The increasing constitutional power being granted to Indigenous groups by our courts and governments is creating a crisis of diminished Crown sovereignty. This process is damaging to the Canadian economy, weakening the rule of law, and most importantly, increasing racial divisions in our country.
Now, there is another process that is causing even more division in Canada. This process is Indigenous land acknowledgments (ILAs). Governments and private organizations (usually those that are government-funded) who make these declarations should, in the better pursuit of their own long-term interests, and in furtherance of the public interest, stop making these statements. They are legally harmful and racially divisive.
We can clearly see this in the City of Toronto ILA:
…a statement recognizing the traditional territory of the Indigenous people(s) who called the land home before the arrival of the settlers…providing a land acknowledgment at the beginning of an event or meeting gives time for reflection and demonstrates recognition of Indigenous lands, treaties and peoples. It involves thinking about what happened in the past and what changes can be made going forward in order to further the reconciliation process…Using and participating in a land acknowledgment is a way to recognize the enduring presence and resilience of Indigenous peoples in this area from time immemorial. They are also a reminder that we are accountable to these relationships. Many municipalities across the country are now publishing similar ILAs, including that of my hometown of Espanola, Ontario.[1]
The Association of Municipalities of Ontario defines an ILA as “a practise of reconciliation aimed at recognizing the traditional or treaty territories of Indigenous peoples.” The Association further says:
While municipal governments should be mindful that inaccurately acknowledging entities and territories may have legal implications, land acknowledgment statements are best interpreted as a venue for recognizing what is known of past Indigenous usage and occupation of land. (Emphases added)[2]
The Espanola ILA reads as follows:
Please acknowledge with us, that meetings of council are held in the traditional territory of the Anishinabek, where the Chiefs of Sagamok Anishinabek, White Fish River and Atikameksheng Anishinabek agreed to share this land through the Robinson-Huron Treaty of 1850. (Emphases added)[3]
Espanola’s “share this land” statement is a clear illustration of an “inaccurately” stated ILA having unintended, and potentially very harmful “legal implications” for the Town and its taxpayers. This statement can be a warning to other municipalities.
Surprisingly, the Robinson Huron Treaty of 1850 said nothing about “sharing this land.” In fact, it said the opposite: “…the Chiefs…do hereby fully, freely and voluntarily surrender, cede, grant and convey unto Her Majesty (the Queen) all their right, title and interest in and to, and in the whole of…the territory…” covered by the Treaty. (Emphases added)[4]
There is not one word about “sharing” in the Treaty. As well, there was no discussion about “sharing” in the deliberations leading up to the signing of the Treaty. It was always about surrendering and ceding the Treaty territory to the Queen, now the Crowns of Canada and Ontario, with the exception of the reserves that were established by the Treaty. The companion Robinson Superior Treaty, dealing with the bands in the territory on the shores of and north of Lake Superior was worded the same way. (Together these are called “the Robinson Treaties.”)
Another problem with the “share this land” statement is that when the Robinson Treaties were signed there were so few Indians in the Treaty territories, and they were spread so thinly, and they exercised such scant possession of and control over those territories, that it can’t reasonably be said they were anything like “owners” with something to “share.” To “share” something you have to own it, showing “ownership.” That was not the case here. Europeans, with neither invitation nor opposition, simply moved in and occupied land that was largely empty.
As Indigenous author and lawyer William Wuttunee wrote in Ruffled Feathers: The ideas that “Indians were the first owners of this country” and “the land was taken from them,” are misconceptions. At the time of the arrival of the white man, Indians did not occupy all the country; therefore it cannot be said that the land was taken away from them. Those areas which were unoccupied were never taken away from anyone.[5]
Following Mr. Wuttunee, the Robinson Treaty territories were mainly unoccupied. The land covered by this treaty stretched from near Penetanguishene, at the southern end of Georgian Bay, to Lake Superior’s Batchewana Bay, just north of Sault Ste. Marie. Only 17 Indian bands, numbering only 1422 people, lived in this vast area. Each of the 17 band Chiefs who signed the Treaty represented only about 85 people including women and children. It was basically the same for the Robinson Superior Treaty area.[6]
These small bands were not “nations” in any strict sense of the word. They were merely small clans or families scattered loosely and tenuously over a vast landscape, and they did not exercise any real control over the landscape.
