The Decibel - Land back and the next stage of reconciliation

Episode Date: September 30, 2022

It’s become something of a rallying cry to move reconciliation forward, repeated from British Columbia to Ontario to New Brunswick. But what exactly does “land back” mean? Bruce McIvor has written extensively on the struggles people face when trying to make a legal case for the return of their traditional lands — not least because he’s represented  some of them. He’s a partner at First Peoples Law, and the author of Standoff: Why Reconciliation Fails Indigenous People and How to Fix It. Questions? Comments? Ideas? Email us at [e-mail]

Hi, I'm Mainika Raman-Wilms, and you're listening to The Decibel, from The Globe and Mail. Today, on the National Day for Truth and Reconciliation, we wanted to look at something that gets brought up a lot in conversations about reconciliation. Returning land to Indigenous people. This is commonly known as land back. There are many different ideas about how to go about this. One way is through the legal system. They want a recognition of their sovereignty over the land and a discussion and acknowledgement

that Canadian sovereignty over those lands is very questionable. Bruce McIver is a lawyer and partner at First Peoples Law and the author of Standoff, Why Reconciliation Fails Indigenous People and How to Fix It. He's represented many Indigenous groups looking to regain control over their traditional territory. And today, he'll tell us about some of those cases. This is The Decibel.

Bruce, thank you so much for coming back on the show to speak with me. Well, thanks for inviting me on. Briefly, how would you define the concept of land back? I think it's important when you're talking about land back to keep in mind that it means different things to different people. And so I have my own views of what it is. But of course, different people across the country will have their own views. I think for me, land back in its current form really gets to that central issue of what gave Canada the right to exercise its laws over Indigenous lands. And so when people are talking about land back to a large extent, they're talking about they should be able to exercise their own indigenous laws over their territory.

And that's a fundamental change that needs to happen. And for the purposes of our conversation today, we're going to focus on the legal side of land back. I think, honestly, when a lot of Canadians hear land back, they wonder what it would mean for them if they own land today in Canada. What would it mean for them, Bruce? I think it would mean, first of all, recognizing that it's very questionable what right they have to that land. A lot of Canadians own land in what we call fee simple. In the law, that's based on a grant from the Crown. And Land Back goes to the issue of whoever gave the Crown the right to issue them that grant. And then what it would mean for them, I think it could take different forms, but

it can raise for them what should they be doing if we're going to have real so-called reconciliation? What should they be doing personally to address that situation? Would it mean giving up land for a lot of people? For some people, it has come to that. I get calls, you might be surprised, on a regular basis from individuals across the country saying we'd like to give land back and they want to have a conversation about what that possibility would look like. It's not as simple as you might think,

but it is very encouraging when I do hear non-Indigenous people say, yeah, I think I'm going to take a personal responsibility and try to address this in a meaningful way. What about, I guess some people may say, you know what, I do support this in principle. This is something important to do, but I own a house and I've worked my whole life to pay for this house. Like, is there some way, I guess, to hold those two things at the same time? I think there can be. One of the interesting proposals I've seen recently was in the city of Victoria, where there's a proposal there to add an optional extra amount onto property taxes that individuals pay and that money would flow back to the indigenous people whose lands those actually are. So there are different ways to do this.

I think there's a misconception sometimes stoked by certain parts of the population that land back means you're going to lose your house. Someone's going to come and take your house away. I think that's pretty unlikely. But I think it's important to start with the fundamental question of Canadian sovereignty over those lands. And then the second point, this point about the taxes is who gets to benefit from the lands. Yeah. For Indigenous people, why is land back so important? I think it's one of the interesting things about the current land back

movement. And it's important to keep in mind that this isn't new. Indigenous people have been calling for land back for hundreds and hundreds of years. It's taken different forms over the generations, but we can go back to just in the recent past. Oka, Gustafson Lake, Ipper, Wash, those are all their own forms of land back. I think one of the things that's really interesting now about this is that a lot of Indigenous people across the country are frustrated with governments coming to Indigenous people and basically saying, let's make a deal where we'll guarantee you a small percentage of your territory. So that'll be your, quote, land back. In exchange, you'll give up all your rights over the rest of your territory. And that's the type of deal that a lot of Indigenous people are just fundamentally opposed to.

