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Crown and Aboriginal Occupations of Land: a History & Comparison

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Crown and Aboriginal Occupations of Land: A History & Comparison John Borrows∗ October 15, 2005 EXECUTIVE SUMMARY This paper examines the historical context for the development and use of physical occupation and civil disobedience by the Crown and Aboriginal peoples to accomplish their objectives relating to land, treaty, and other rights. It also contains an inventory and short description of significant occupations, and reviews fundamental flashpoints that trigger such actions. Following this inventory best principles and practices for the peaceful and constructive resolution of Aboriginal occupations are outlined. The paper concludes by examining the conflict and resolution of a dispute in Clayoquot Sound in British Columbia to describe specific processes, outcomes, and best practices relating to occupations. The first section of the paper deals with the historical context of occupations and blockades. It begins by reminding the reader that Aboriginal peoples occupied land prior to the arrival of people from other continents. It shows that during this period conflict could exist among various First Nations over land and resource use. As a result, Aboriginal peoples developed complex systems to avoid war and develop peaceful relations with their neighbours. To defuse conflict Aboriginal peoples pursued, inter alia, treaties, feasting, trade, negotiations, marriages, friendship, conferences, games, contests, dances, ceremonial events, and demarcations of land. The historical component of the paper also examines the impact of non-Aboriginal people’s arrival in North America. Early Aboriginal–non-Aboriginal relationships followed many of the same protocols and values that Aboriginal peoples used to create peace. Among the most important of these values were treaties; Aboriginal peoples required their consent for non- Aboriginal occupation. Non-Aboriginal peoples agreed to follow this principle in the Royal Proclamation of 1763 and through their course of dealings. If non-Aboriginal peoples did not abide by these rules, Aboriginal peoples would reoccupy their lands. The paper then reviews how, through time, non-Aboriginal peoples began to exercise greater control over Aboriginal land and resources. In doing this they did not always secure Aboriginal consent. The historical section of the paper ends by making the point that, in many instances, non-Aboriginal ∗ Opinions expressed are those of the author and do not necessarily reflect those of the Ipperwash Inquiry or the Commissioner 1 occupations and blockades prevented Aboriginal peoples from accessing their land. This created the conditions for subsequent conflict. The second section of the paper contains an inventory and brief description of major occupations and blockades in Canada through the past 30 years. It makes the point that the effect of non- Aboriginal occupation and blockades of Aboriginal land has resulted in Aboriginal people sometimes attempting to reoccupy their land through physical means. The thesis of this section is that Aboriginal blockades occur because of a failure to recognize and affirm Aboriginal land and resource rights and because of a failure to address the psychological effects of this denial. The paper makes these points by reviewing events at: Anishinabe Park, Moresby Island, Barriere Lake, Temagami, Old Man River, James Bay, Labrador, Oka, Lubicon Lake, Gustafsen Lake, Cape Croker, Mount Currie, Clayoquot Sound, Sun Peaks, Burnt Church, Grassy Narrows. The review reveals the scope and causes of disputes between Aboriginal peoples and others in Canada. It speaks of the trauma this causes people involved in these disputes. This section of the paper concludes by drawing on the insights of Harvard University Clinical Psychologist Dr. Judith Herman. Her work addresses the importance of developing a supportive social context to reduce and remedy conflict. This paper applies her ideas to occupations and blockades in Canada. Her work speaks to the importance of recognition and affirmation in recovering from individual and collective trauma in Canada. The third section of the paper outlines best principles and practices for dispute resolution where conflicts are related to occupations. The paper suggests that guidance can be taken from section 35(1) of the Constitution Act, 1982 because of this provision’s charge to recognize and affirm Aboriginal rights. It suggests that recognition and affirmation is best accomplished by the termination of non-Aboriginal blockades and occupations of Aboriginal lands. Alternatively, consent is required to justly occupy Aboriginal land. The Supreme Court of Canada has developed helpful principles to assist in this result. Public officials could apply