Is Reconciliation Really in Our Stars? Landmark Supreme Court Decision Recognizes Tsilquot'in Title
I really didn’t think reconciliation was possible in a country that has continually denied the genocide that has occurred on our lands. I knew the Tsilquot’in decision was coming and was going to be a big one, but I had not been prepared for Chief Justice Beverly McLauchlin’s words that read, “governments and others seeking to use the land must obtain the consent of the Aboriginal title holders” (emphasis added). I cried the same spontaneous tears that I cried this morning when I saw my newborn nephew squish up his little wrinkly face and let out a howl to let us know another Wet’suwet’en was born. But, as I sat there reading the decision, it was Gisday’wa’s face I saw. I imagined his old cheeks slowly wrinkling into a grin, as our hereditary chief who passed only a few short months ago, would have felt joy and relief with news of this victory for the Tsilquot’in. So, while I celebrate this win, it is with a heavy heart that feels the pain our people, culture, languages, and lands have endured through centuries of denial and oppression. I hope he and all those who have fought on the lands, in the courts, and on the streets—our people who have lived and died as the dispossessed--can feel this somehow and can see a light at the end of the dark tunnel for our children.
It took about three hours to read through the decision and I was waiting impatiently for the catch. The limitations and restrictions. Eagerly I read and analyzed every word and phrase to see what this would mean for my nation, for the Tsilquot’in, and our brothers and sisters. In sum, McLauchlin concluded:
I would allow the appeal and grant a declaration of Aboriginal title over the area at issue, as requested by the Tsilhqot’in. I further declare that British Columbia breached its duty to consult owed to the Tsilhqot’in through its land use planning and forestry authorizations (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44).
What made this declaration truly unique from all previous decisions was the amount of detail included in an attempt to clarify the issues that abound on unceded Indigenous lands. The ruling, for example, not only clarified what title meant for the Tsilquot’in but, what it meant for all our nations who have yet to have title recognized. By summarizing the case law to date, McLauchlin noted that all the communities asserting title to lands must continue to be meaningfully consulted and accommodated. She stressed this did not just mean sending a few letters and continuing on with business as usual. Rather, she stated,
I add this. Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44).
As we can see in the media, there is a hope that this will be a new day for relationships, specifically for resource extraction on the territories. For the Tsilquot’in, “Crown lands” are now theirs to manage and decide upon their use (traditional or modern) for their people and for future generations. Section 94 asserts that, “This gives them the right to determine, subject to the inherent limits of group title held for future generations, the uses to which the land is put and to enjoy its economic fruits. As we have seen, this is not merely a right of first refusal with respect to Crown land management or usage plans. Rather, it is the right to proactively use and manage the land” (Tsilquot'in Nation v. British Columbia, 2014 SCC 44). The Tsilquot’in now stand a fighting chance to better the situation for their people and to show our nations what justice looks like!
The catch, however, is that provincial laws still remain and that Aboriginal Title and Rights can still be infringed by the Crown if the laws and the infringements can meet certain tests. Namely, the infringement must be for the greater common good and not counteract constitutionally protected rights and title. While the decision attempts to bring as much clarity to infringement processes as possible, I forsee this being the next era of legal battles that ensue for nations post-title. The following passage, I believe, decreases the value of the economic trump card:
First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations. The beneficial interest in the land held by the Aboriginal group vests communally in the title-holding group. This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44).
If we can move forward, with the agreement that future generations’ ability to benefit from the land is our common vision, then true reconciliation may be possible. This dream however is reliant upon new relationships being built that recognize our common humanity, our place in nature, and tackles the enormous problems our generation faces in creating human environments that balance and correct the damages done to our planet. If this cannot be agreed upon, we can count on centuries more to see that rights and title are truly recognized and respected.
While I believe this has been an outstanding decision made by the Supreme Court of Canada, the next steps will also rely on people and nations taking action and ensuring that respectful relations can ensue. For nations achieving recognition of title new divisions of power will have to be outlined as well as laws, governance, and management plans for title lands. Furthermore, restitution for damages to our lands will still be necessary. To explain this further, if someone steals your car and they are caught and convicted, then the car would be returned. If the rear end is smashed, however, the thief is liable for the damages. In this case, the car was stolen and the owner locked in the garage and their children were kidnapped during the joy ride! Hopefully, this decision leaves room for restitution to move forward by stating,
Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward (Tsilhqot’in Nation v. British Columbia, 2014 SCC 44).
For those of us still trying to get our “car” back we must move swiftly to prepare our own nations. For the Wet’suwet’en, I would like to thank our lucky stars that we didn’t sign a modern day treaty and that we know we have the three tests of title in the bag. The long shot, of having 100% of our 22,000 km2 recognized and affirmed is not a pipe dream anymore. However, our biggest hurdle is to have all of our communities—Hagwilget, Moricetown, Wet’suwet’en First Nation, Burns Lake Band, Skin Tyee, and Nee Tahi Buhn along with our hereditary chiefs of all of our clans to sit at the same table and envision our future together as a united nation. With the promise of recognition of our title and rights, I think the conversation has changed and that we will see the benefit of working together with the solid boundaries set by our ancestors and the trespass laws that are enshrined in our hereditary governance system. Imagine the possibilities!
I will sign off with my deepest gratitude and congratulations to the Tsilquot’in and to all those who have fought for Indigenous peoples’ rights and title. I hope everyone working in this field, actually, for every person in this country to read this decision to understand why we have never, ever given up fighting. I will no doubt write more about this in the future, so please leave a comment on areas or questions you would like me to tackle.