It's just a modern form of colonization. It's a campaign to get Indigenous people out of the way so non-Indigenous people can exploit their lands. This goes back to, you know, one of the prime examples, John A. MacDonald. That's what John A. was up to. The Canadian government's doing the same thing now. They just take a more subtle approach. So a lot of Indigenous people don't want those deals. And instead, they want a recognition of their sovereignty over the land and a discussion and acknowledgement that Canadian sovereignty over those lands is very questionable. This is actually coming into practice, or it has been in practice for several years now. The first time an Indigenous group has made a successful land claim in Canada was the Silcotin First Nation

in BC in 2014. Can you tell us about this case, Bruce? Yeah, so the Silcotin decision from 2014 is really important because, as you say, it was the first time that a Canadian court made a declaration that these lands, these particular lands, are what's called Aboriginal title lands, protected under the Constitution. Indigenous people had fought for years and years and years, and that was a great victory, not just for the Silcotin, but for Indigenous people across Canada. And how that relates to land back is that the essence of Aboriginal title within the Canadian legal system is two main things. One, Indigenous people get to benefit from their lands. We're not talking about reserve lands. We're talking about their

so-called traditional lands, their territory. So they get to benefit. And then really, really importantly, they get to exercise their laws, responsibilities, and stewardship over those lands. And so for me, that's how the Silcotin decision relates directly to this land back movement. But I think it's really important. That's not the only way to get at this land back idea. There was a really important decision last year in BC regarding Treaty 8, which extends into northeastern BC. And there, the Blueberry River First Nations were successful

to stop the government from just making their own decisions over the land. They showed that there are these incredible cumulative effects on their way of life. They were successful. And now the result is something very similar to what people are looking for in the land-back movement. The provincial government has said, we can't carry on like this. We have to involve Indigenous people in deciding how their lands will be used to protect their way of life. We'll be right back. Can you help me understand a couple of, I guess, the distinctions here, Bruce? You mentioned Aboriginal title.

There's also land claims. What is the difference there? Right. So there's actually three main concepts here. One is inherent Indigenous title to the land. Aboriginal title is a concept created through the Canadian courts and the common law. So it's limited, but Aboriginal title does have at its fundamental core exercising your laws over the land and benefiting from the land. Land claims is a different thing. the current land claims policy was developed following the 1973 calder decision where the

court then said there is probably such a thing as aboriginal title and it's based on the pre-existing rights of indigenous people because up until then the federal government had denied that it even existed so following that canada came around and said, okay, I guess we got to deal with this. And so they created what's called this comprehensive land claims policy. And those are what people refer to as land claims. Are there any cases in Canada that we can look to that have been a case of this return to inherent title that you were mentioning? Not directly. I think we are getting movement in the direction of space being created to exercise aspects of that inherent title. So exercising

decision-making authority. Maybe the first stage is what's called shared decision making. So you do have different one-offs across the country where Indigenous people aren't giving up rights. They aren't exchanging them, but they are reaching agreements with government to exercise their decision making over the land. So that Blueberry River decision in Treaty 8, that's an example that came out of the litigation, but that's what the result was. And now that's led to similar types of litigation elsewhere. So there was NL Verda First Nation last week just filed a similar type of litigation. We have a client in northern Ontario. We'll likely be filing one soon. And how does this work then? If this is an inherent title that's outside of the system that we've designed, this court system where these cases would eventually work their way through. How does this work if it's not really part of that system? Well, that's part of the problem because Aboriginal title within the Canadian common law system, that's not Indigenous people's own title. It's not Nakoda title nachalness title migma title based on their own laws it's a form of title created through the common law through canadian courts that assumes canadian sovereignty

