The Violence of the Letter: Land Claims and Continuing Colonial Conquest in Canada
Kulchyski, Peter, Canadian Dimension
The recent struggle over lands in southern Ontario near Caledonia points to the continuing problem with land-claims policy in Canada. This sentence could be used to begin an article every few years, only the place names change: the recent struggle at Grassy Narrows, the recent struggle at Stoney Point, the recent struggle at Oka. While there is a sense in which the current land-claims policy goes back to the beginnings of colonialism in Canada, the recent permutations are worth attention. Any understanding of contemporary conflicts needs to be informed by a strong and detailed sense of what has happened historically, as well as what is happening today.
A Brief History of Aboriginal Title
Aboriginal people insist that their land ownership comes from their having lived upon and used the land since "when the world was new" (to use Dene elder George Blondin's phrase). The Canadian state says that Aboriginal title derives from a set of legal documents like the royal proclamation of 1763. Guess who holds all the cards, and whose view gets the most attention?
The Royal Proclamation of 1763 was a founding constitutional document for Canada. After the seven years war the British needed to remove the military regimes that ran what was then New France and the other newly won British possessions. In October, 1763, a proclamation was printed that established civilian governors in each of the new British "possessions"; but about half of the document dealt with Aboriginal land issues. Fearing another rebellion in the wake of Pontiac's attempts to drive the invaders back across the ocean, the government decided on a policy of appeasement with Aboriginal peoples and promised to respect their land rights. To do that, the proclamation stated that only the Crown, not private citizens or colonial governors, could buy land from "Indians," and must do so in a fair and public process.
Although the American Revolution was inspired by a desire to avoid these strictures on grabbing Aboriginal lands, the policy embedded in the proclamation continued to be in force in British North America and, eventually, in Canada. For example, lands were purchased in straightforward cash-for-land deals with Mississauga Anishnabwe in order to help settle loyalists, including Joseph Brant's Mohawk followers (this includes lands currently subject to dispute around Grand River). Later land purchases started to take the form of treaties, both land and political relationship agreements: The two Robinson treaties north of the Great Lakes and the numbered treaties on the prairies were more than cash-for-land deals; they involved recognition of an ongoing political relationship based on mutual respect.
However, after Confederation in 1888, a decisive court decision of the judicial committee of the Privy Council, which at that time acted as the supreme court for Canada, determined that the "title" discussed in the royal proclamation was not outright ownership, but rather a "burden" on underlying Crown title. Crown title was gained through so-called "discovery." "Discovery" is a legal doctrine that held that the first European power to plant a flag on a territory gained exclusive jurisdiction there vis-a-vis other European nations. The doctrine was deeply racist because it presumed local peoples were not at a level of "civilization" that allowed them land-ownership rights.
"Discovery" somehow came to have a legal status greater than Aboriginal title, gained through centuries of use and occupation. The last of the great numbered treaties, Treaty 11, was negotiated in 1921, and the Williams Treaty of 1923, a treaty regularizing the cash-for-land purchases that had been made in southern Ontario, was the last treaty negotiation for decades.
By now, the Canadian government, no longer worried about military threats posed by Aboriginal peoples, simply ignored the continued existence of Aboriginal title in any form. …