***Read the Supreme Court Decision here.
A Grandma I've Never Met
For my first blog post, I think it is important to pay respect to my grandma, Emily. I've never met her as she died long before I was born, but she continues to be an important and symbolic matriarch of our family. I grew up hearing stories about this woman to the point that I feel like I actually did get to know her. Over the years, I eavesdropped on my mother's conversations with her sisters and brother and maybe as a young child I wouldn't have been so intrigued by them if their stories hadn't always ended in tears and sobs of longing for a mother who they had been stolen from.
For many people, "stolen" may sound absolutely absurd, and for me, it didn't really make sense for a long time either. It has been the unrelenting desire to uncover the truth of what happened to my mother and her siblings that has led me to learn about the history of my people, of colonization, and now of methods of decolonization in an attempt to right the wrongs of the past.
You see, when my mom was only six years old she was taken not only from her mother, but her father, siblings, extended family, and her culture to be put into a foster home. None of them ever returned to the care of their parents and none of them knew, until they were adults, what had happened that fateful day. I knew it hurt my mom immensely as her cries were filled with wails wretched directly from her heart. Loving my mom as I do, I cannot even comprehend being taken away from her as a child. Now, being a parent, it is even more heart-wrenching to imagine my child being taken from me!
Nowadays, I often begin my workshops on colonization with this story and that it wasn't until I attended university and took a First Nations Studies course that I began to realize the systemic, racist, colonial history that tore our family apart. But before I go there, let me tell you a bit about Grandma.
Emily was born to Patrick (Paddy) and Julie Isaac (nee Tom) who at that time were living around the area of Broman Lake. She had many brothers and sisters as was the trend in those days. I've always heard that my grandma was a strong lady, with a friendly and precise presence. In her pictures, she looks a lot like me, my cousins, and aunties with our high and full cheeks, cute noses, and a perma-scowl that's etched into our foreheads from days of squinting in the sun--not from being angry--although I'm sure the wrinkles have also become deep trenches from all of the sorrow and pain. She married young to a man named Freddy Augusta and they had a daughter named Agnes and two babies who passed early on. As I understand it, Freddy, and Emily split up and she later met my grandfather, the love of her life, Jimmy Johnny Skin. They had 12 more children, 7 of whom have since passed on. All, have a story that would make your heart shudder, but I like to think that they were survivors and warriors--smiling, crying, emotion-filled people on the front-lines of the war of extermination.
My grandma, with her husband raised all of their children around the Burns Lake area. They had a house on the Burns Lake reserve which was burned down with speculation of arson and they rebuilt a home for themselves on the mountain side near Eagle Creek. Sadly, in the 1960s for "unknown" reasons all of the children were apprehended by the Ministry of Children and Family Services and were put into separate foster homes, the older ones were sent off to residential school. Mom says she remembers being bathed in a tub behind an old wood cook stove when the "big cars came". Without knowing or being told what was going on, my six year old mom was later drug down the courtroom steps crying and screaming towards her new life. The siblings didn't see each other again until they were in their teens or adulthood despite living in close proximity to one another. The younger ones even went to the same school, but didn't know one another and didn't taunt each other playfully like I did with my younger brothers during recess. The ones who survived struggle to rebuild the bonds, connections, and culture that were taken from them.
In studying our history, the apprehension of an entire generation of the Skin/Augusta family became not just our story, but that of Indigenous children and families across Turtle Island (North America). As the residential schools began to be shut down, the governmental policy mandated to "Take the Indian out of the child", shifted towards the theft of children from their homes and communities to put them into non-Native foster homes. Children were taken en masse into homes in an attempt to assimilate them, to take the savage out of them, to teach them to be good little white kids. A quote by Homi Bhaba that has stuck out in my mind over the years, was that colonial assimilation forced us to be "white, but not quite" (1994). Our skin colour and our damned persistence to want our families, communities, and cultures intact, kept us from fitting neatly into Western society.
With dates, facts, acts, quotes, and above all stories that included our history came to unfold I came to realize what our grandparents must have went through in their struggle to survive. What a strategy though, what ingenuity, to take children from their parents, parents from their children. Being a mother, I know, as you probably do too, that you might as well take the will to stand up, to breath, to eat, to live. At this point in my journey, I could not fully comprehend "why?". Why on earth would the government want to take away the children? It doesn't make rational sense. They wanted to civilize them they say, well, why is that so damned important? Live and let live seems like a fairly reasonable adage. If we wanted to eat moose and beaver and berries for dinner so freaking what? The reason, I have come to understand is bigger, more obtuse, and for my friends in the struggle you know where I'm going with this, but for those who this topic is new, the problem at hand can be summed up in one simple word. Land. The land filled with resources and space for settlement, places to wrap new borders around, and landscapes to rename. Sure there were other things involved like religion that people and nations often fight about, but come on now, this was a war for the land and it was waged upon our children, upon love, upon family, community and culture. What is most frightening, is the war is not over. Our children are still stolen from our homes, our families punished for the traumas that were engrained in their existences, and all of those things that were stolen have not been returned.
For my mom, grandma, grandpa, aunties and uncles, for my cousins and our children, for all of our relations who are struggling to rebuild the relationships and the connections that were lost to one another, to our families, communities, and lands I dedicate this blog and welcome you into my thoughts that are begging to be told. Stay strong my family, my brothers and sisters around the globe, especially to those who are still estranged....WE ARE STILL HERE!
Awet'za! (That's all for now)
Bhaba, Homi (1994) The Location of Culture. Routledge, New York.
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