over the land it's based on that assumption i know when we were on the show before i talked about how that for a lot of Indigenous people is just that fundamental lie. And then what's really difficult is that even if you're successful, the courts have said, and the court said this in the 2014 Silco team decision, it's not like it can't be infringed. So even if you're successful, the courts have said there's various reasons that federal and now provincial governments can make arguments to trample on your title. So it's really important that that's kept in mind. This is a continuing tension. And I know a lot of Indigenous people across the country have a problem with that whole concept of Aboriginal title. Yeah. I want to ask you about another ongoing case, Bruce, with the Elsie Buktuk First Nation in New Brunswick, because I know you're actually currently representing people seeking

territorial restitution there. What is going on in El Ciboktuk? Right. So that's one of my clients. They filed a title claim on behalf of all the Mi'kmaq, so not just themselves. Several years ago, four Aboriginals titled over about a third of New Brunswick. And that really came out of a frustration with their rights and responsibilities being ignored, particularly by the provincial government. That was in the aftermath of the fracking confrontation with the RCMP. So they decided to go that route.

I think what's really interesting there is you filed that kind of claim and then you're left with the federal government and the provincial government. So the way laws are divided in Canada, responsibilities between the federal and provincial governments, it puts Indigenous people in a bind because they might begin a serious conversation with one level, usually the federal level of government. There, when we filed it, the federal government filed their defense and said that they wanted to work towards, if possible, harmonizing crown and Mi'kmaq title. When I read that in their statement of defense, I literally almost fell off my chair. Why is that so surprising?

Why was that the thing that actually made you almost fall off your chair? Because usually you don't have a recognition that Indigenous title even exists. Okay. Usually what you'll have in a defense is deny, deny, deny, deny, deny. So what the federal government said there was, well, if we are pushed into court and we have to fight this out, we will raise all the usual denials and defenses.

But at the same time, they also said they would prefer to find a way forward that would harmonize title. And that's based on recognition of Mi'kmaq's title. That's what was very unique about that and is promising. But then you end up in the situation of, under the Canadian Constitution, who actually controls most of those lands, the so-called crown lands? It's the provincial governments. Ah, okay.

And the provincial government, usually it all depends where you are across the country. But so far, the provincial government in New Brunswick has been unwilling to seriously engage at the same level and on the same principles as the federal government. Instead, they've been taking the typical deny, deny, deny approach. That's interesting, though, because the federal government says, yes, we're agreeing to talk, we're open to these ideas. But really, it comes down to the provincial government actually having control over those areas. And that's where it's kind of been stonewalled, it sounds like. And that's common across the country. I think it's going to be a matter of provincial governments finally coming to the realization sticking their head in the sand isn't going to solve it. It's not going to resolve it. Land back is not going away. That's why I called my book Stand Off, because the core of that is that Indigenous people aren't backing down. They're not going to back down.

Their ancestors never backed down, and their children won't back down. So finally, non-Indigenous governments are going to have to wake up to that fact. And if they want what they always talk about, certainty, certainty, certainty, certainty, the only way so-called certainty comes is coming to the table and actually recognizing Indigenous laws over the land and working with Indigenous peoples to ensure that they can fulfill their responsibilities to the land. I know as a lawyer, Bruce, you've represented different clients actually trying to get land back in part of this fight. Is there anything that you've learned through that process that you think more people in Canada should really understand? Yeah, I think a big part of it is how important it is for non-indigenous people to educate themselves about these issues. I thought it was a positive thing that came out of the Pope's visit to Canada

during the summer. People really started to educate themselves about the papal bulls and the doctrine of discovery. And for a lot of them, it was an eye opener, just like it's an eye opener for them to read and learn about the horrible history of residential schools. Today is the National Day of Truth and Reconciliation. I had some people describing it to me as a holiday, and it really upset me. It's not a holiday in that sense it's a day to do some important work yourself to do some thinking about this and i think that's the number one thing non-indigenous people need to educate themselves about these things and then they need to put pressure on the provincial and federal governments to change their policies,

to live up to the values that they impose and change their positions in court. Stop fighting Indigenous people about these things. Bruce, thank you so much for taking the time to help us understand this today. Thank you. That's it for today. I'm Mainika Raman-Wilms. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Kasia Mihailovic is our senior producer, and Angela Pichenza is our executive editor. Thanks so much for listening, and I'll talk to you next week.