these principles in their work. The police, politicians, civil servants, developers, third parties, and others could take guidance from the court’s calls to: deal with Aboriginal peoples in utmost good faith; avoid sharp dealing; cultivate a trust-like, rather than an adversarial, relationship; incorporate Aboriginal perspectives in decision-making procedures and outcomes; approach dispute resolution with a eye to reconciliation; learn Aboriginal languages and linguistic perspectives on issues; learn and practice Aboriginal cultural norms; interpret historic events as historic Aboriginal groups would have naturally understood them; avoid overly technical interpretations of ideas or events; interpret Aboriginal aspirations flexibly to avoid stereotypes; infringe Aboriginal and treaty rights as little as possible; engage in effective consultation with Aboriginal groups; reasonably balance Aboriginal interests in making calculations of the public good; provide compensation where Aboriginal economic interests are diminished. The paper suggests that the application of these principles should not be solely court-focused. They should be considered public obligations that bring the police, corporations, governments, and others into compliance with the spirit and intent of Canada’s law dealing with Aboriginal peoples. The application of Canada’s law by public officials could help end non-Aboriginal blockades, and thereby assist in terminating Aboriginal blockades. The paper concludes by analyzing conflict at Clayoquot Sound in British Columbia to demonstrate best practices in reducing Aboriginal–non-Aboriginal conflict. Government and 2 forestry companies took account of Aboriginal peoples’ perspectives and permitted their participation in land use and management. Important consequences flowed from this approach. First, a government Ombudsman demonstrated how the government had failed in its obligations to the Nu-Chah-Nulth of the area. Second, the government created a process that resulted in Aboriginal peoples managing their resources through an Aboriginal-controlled logging company. The government also incorporated Aboriginal laws and values in a scientific panel to decide how logging would continue in the Sound. Despite these breakthroughs the analysis concludes by identifying the downside of the approach at Clayoquot. Aboriginal peoples did not escape larger systemic forces that displace more traditional land and resource use. Problems are also present because Aboriginal peoples’ future participation in decision making depends on government goodwill. Nevertheless, Clayoquot Sound offers a good example of how certain best principles for dispute resolution can find their way into practice. The paper concludes by restating its general thesis: Aboriginal and non-Aboriginal peoples conflict over lands and resources because of the lack of recognition and affirmation of Aboriginal rights and perspectives. Following principles and practices that dismantle non- Aboriginal blockades in Canada will help in reducing conflict. INTRODUCTION Aboriginal peoples have a pre-occupation. It is of land. They occupied land in North America prior to others arrival on its shores. Over the past 250 years Aboriginal peoples have been largely dispossessed of their lands and resources in Canada.1 This dispossession has led to another Aboriginal pre-occupation. It is with land. It is crucial to their survival as peoples. Its loss haunts their dreams. Its continuing occupation and/or reoccupation inspires their visions. Aboriginal peoples regard their traditional lands as sacred; it is integral to their culture and identity. They want to continue living on territories that have sustained them for thousands of years. Yet the Crown now claims occupation of traditional Aboriginal lands. When the Crown claims more land, this leads to conflict. Aboriginal peoples desire to hold onto their lands and resources to be more productive and preserve their ancient relationships. They struggle to resist further removal from their territories. They do not want the size of their territories further diminished. Therefore, Aboriginal peoples have attempted to protect and sustain their relationships to land and resources in many ways. They believe their previous occupation entitles them to present occupation. Yet others have unjustly settled their territories, and the Canadian legal system sanctions this result. This affects Aboriginal peoples’ psyche. It strains their respect for law. It creates a desire for change and focuses their efforts on reoccupation. Aboriginal peoples have chosen different methods from an array of options to help others understand and recognize their continuing connection to lands and resources in Canada. One of the ways Aboriginal peoples have tried to maintain their lands is through the continued
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