So again, it was not really a “land sharing” per se that happened in 1850.
Why does this error in the Espanola ILA matter? What might the “legal implications”?
Despite my saying that the Treaties were all about the surrender of the territories and not the sharing of territories, there is now one Ontario Superior Court of Justice decision, Restoule,[7] that is an example of the Court’s interpretation that the Robinson Treaties were indeed agreements to share the territories and not surrender them. This decision is a massive blow to the idea of Crown sovereignty, which, frankly, is the mainspring of our economy and the fount of the rule of law that governs us. In Restoule, the court ordered Canada and Ontario to pay to the Robinson Treaties bands, an appropriate share of all the revenue that Ontario has received from the sale, leases, and licenses of Crown lands, possibly going back to 1850-1875. Surprisingly, the compensation has not yet been calculated. Nevertheless, the final payment to these bands, if this decision is not overturned on appeal, will likely be in the millions if not in the billions of dollars. This money will have to come from taxpayers.[8]
Indian bands in Western Canada and elsewhere, inspired by Restoule, are now claiming that their particular land surrender Treaties did not mean what they clearly state, but rather they were a sharing agreement. Again, there will be further untold wounds to Crown sovereignty and costs to governments and taxpayers if this new view of the treaties prevail.
So Espanola’s high-minded and well-intentioned ILA, like all ILAs across the country, is harmful on both policy and practical grounds. Like all ILAs, this statement is against the citizens’ own legal and financial interests because this “sharing” Restoule ruling, has been agreed to implicitly in Espanola’s ILA. Perhaps the court hearing the appeal of the Restoule decision will be influenced by the fact that the Town of Espanola apparently supports the Indian bands’ claims.
Actually, this is a national concern with ILAs. There are numerous Indigenous compensation and land claims against the federal and provincial governments working their way through Canadian courts. ILAs, which in terms of the law of evidence, are regarded as “statements against interest” to which courts have traditionally given substantial weight, and made legal interpretations based on them against their makers, could well be taken judicial notice, an interpretation aid, in favour of the Indigenous claimants against the Crown.
In Eastern Ontario the federally funded Canada Council for the Arts acknowledges that they are “on the unceded, unsurrendered Territory of the Anishinabe Algonquin Nation.”[9] This claim, however, is not strictly true. In the mid-1600’s the Algonquins were driven out of the Ottawa Valley by the Iroquois, and they did not return for 200 years, and then only in tiny numbers. The Council further compromises its position by stating that it will “honour the commitments to self-determination and sovereignty “wehave made to Indigenous Nations and Peoples.” Considering that the “Algonquin Nation” is suing Canada, claiming that they are the true owners of the entire lower Ottawa Valley, including Parliament Hill, and that the matter is before the Courts, these are ultimately self-defeating and racially divisive statements. (If the Algonquins win their case and the Canadian taxpayer, like in the Restoule situation, is put on the hook for millions or billions of dollars in compensation, Ottawa will have to come up with the money.
All ILAs implicitly endorse and encourage the maintenance and expansion of the current harmful Indigenous-non-Indigenous dispute.
This harmful situation with respect to Indigenous and non-Indigenous groups, which has been endorsed by our courts, academia, the media, and politicians, is that Indigenous groups are separate, independent, self-governing “nations” within Canada, and that all of Canada’s task, in order to promote so-called “reconciliation,” is to promote their further independence from (but not lessen their financial dependence on) the rest of Canada. For the reasons clearly set out in There Is No Difference, (website thereisnodifference.ca), I argue that this is a destructive, dysfunctional, and disastrous status quo for both for Indigenous and non-Indigenous Canadians. Simply, the heart of this vision is that the sovereign rights of our governments to make laws for the benefit of all Canadians would be lessened when it comes to Indigenous people. This situation, which some political elites want to expand, means that many laws and regulations will no longer apply to Indigenous groups because they are “sovereign nations” governed by their own laws even when their nations are completely enclosed within the Canadian landmass. Recently, Canadians have heard this claim in relation to pipelines, the blockades of roads and railways, and by Indigenous groups who claim that they are not bound by provincial or federal regulations.
