ARTSSCI 4CI3: Diversity and Human Rights Inquiry
In this paper, I will investigate how Canadian legal institutions function to serve the interests of the settler colonial state through the dispossession of Indigenous peoples. This investigation will be facilitated through an examination of the court proceedings of 1492 Land Back Lane. In this contemporary example, land defenders are being criminalized by Canadian courts for re-occupying their unceded land in Caledonia to protect it from a proposed housing development. Here we see an example of oppression, and therefore, it is useful to draw on Sensoy & DiAngelo’s (2017) definition of oppression: the prejudice and discrimination of one social group against another backed by legal authority and historical, social and institutional power (p. 84). In this case, the oppressors are the settlers, and the oppressed are Indigenous peoples. Focusing on legal authority, I seek to ultimately demonstrate how anti-Indigeneity, or colonial ideals, are embedded within the Canadian legal system.
In order to do this, I will begin by examining key historical legal documents, namely, the Constitution of Canada and the Indian Act, with a focus on the settler colonial ideology of paternalism underlying them. I will then turn to the court proceedings of 1492 Land Back Lane in order to establish their problematic and paternalistic nature and ground them within existing case law on Indigenous land rights. Utilizing this example, I will demonstrate how Canadian courts can serve to perpetuate settler colonialism and land dispossession, often through the legal mechanism of injunctions. Ultimately, I will demonstrate how the very concept of ‘land back’ is incompatible with Canadian law.
To begin, I will explore to what extent Indigenous dispossession has been embedded within the highest level of Canadian law: the Canadian Constitution. Kallen (2010) notes that, under the provisions of section 94(24) of the Constitution Act, “the Parliament of Canada [acquired] constitutional jurisdiction to enact laws concerning Indians and lands reserved for Indians,” rendering Indigenous peoples as “virtual wards of the state” (p. 277). In this way, the ‘inferior’ status assigned to Indigenous nations by the Canadian government was cemented in legislation. Along similar lines, while the Royal Proclamation of 1763 (enshrined in Section 25 of the Constitution Act) does explicitly acknowledge that Indigenous title exists and has existed, it also consolidates the “ward” status of Indigenous peoples by asserting that “Indians” live on “our Dominions, and Territories” [para. 6, emphasis added]. Such an assertion places Indigenous societies under the common law of the colonial state (Pasternak, 2014). Furthermore, the Royal Proclamation sets out rules that make it “illegal for Indigenous peoples to sell land to third parties unless they are first ceded to the Crown” (Pasternak et al., 2019, p. 17)—this clearly serves to establish the Crown’s monopoly over Indigenous lands.
That being said, in 1982, Aboriginal and treaty rights were recognized as constitutional; section 35(1) of the Constitution Act recognized and affirmed “the existing aboriginal and treaty rights of the aboriginal peoples of Canada.” Unfortunately, the nature and content of these collective rights have not been elaborated upon, and ultimately, it has been left up to the courts to decide how section 35 would be applied (Pasternak et al., 2019). This has produced mixed results, as we will see later when we turn to the Delgamuukw decision. It is also worth noting that the constitutional amendment process, whereby the rights of Indigenous peoples were recognized, was tumultuous. Notably, after four constitutional conferences, convened for the sole purpose of defining Aboriginal rights, these rights remain undefined (Kallen, 2010). From this, one can conclude that the Canadian government is hesitant to constitutionally recognize Indigenous rights. If the government must recognize rights, it will do so only so long as they are undefined, and therefore, state responsibilities and protections to be afforded are unclear. From the above, we can also conclude that there is a troubling contradiction in the Canadian Constitution: while section 35(1) protects Indigenous and treaty rights, section 25 enshrines the Royal Proclamation which consolidates the Crown’s authority and monopoly over Indigenous land (Pasternak, 2014).
To wrap up our discussion of historical documents, it is important to also consider the Indian Act: a strong legal instrument of colonization which has served to further cement in legislation the ‘inferior’ status accorded to Indigenous peoples by the colonial government (Kallen, 2010). Kallen (2010) argues that Canada’s colonial policy of cultural genocide was most starkly embodied “by the paternalistic conditions for the treatment of Status Indians set forth under the Indian Act” (p. 191). Under paternalism, the dominant group takes on the position of ‘father,’ or ‘absolute ruler’ over his ‘subhuman’ subjects, who are positioned as permanent children and denied the right to self-determination (Kallen, 2010). Paternalism is rationalized through the ideology of white supremacy and has historically served as the rhetoric behind almost all government policy towards Indigenous peoples (Kallen, 2010). This is exhibited in section 94(24) of the Canadian Constitution and the Royal Proclamation—both serve to reiterate the status of Indigenous peoples as ‘wards’ in their own lands. Paternalism continues to underpin present-day violations of the collective land claims held by Indigenous peoples.
