In early January, Indigenous land defenders had bunkered down in Wet’suwet’en territory in northwest British Columbia, on guard for yet another military-style police incursion to remove them from their lands.

More than a thousand kilometres away in a Vancouver courtroom, a B.C. Supreme Court Justice was making a striking set of admissions about Canada’s authority to conduct just such a raid.

In a decision on a case involving First Nations suing a Canadian company for damages over a hydro-dam, Justice Nigel Kent wrote that “some argue, in my view correctly, that the whole construct of Crown sovereignty is simply a legal fiction to justify the de facto seizure and control of the land and resources formerly owned by the original inhabitants of what is now Canada.”

It’s not every day a top judge concedes the moral bankruptcy of Canadian claims to Indigenous lands. And yet, Kent insisted, “while the legal justification for Crown sovereignty may well be debatable, its existence is undeniable and its continuation is certain.”

But is its continuation really so certain? As judges in Canada begin to acknowledge the ill-gotten theft of Indigenous lands in intellectual terms, Indigenous land defenders in Wet’suwet’en and elsewhere across the country want to make recovering them a material reality.

With remarkable speed, the slogan of “Land Back” has leapt recently from the margins to the mainstream, becoming a national rallying cry for a more bold and unapologetic Indigenous rights movement.

Even the Liberal government has felt some pressure, and saw the need to parrot the language, with Crown-Indigenous Relations Minister Marc Miller remarking this past October that “it’s time to give land back.”

But support from Canada’s political class, for now, remains confined to rhetoric. And in Wet’suwet’en and in other regions where First Nations are asserting their rights to the land, police forces armed with canine units and semi-automatic weapons continue to be unleashed on First Nations.

Could a more concrete policy agenda contribute to changing that? While a clear-cut agenda for “land back” has yet to emerge, Indigenous activists, legal scholars and allies say that it’s already possible to trace its outlines. 

Drawing from prior Royal Commissions and government studies, the long-time demands of Indigenous peoples and the new research of Indigenous think tanks, an agenda could potentially serve as a guide and step toward real land restitution.

Minimum vs. maximum program

“Would land back mean putting non-Native people on boats back to their countries of origin?” Mi’kmaw lawyer and professor at X (formerly Ryerson) University Pamela Palmater asked recently in a Breach video explainer.

Despite fear-mongering that often accompanies discussions of Indigenous land rights, First Nations leaders aren’t interested in displacing settlers—they simply want to make decisions about what happens to their lands.

“What we should be imagining is what Canada could look like if we started returning so-called Crown Lands back to First Nations,” Palmater says. “Who would you rather control these enormous areas—corporations who only see in the land dollar signs over the next financial quarter, or First Nations who have been taking care of the lands for generations?”

For millennia, First Nations managed the vast majority of lands in what’s now regarded as the southern and mid-northern parts of Canada. But today, under the federal Indian Act, “Indian Reserves” make up a minuscule 0.2 per cent of the landmass. Meanwhile, almost 90 per cent is currently considered Crown land—an archaic land regime that many Canadians might be sympathetic to overhauling.

“I think at its most radical, maybe most challenging and most promising level, “Land Back” is exactly what it says,” says Peter Kulchyski, a professor of Native Studies at the University of Manitoba.

Kulchyski, who has been involved for decades as a solidarity activist with Indigenous land struggles, imagines two tracks of political change necessary to reverse Canada’s theft of Indigenous lands. 

The “maximum program,” he says, would return land to First Nations, resulting in those nations “having absolute control over significant portions of their traditional territories and therefore significant portions of land in Canada.”

First Nations could then declare themselves sovereign nations that exist outside of the Canadian state. But Kulchyski admits such an approach is “systemically far-reaching” and would meet significant resistance since it would “directly contradict the logic of settler colonialism, and I would say would largely contradict the logic of capitalism.”

In the meantime, First Nations could still make significant gains within the Canadian federation—which would be a “minimum program,” Kulchyski says.

Janice Makokis, a treaty educator and Indigenous legal scholar from Saddle Lake Cree Nation in Alberta in Treaty 6 Territory, agrees. Makokis is a board member of the Yellowhead Institute, an Indigenous think tank based at X University whose reports have been crucial to popularizing Land Back.

When Makokis thinks about what Land Back would look like for her, she imagines “being able to be in my home territory, in my treaty territory, being able to fulfill and live my life as a Cree person, living the Cree laws that were given to us by the Creator—without any interference from either federal or provincial governments.”

But she thinks that kind of change “won’t come to fruition for decades, just because of where we’re at with the Crown-Indigenous relationship conversations and just how embedded some people and nations are within the existing colonial system through forced dispossession from their lands.”

For now, more incremental policy wins, either at the federal level or through agreements between the state and First Nations, could lay the groundwork for more.

“That would give as much decision-making power over as much land as possible to as many Indigenous Peoples,” Kulchyski says. Indigenous-run provinces could be created, for example, or provinces “could turn over authority for land management regimes to First Nations in specific areas.”

The Nunavut model, for instance, could be transposed to other areas of the mid-north, Kulchyski says. “You create a public government in regions of the country that are majority First Nations,” where everyone can vote but First Nations people hold the majority power. 

As a provincial or territorial government-equivalent, these public governments could receive land and resource rights through Canada’s National Resources Transfer Act.

There are roadmaps for such change, including in the 1996 Royal Commission on Aboriginal Peoples, most of whose recommendations have gathered dust in Ottawa. The commission, drawing on the Penner report before it, recommended creating a “third order of government” that would share the jurisdictional power of provinces.

