Why yes, I do have 126 pages of articles and 155 pages of judgments to read by tomorrow...

[ciroccoj]

... does it show?

So I was thinking about Aboriginal rights & what's the purpose of learning about our wretched history with Aboriginals & where do we go from here etc etc. I started to answer a comment from snarkhunter and got all enthused - and then lj blew a big razzberry at me when I tried to post my reply as a comment.

I'm posting it here instead :)

***
Well, obviously I don't know the answer or I'd be a lot richer and more famous, but it seems like what we need to do is see what our current legal principles are, and compare them to what they should be. Then we should change the statute/common law to accord with what we say we believe to be fair.

As far as I can tell, the law as it stands in Canada right now says that:

1. All Canadian land ultimately belongs to the Crown (FedGov), because the Royal Proclamation said so in 1763.
   
   Doesn't matter whether the Natives living on it at the time were beaten by guns, germs or steel, or signed treaties that said explicitly that they would give up all control of the land, or signed treaties that said that they were willing to share the land and let colonists farm on parts of it if they in turn promised to leave the Natives alone in the rest of it and not take any of the plants & animals "as long as the sun may shine", or said nothing about the proclamation because they'd never heard of the Crown, because the only white men who had ever been in their corner of Canada were map-makers and the Natives had no idea that off in England somebody had decided they were now standing on British land.
   
   Whatever, it doesn't matter; all land belongs to the Crown.
   
   
2. Some land has "Aboriginal Title" attached to it.
   
   This means that the Crown has a duty to take care of the Natives on it. If they never signed any treaties (this applies to most of the North & West) they can claim Title if (a) they were living on the land in 1763 (good luck proving that one, though they can now bring oral history in as evidence) (b) remained there till the present day (good luck proving that one when you're talking about nomadic groups – and people who wisely fled from settlers with shotguns) and (c) had exclusive possession of it during all this time (good luck proving that one when you're talking about tribes whose natural use of the land included sharing the land with other tribes, because they weren't all anal about mineMineMINE like the Europeans were).
   
   
3. If a group has a treaty or can prove Aboriginal Title, the Crown has a duty to consider them before using their land.
   
   And it has to have a good reason before interfering with Aboriginal use of the land. Say, for example, military or natural emergency. Or preservation of public safety. Or conservation of endangered species. Or building infrastructure for the larger community. Or economic development. Or... anything, really, as long as the Crown really really really wants it.
   
   If the Crown has a good reason, they have to consult the Aboriginals about the planned use. They don't have to listen to them, but they do have to consult. And if they take the land away or render it unusable for Aboriginal use (say, by damming a river used for fishing, and flooding the adjacent plains or forests) they have to give Aboriginals fair compensation, ie cash.

So. People who have lived on land since before recorded history are told they can only stay on said land if it's OK with the real owners of the land, who never conquered them, signed treaties with them, or even informed them they had been dispossessed until a century or so after the fact. And if, say, the Crown decides that it wants to encourage economic development by giving logging companies permits to clearcut old growth forests and thus pretty much destroy the way of life of the folks living there, they can do so, as long as they give the Natives a big enough check to make it up to them.


Seems a little... appalling, to me. And yet that's exactly what we're doing, right now, and most Canadians see nothing wrong with it. If we were actually living up to our principles of respecting Natives, or living up to the terms of the treaties we signed, or thinking of Native land as 'Native' in any meaningful way, we wouldn't even consider handing out permits to log on it. Any more than we consider giving an Ontario company a permit to log in Vermont because we've decided it's ours and we need to develop economically and we'll be sure to give those Vermont folks a big check so they can move somewhere else once we've destroyed their ecosystem and forest-tourism economy.

IMHO what needs to happen is we need to ask ourselves if what we really want as a country is an approach whose objective is to obliterate Native peoples one clear-cut and pipeline and golf course at a time. Because what we say is that we're committed to allowing them to live their lives and maintain their culture and independence. As we promised we would, in all those nifty treaties we signed and still refer to from time to time.


Personally, after the last couple weeks, I think we should just treat them as sovereign nations and forget any of our ideas about them being an extra-special part of Canada's Multicultural Mosaic^TM. I am willing to admit that this (a) is waaaaay more granola than even I am usually willing to go, (b) would be a political and logistical nightmare (and not a welcome change to many Natives) and (c) is probably brought about by being part of a January course that, by the nature of January courses, is a little bit like brainwashing in that you get immersed in one topic 24/7 as you wade through mountains of old-growth forests' worth of papers and articles and cases in your particular subject matter.

Failing the sovereign nation approach, though, I'd say that at least acknowledging that Natives should have better-protected land rights might be a start :)

Comments

[snarkhunter.livejournal.com]

Oooookay. Yeah, that? Pretty much blows. For once, I think the US is somewhat ahead of Canada.

[ciroccoj.livejournal.com]

Oooookay. Yeah, that? Pretty much blows.
Pretty much, yeah.

For once, I think the US is somewhat ahead of Canada.
Probably; it's not a high bar to reach for :( Although one of the articles I was reading for my paper claimed that in some states it was actually much worse.

The one US site I've read so far (haven't gotten to the US-heavy part of my paper yet) says

Although Indian Tribes are self-governing, they are regulated by the Federal government. Indeed, the Federal government has plenary authority to regulate Indian matters. In general, Federal legislation will apply to Indians and Indian country unless the statute provides otherwise. Such Federal legislation affects numerous areas, including land use, environmental protection, and labor relations, to name just a few.

It doesn't give details on exactly how the Federal legislation can affect land use. Then again, neither does Canadian statute law. On the surface it all looks quite caring and trust-y; it's when you look at the judges' decisions that you get a better idea of how the laws are actually implemented.

And actually, most Canadians don't have any idea of most of the details above. They mostly just think Natives get to live on reserves, drink, get lots of welfare, and not pay taxes. And every few years they start whining that they own some piece of land or other because centuries ago someone they claim to be descended from hunted a deer on it, and the government bends over backwards for them and screw over people who are trying to make a living by actually working and developing the land.

People are nice.

I should probably go to bed.

[snarkhunter.livejournal.com]

most Canadians don't have any idea of most of the details above. They mostly just think Natives get to live on reserves, drink, get lots of welfare, and not pay taxes

Most Americans think the exact same thing. And now that the reservations are earning quite a bit from the casinos, the resentment has gone up. People seem to think that the Native population is living high on the hog with all that gambling revenue. Never mind that those casinos are probably the only income the reservations are getting, and that that money *might* raise some of the poorer reservations out of total squalor into mere poverty. (Admittedly, some tribes have done better than others. The Puyallups, for example, have always been fairly powerful, and thus have been more successful. In part, I think, b/c they were able to hold their nation together *and* hang on to some of their land despite the many challenges.)

I totally believe that it's as bad or worse than Canada in some states. And in the coastal states, the fishing debates tend to cause huge problems on both sides. There was a *huge* debate in the '70s over the Puyallups' right to fish with nets, for example, and there's still a lot of lingering resentment over that.

I'm interested in how eminent domain (*snarl*) applies to the Indian reservations. I should look that up.