The political philosopher Edmund Burke wrote that a government “cannot renounce its share of authority,” and that any government or society that does so “must soon be disconnected into the dust and powder of individuality.”[10]
Our political elites are now actively renouncing significant portions of the legitimate “authority” of our governments in favour of Indigenous groups. As a result, they are weakening provincial and the federal governments’ legal and financial abilities to act for the general welfare of all Canadians, regardless of race. In doing this, these elites are inadvertently pitting groups of Canadians against each other.
Why is sole Crown sovereignty so important?
Crown sovereignty is, in fact, the fount and the guardian of our democracy, our property rights, and the rule of law. To diminish the Crown’s sovereignty in Canada is to attack the Crown revenue, and to diminish our democracy by weakening the rule of law. This process will, no doubt, inflict harm on our economy and on our way of life. In the final analysis, it is only a fiscally sound and strong state that can protect the rights and integrity of all Canadians.
So there cannot be any room in all of this for the existence of numerous, separate, autonomous, Indigenous Nations, “mini-states,” which are illiberally based the race of a group of people.
Again, ILAs are improperly wading into profound, nuanced, and complicated areas of public policy and constitutional law.
There are other reasons why the practise of making ILAs should be stopped..
There’s no risk of Canadians forgetting that the ancestors of today’s Indigenous peoples were for the longest time the sole inhabitants of Canada. It is patronizing on the part of the makers of ILAs to suggest that Canadians need to be constantly reminded of Canada’s pre-European history.
At best, ILAs constitute vague, bland, virtue signalling. They don’t do anything constructive to help Indigenous peoples. The fact that 400 years ago Indigenous peoples were the sole residents of what is now Canada is of no real relevance to the present. Today our Indigenous citizens are facing terrible and tragic social conditions, which ILA’s, with their unhealthy obsession with a romanticized past that never existed, do nothing to ameliorate.
Finally, ILAs, with their obsessive and relentless focus on race, increase the tension between Indigenous and non-Indigenous people instead of decreasing them. Their coercive nature of these ILAs leads to a confused, sometimes grudging, silent submission to them. No one likes the feeling of being compelled to mouth words they may disagree with. Instead of binding us together with a constructive vision of the future, with their unrelenting, misrepresentative focus on the distant past, ILAs push us apart.
Peter Best has practised law in Sudbury, Ontario, for the past 45 years. There Is No Difference, and this article,have been endorsed by Jack Major, retired Justice of the Supreme Court of Canada.
Peter Best
October 30, 2020
[1] City of Greater Toronto official website
[2] Association of Municipalities official website
[3] Espanola Mid-North Monitor, October, 2020
[4] Full text of the Treaties and official reports relating to them are in The Treaties of Canada with the Indians, by Alexander Morris, 1880, Facsimile edition reprinted by Coles Publishing Company, Toronto, 1969
[5] William Wuttunee, Ruffled Feathers-Indians in Canadian Society, at page 140 (Calgary, AB: Bell Books, 1971). Mr. Wuttunee, from the Saskatchewan Red Pheasant Reserve, was a founder of what became the Assembly of First Nations, and was one of Canada’s first Indigenous lawyers.
[6]Letter dated September 24th, 1850, from Crown treaty negotiator William Robinson to the Superintendent of Indian Affairs. See Alexander Morris, The Treaties of Canada with the Indians, above. Morris says that the purpose of the Robinson Treaties was “to extinguish” the Indian title.
[7] 2018 ONSC 7701
[8] This expenditure will likely result in harmful consequences to Ontarians, perhaps reducing operating grants to municipalities like Espanola because the provincial and federal governments are already providing services to the citizens only with the artificial and precarious aid of massive amounts of borrowed money.
[9] Official website of the Canada Council of the Arts
[10] Quoted by historian Tony Judt in Ill Fares the Land, Penguin Press, 2010
