February 28, 2007 is the first anniversary of the occupation of land on a building site in Caledonia. I’d like to take a look at what’s really going on here and elsewhere in the context of a Sun Times’ editorial, January 19, 2007. “No need for threats over land claims” was a very reasonable take on the most recent Native dispute over land—the occupation of a Deseronto quarry by members of the Mohawks of the Bay of Quinte at Tyendinaga. But it’s a take I disagree with.
The Sun Times says a group of protesters from the First Nation were threatening “to upset the orderly process [of land claim negotiations] that has been set in motion”. But it was that same group that, by protesting in November, kick-started the current negotiations that the Sun Times calls “cautious and measured”. So, why is this same group now blockading a quarry if an “orderly process” of negotiations had been started?
The Sun Times editorial answers this question itself: after decades of loss of use of the land they are claiming (remember, First Nations could not hire lawyers to press their claims until 1960), the Mohawks finally, in 1995, registered their claim with Indian Affairs’ notoriously slow land claims process. There it languished for another 8 years before Ottawa decided it was a legitimate claim. And there it would be sitting today if Mohawk citizens had not demonstrated in November.
In this respect, the Deseronto matter is exactly the same as the Caledonia Reclamation (as it is called by the Haudenosaunee of Six Nations). It takes the Crown too long to decide to do the right thing. Remember, it took seven years to get to the first Fishing Agreement with the Saugeen Ojibway Nations in the Bruce Peninsula—from the court decision in 1993 that recognized their rights to fish commercially to 2000. Those years saw more than one demonstration (mostly by non-Natives), and one death (a Native), before Ontario and Canada finally came to an agreement.
It was the same story at Ipperwash. Delay and stonewalling finally prompted citizens of Kettle and Stoney Point to reclaim land appropriated by the Canadian military in 1942.
First Nations are looking around and seeing others benefiting from lands they are claiming without consent or compensation or even consultation. They are looking a little closer and seeing development devalue the land—at least from the Native point of view. You can’t hunt in a subdivision or gather medicinal plants in a Wal-Mart and once non-Natives are living or working on disputed land, the courts will not displace them.
The Tyendinaga protesters must be asking themselves what will be left of their land even if it is returned. I know that is what the Six Nations’ Confederacy Council is asking as it looks at the rampant development all along the disputed Haldimand Tract.
The Supreme Court of Canada has ruled (primarily in decisions back in 2004) that the Crown must consult with First Nations about projects, plans and practices that might harm Native rights and claims and way of life. In some cases, where the claims and rights are strong and the likelihood of harm is high, the consent of a First Nation is required. It is no longer enough for the Crown to negotiate land claims; it must now consult with First Nations before planned projects are allowed to harm them.
That’s only fair when you think about it: if you had a claim to a car that someone else was driving around without any compensation to you, you would probably want that person to stop driving your car until the matter was finally settled, either through negotiations or in a court of law. And you would want it settled soon, before the car is wrecked.
Now that I’ve made it, I see that this is a bad analogy, for land to First Nations’ people is more significant than a car—there is no distinction between First Nations people and their traditional lands. They are defined by their lands. Their identity comes from the land.
To imply, as the Sun Times does in its editorial, that people who are moved to protest in order to protect their interests—in this case their very identity—are thereby committing “violent or criminal acts”, does not help us to understand what is really going on. It is especially unhelpful in areas where there are significant Native populations.
Look at it another way. It is now clearly the law of Canada that the Crown must make sure that proposed developments do not harm First Nations’ interests before a land claim is resolved or an aboriginal and treaty right recognized. Is the Crown doing that in Ontario? No. If not, then why should we be surprised when citizens of First Nations remind us that we must live by our own rules?
January 20, 2007
© David McLaren
David McLaren has worked in government, in civil society, in the private sector and with First Nations in Ontario for the past 18 years.