenosaunee haven't always been the best of friends. Still, in hundreds of years of conflict, peace and diplomacy, we figured out how to live and work together on the land. One of the most potent symbols of that relationship is the agreement known as the Dish with One Spoon. This pragmatic arrangement recognized that even as distinct nations, we can share the same territory. But we need to acknowledge our mutual obligations to ensure the dish is always full, "as long as the world stands," as my relative Misko Ki (Red Earth) once said. Importantly, there are no forks or knives at the table with which we can stab each other, just a spoon that we share.

As settlers began to proliferate in what would become the Great Lakes area, they too were invited to eat from the dish. But over time their collective appetite eroded the principles of mutual autonomy, humility and sustainability. The features of that original relationship were replaced with notions of "surrender" and "extinguishment" - sharp objects that cleaved indigenous peoples away from their territories. Today, these newer concepts are still fundamental components of the treaty architecture in Canada. If there is "one issue" running through this "Rich Country, Poor Nations" series that requires resolution, it is the ongoing alienation of indigenous peoples from the land.

At the heart of this story is a continuing clash of perspectives. When the formal confederation-era treaties were created, indigenous nations understood the agreements as providing settlers with some land for farming, grass for animals to graze, timber to build homes, and peace and friendship. Those Dakota and Saulteaux people, among others, would continue on as they had with some help in times of need. But for Canadians these treaties were transactional and extremely profitable: a few dollars per year, some tools, and setting aside tiny plots of reserve land secured the surrender of a country. The enforcement of this latter interpretation has meant widespread impoverishment, breakdown of authentic gender roles, and general social suffering for indigenous peoples.

Despite one hundred and fifty years of protest, this interpretation stubbornly remains the dominant treaty paradigm. While it is often assumed that the courts treat indigenous claimants generously via legal principals such as the duty to consult, that initial presumption of surrender has never been questioned and provincial and federal governments continue to assume exclusive jurisdiction. The recent modern land claim agreements are celebrated for offering restitution yet insist on the extinguishment of title to nine out of ten rivers and forests. More often than not, these new treaties - negotiated by indigenous peoples because there are few other options - end up back in court because of a lack of implementation or the familiar misinterpretation.

There are alternatives. We can imagine an escape from the current treaty approach with a renewed embrace of indigenous political economies. What would the Dish with One Spoon look like today?

Regarding the case of the confederation-era treaties, reserve borders could be blended with provincial or federal Crown lands. In these enlarged areas of indigenous jurisdiction the appropriate Blackfoot, Mushkego (or whichever) nations would "manage" these lands. Where there is overlap in traditional territories, principles of indigenous diplomacy would be invoked to share responsibility. Provincial, territorial and federal authority would not disappear; these governments would contribute to management plans and administration. Though mining, forestry and hunting might take place, land use generally would conform to principles that respect indigenous community desires and the rights of the land, as was originally intended.

In areas where there are no treaties, Haisla or Dene title to land would be recognized outright and jurisdiction honoured. All provincial and territorial plans on lands where title exists would seek approval and be harmonized with pre-established indigenous land and resource priorities. And on all lands already illegally settled - where Canadians live and work today - significant tax revenue would be directed to the appropriate indigenous nation. This proposal would also have implications for provincial and territorial authority generally. In these zones of shared sovereignty all law and policy would require collaboration and hopefully consensus.

There will be resistance to these suggestions. After all, this is a fundamental challenge to accepted notions of the Crown, as well as a provocation to the constitutional division of powers. Industry will abhor the perceived uncertainty and governments would be loath to forfeit any power and revenue. But in this supposed era of reconciliation, surely Canadians can make the necessary institutional and legal changes to accommodate multiple sovereignties, diverse legal orders, and long-delayed justice on the land. The struggles that indigenous peoples face in nearly all areas of life today are rooted in this "legal" theft. Canadians should be critically reflecting how they came to eat from the dish in the first place, and perhaps considering a diet.