Along those lines, there are already some living examples of co-management of lands, including what the Haida Nation has achieved in co-managing nearly half of their traditional forests off the northwest coast. There’s also a land agreement created by the Algonquins of Barriere Lake, which would give them co-management of nearly ten thousand square kilometres of their territory in northern Quebec. While falling short of direct “Land Back”, both involve First Nations winning significant say over decision-making.

Kulchyski, who’s been leading students on bush camps in Indigenous communities in Northern Manitoba for several years, was able to write another related idea into policy when he helped co-author the platform of recent Green Party leadership candidate Dimitri Lascaris.

The platform, probably the most radical one produced by a non-Indigenous politician to date, calls for the government to “develop a programme whereby Indigenous land-based education is made available both to urban Indigenous peoples and all Canadians, particularly young people.” 

Such Indigenous land-based education camps have been in development elsewhere, including by the Dechinta Centre for Research and Learning in Denedeh territory in the Northwest Territories, whose aim is to educate participants in Dene laws, ways of life, and political resurgence.

A “cloud over the land” 

One immediate legal obstacle that stands in the way of Land Back is the “legal fiction” that B.C. Supreme Court Justice Kent and even the Supreme Court of Canada have acknowledged underlie the government’s claim to Crown sovereignty.

The Doctrine of Discovery—which dates back to the 1493 Papal Bulls and King Henry VII’s 1496 letters to John Cabot authorizing the claiming of lands in the name of the English Crown—have legally paved the way for centuries of land theft.

Makokis says Canada must finally repudiate the doctrine, as was suggested in the Royal Commission, and more recently again in 2015 by the Truth and Reconciliation Commission (TRC).

According to Bruce McIvor, a Vancouver-based Métis lawyer, repudiating the doctrine in legislation wouldn’t be insurmountable.

The Discovery Doctrine is “not simply a historical or legal curiosity,” McIvor writes in his new book Standoff: Why Reconciliation Fails Indigenous People and How to Fix It, “it informs every aspect of federal and provincial governments’ relationships with Indigenous Peoples.”

Aerial surveillance footage from the RCMP’s January 2019 militarized raid of Wet’suwet’en and allied land defenders. Photo: RCMP.

Over the past half century, Canadian laws on Indigenous rights and land title have developed “based on the unfounded assumption that these are Crown lands, provincial or federal,” McIvor tells The Breach. 

Canadian courts, he says, “have conducted themselves like they have a well-used vehicle, and the motor engine’s hammering away but they’re not going to raise the hood and take a look because they basically said they can’t.”

To him, Land Back is about finally “recognizing the fact that the federal and provincial claims to these lands are illegitimate” in the first place.

If the courts say they can’t deal with the doctrine’s undermining of Crown authority, McIvor says the federal government can.

“There would be a debate with the provincial governments about their ability to pass such legislation, but that should be a debate that the whole country would want to see happen.”

Makokis agrees, adding it could be a “really complex, nuanced conversation and process” that would help educate the country about the roots of Indigenous dispossession.

For now, doctrine remains like a “cloud over the land,” McIvor says. 

Continuing to function on its basis, Canadian governments have relied on policies that strongarm First Nations into land claim agreements that “return” various small parcels of land in individual property to Indigenous peoples in exchange for the extinguishment of their underlying title to the bulk of their lands.

The law will always come from the land 

From the Siege of Kanehsatake in Mohawk territory to Gustafsen Lake in British Columbia, from Muskrat Falls in Labrador to 1492 Land Back Lane in Six Nations—Indigenous peoples have been reoccupying their lands in the face of colonial aggression for a long time.

At the Nimkii Aazhibikong camp in northern Ontario, Anishinaabe elders and other knowledge keepers teach language and culture. At the Unistot’en healing lodge in Wet’suwet’en territory, people are offered space to heal on the land. And in Secwepemcúl’ecw, the Tiny House Warriors have built solar-powered tiny houses in the path of the Trans Mountain pipeline.

The ways Indigenous peoples reclaim their lands are as unique as the knowledge systems those very lands have produced. And from those land reclamations come profound expressions of the laws that once governed the people and land without interference.

In 2020 Haudenosaunee land defenders reclaimed land in Six Nations of the Grand River territory that the government had sold to developers. Photo: Justin Brake.

Makokis points to women who are leading some of today’s biggest land reoccupations, like Sleydo’ (Molly Wickham) in Wet’suwet’en territory and the Manuel sisters in Secwepemc territory. She says these women-led movements will always be the fuel that drives any potential policy agenda.

“They’re out there fulfilling their original instructions, which are the original laws of where they come from and from the nation they’re born into,” she says.

“In many of our traditional societies, governance structures and legal orders, it was the women who were given the laws to carry and to give instruction to the rest of their people, of how to conduct and carry themselves and govern themselves,” Makokis explains. 

“And if many of the decisions that are taking place are absent of women, then we’re not honouring and following our own original instructions, governance and legal orders.”

For McIvor, any policy regime that would return stolen land won’t be a gift from colonial governments, but forced by the proliferation of Indigenous peoples exercising their rightful authority.

It will be “Indigenous people at large maintaining the position that their ancestors have always taken,” he says. “They’re building on the work and resistance of generations of Indigenous people who have come before them to say that as loud as provincial governments might shout their lies, they’re still a lie—and writing them down in legislation doesn’t make them true. 

“Court decisions which ignore the fact that we have an illegitimate federal and provincial system doesn’t make them true. And I think, finally, slowly, non-Indigenous people are waking up to this reality.”

A note from our editorial team
The Breach's coverage reaches hundreds of thousands of readers and viewers—no paywall, no ads. That's because our sustaining members contribute an hour of their wages per month to help us create independent, bold, transformative journalism. Join us today!

Leave a reply

Commenting on posts is open to our supporters. Already a supporter?

Your email address will not be published.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.