Canada, the Church, the Crown and the Courts

Questions about country have been on our minds lately. What makes a group of people and a piece of land a country? Why the borders? Are they, as Trump says, artificially drawn lines?

Up until recently the experience of living on an Indian reserve for most of my adult life has made me ambivalent about my country. But then, I have seen a very different side of Canada than most people see. My most enduring question has been, “Who gave them (federal government) the power to control every aspect of my life?” And while I am a very white and was once a very blond, blue-eyed women, when I married my Coast Salish husband I became, without my knowledge and without my permission, a Status Indian. Many people have described that as if it were something of a gift that was withheld from women who were more deserving of it. But it didn’t feel like a gift and it wasn’t meant as a gift. That’s a topic for another conversation. For now, I’m thinking about the bigger questions:

Who gave Canada the power over Indigenous people? Who gave Canada the rights to all the land within its borders that, yes, were artificially drawn?

It’s been 55 years since I first started looking for answers to these questions. Yesterday, Maddy, my 22-year-old granddaughter asked, “What the hell, Grandma, who gave the whole damn thing to Canada anyways? And after making such a bloody mess of everything to do with First Nations why do they still get to control it all?”

Blond and blue-eyed like her Grandma, she is also a Registered Status Indian and has had the unusual experience (for someone who looks like her) of living her whole life on an Indian reserve.

Maddy. Here’s what I’m thinking. So far.

Most people aren’t interested in the Doctrine of Discovery or the implications of the idea of terra nullius. Why would they be? These are edicts from three Popes in the 15^th century that justified and set in stone the Europeans’ right to “discover,” “occupy,” and “possess” lands inhabited by Indigenous peoples. A declaration, a few signatures or wax seals and it was done. Done for five centuries. A brilliant move. I am sure that no one, not even the Popes, could have imagined just how brilliant.

With a pen, a few words and paper these Popes declared the land of the entire Americas unoccupied (terra nullius). Free for the taking.

It wasn’t that they didn’t know that there were people in those territories. In fact, Christopher Columbus gave a glowing report of the Indigenous people he met in the West Indies.

“They are neither lazy nor awkward; but, on the contrary, are of an excellent and acute understanding. Those who have sailed these seas give excellent accounts of everything…”

Columbus even reported that the “Indians” would have been easy converts.

So how did the Popes pull off the “empty land” premise for the takeover? The Romans knew how to militarily take over land. But the Popes were smarter than that. They used words. Just words on a few pieces of paper and the Catholic Church, on behalf of its followers, conducted the largest land takeover in the history of humankind. Words wiped out entire races of people.

The land was empty because the people who occupied it were declared to be not people. Done. Easy. Mind-blowing magic.

By simply declaring that the inhabitants were non-humans these invaders could then proclaim that the exceptional lands they had “discovered” were uninhabited. Within a hundred years the European claim on North America was helped along by plagues and wars that decimated the population by millions. Millions of “excellent” people who had “acute understanding.” The devastation left only a tiny fraction of the earlier number—the largest and most effective genocide the world has ever known.

We know the rest of the story. European North Americans believed the non-human story and developed a deep loathing of Indigenous people. So deep is this loathing that it has survived to this day. So deep is this loathing that for much of the 20^th century (and before and after) many Indigenous people believed the same lies about their people and suffered from an equally deep self-loathing.

I call it Canada’s special racism. It’s different from the racism that is applied generally to brown-skinned people. When I asked Uncle Joac (my black-Brazilian adopted son) what it was like to be black boy in a very white high school—were the kids racist? “Sort of,” he said. “But they don’t treat me that bad. Nothing like how bad they treat First Nations kids.”

Why?

It’s not that Canadians still believe that Indians are not human. We’ve progressed beyond that. But our country has structurally embedded in our legal and social systems the belief that Indians are incapable, inadequate and generally unable to look after themselves. Children. Forever relegated to wards of the courts. Not not-human. Lower humans.

Then you ask, “Aren’t there cases in court where Canada still has to prove that it has a legitimate claim to the land. Wasn’t that settled? The immigrants obviously won? Maybe not fair and square. But pretty well every Canadian other than Indigenous people think, ‘It was done. It’s over now. This is the way it is, so this must be the way it was meant to be.’”

Yes. There are cases like Tsilhquot’in vs BC where the Supreme Court recognized the First Nation’s title to land in their territory. No. The land questions have not been settled. The Indian land thing just won’t go away. There have been some uncomfortable developments lately that are profoundly unsettling to comfortable Canadian settlers who take time to think about it.

1. In 2023 the Vatican repudiated the Doctrine of Discovery. They declared that Indians were, in fact, humans. Therefore, the land was not “terra nullius.” The very basis for Canadian sovereignty is a lie.  Perhaps people can say, “It’s too late now. What difference does it make?” But it’s a lie nonetheless.
2. Canadian governments have stubbornly refused to formally repudiate the doctrines. However, reconciliation initiatives recognize that Indigenous peoples have a sovereign right to their territories and that European claims to the land are unjust. A bit of a workaround, but a worthwhile recognition nonetheless.
3. The United Nations Declaration on the Rights of Indigenous People (UNDRIP) contradicts the Doctrine of Discovery by asserting the right of Indigenous peoples to free, prior, and informed consent before any decisions that may affect their rights, lands, or territories. Not exactly giving the land back, but unsettling the power structure nonetheless.
4. Canadian courts continue to use the Doctrine of Discovery to legitimate Crown claims, yet increasingly those claims are being challenged ie, the UN states: International human rights law … demand (s) that States rectify past wrongs caused by such doctrines, including the violation of the land rights of indigenous peoples, through law and policy reform, restitution and other forms of redress for the violation of their land rights. Not yet legally disrupting Canada’s claim to the land, but unnerving Canada’s certainty nonetheless.

Here, in W̱SÁNEĆ territory, your territory, Maddy, arguments about land seem almost pointless. Every square foot of W̱SÁNEĆ territory has been settled either with fee simple ownership, parks or Crown land that is burdened with resource extraction agreements.

The settler population tends to accept that Crown land can be rented to corporations for resources. They are also committed to the idea that parkland belongs to and is for the benefit of “everyone” for pleasure and recreation. And they are adamant that fee simple land is indisputably private. So, as you can see, they’ve got pretty much all the land on lockdown.

Then there is Indian reserve land, which many Canadians believe, contrary to what we know to be true, was “given” to the Indians by the Crown. And most Canadians think that should be the end of the story.

However, as you have just heard, the Church, the Crown and the Courts have all stated, in different ways, that Indians have sovereign rights to their territories. How can that be if Canada is a sovereign nation? We are finding out. First Nations’ sovereign rights are increasingly coming face-to-face with Canada’s sovereign right to all the land within its borders.

Many Canadian citizens are beginning to understand what that means. While there is no threat of an invasion, a takeover or disruption to fee simple ownership, UNDRIP and reconciliation initiatives will result in fundamental change. Within your lifetime, Maddy, you might see co-management of some parks and crown land. You can expect to see legitimate streams of income to First Nations from revenues generated in their territories. We are already seeing more meaningful government/First Nations consultation and maybe, collaboration. Hopefully, these changes will continue in a good way, honour the natural environment and not just be a way in for more resource extraction. Those are your challenges, my girl.

Your Grandpa and Grandma have worked on making change for most of their lives. Your mom and uncles and aunties are doing the same thing. You and your generation will keep up the good work. I know you will. I won’t live long enough to see the “outcomes.” But I have already seen incredible shifts. For the better. It’s complicated. Many people will resist. most people don’t get it and don’t see the value in answering our questions. But keep asking them, Maddy. Don’t despair.