A clear example of paternalism currently playing out is in the court proceedings of 1492 Land Back Lane, titled Foxgate Developments v Doe et al. To briefly summarize the situation, since July 19, 2020, Haudenosaunee Land Defenders have been peacefully occupying a portion of their unceded territory along the Haldimand Tract in Caledonia, Ontario (Antonacci, 2020). The Haldimand Tract was granted to the Haudenosaunee in the 1784 Haldimand Proclamation, in recognition of their allyship with the British during the American Revolution (Filice, 2020). However, in 2015, the Canadian government – namely Haldimand County – unlawfully sold part of the land to Foxgate Developments: this corporation intends to build a housing development on the site (Robinson & Shaker, 2020). The site in question has since been re-occupied by land defenders and renamed 1492 Land Back Lane.
With the necessary context established, we can return to a discussion of the court proceedings and establish their problematic and paternalistic nature. In Foxgate Developments v Doe et al, Justice Harper’s blatant disregard for Indigenous legal orders is clear: he refuses to allow Skyler Williams, a spokesperson for 1492 Land Back Lane, to speak. Mr. Williams was charged with contempt during the hearing on October 9th, where Justice Harper issued an ultimatum to him, stating that unless all land defenders vacate the land, he would not be allowed to participate in the hearing on October 22nd (Foxgate Developments et al., 2020a). Not only was this ultimatum impossible to comply with, given that—as Mr. Williams repeatedly stated—had no control or power over the actions of other people, it was also constitutionally flawed. This is because, under the Constitution, all Canadians have the “right to make full answer and defence” (Canadian Charter, 1982, s 7(3)).
Despite this constitutional right, Harper ruled Mr. Williams to be in contempt, asserting that he will "not allow any further participation by Mr. Williams . . . due to abuse of this court's process. Any material pleadings he has filed – which I have not seen [emphasis added] . . . will be struck" (Forester, 2020). By openly admitting that he had not read any of Mr. Williams submitted materials, Justice Harper clearly demonstrates bias. Further evidence of bias was exhibited throughout the trial—prior to the above declaration of contempt, Justice Harper constantly interrupted Mr. Williams, but did not allow Mr. Williams to correct false information being presented to the court (1492 Windsor Law Coalition, 2020). Meanwhile, in a clear display of favouritism, Justice Harper allowed counsel for Foxgate and Haldimand to make multiple corrections and allowed them to make their full statement uninterrupted (1492 Windsor Law Coalition, 2020). Furthermore, displaying an abuse of power, Justice Harper muted Mr. Williams on Zoom, which is the courtroom equivalent of physically gagging him—an act that is unconstitutional and unacceptable (1492 Windsor Law Coalition, 2020).
Indeed, throughout the trial, Justice Harper seemed preoccupied with making an example out of Williams for his “open defiance of both the process and of the orders of this Court” (Foxgate Developments Inc. v. Doe et al, 2020b, para. 6). Embodying the colonial patriarch, Harper refused to attempt to understand the historical reasons for why Williams would assert, “I am a Haudenosaunee man who does not belong before this colonial court” (Foxgate Developments Inc. v. Doe et al, 2020b, para. 111). Instead, he proclaimed Williams’ statement to be evidence of an abuse of process. Furthermore, embodying a fundamental ignorance, Justice Harper, along with counsel for Foxgate and Haldimand, repeatedly referred to land defenders as "occupying other's lands" and "trespassing" (1492 Windsor Law Coalition, 2020). Such claims reflect colonial values and lie in a denial of the reality that the disputed territory is in fact unceded and belongs to the Haudenosaunee people.
Given the actions and statements made by Justice Harper during the court proceedings, we can see Harper as personifying the colonial father that resides over his unruly children. During the trial, Harper was more preoccupied with asserting the supremacy of Canadian law, rather than focusing on reconciliation and obligations owed to Indigenous peoples given Canada’s colonial history.
Indeed, indicating a pattern of paternalism in court proceedings, we see a similar case in Henco Industries Ltd v Haudenosaunee Six Nations Confederacy (2006). The judge in this case, named Marshall J, was similarly preoccupied with contempt and refused to allow those charged with contempt to be heard. That being said, Marshall J was ultimately deemed to have engaged in an abuse of process by The Ontario Court of Appeal (ONCA) for denying procedural fairness to persons accused of contempt.
In their closing comments of the Henco case, the ONCA acknowledged that the rule of law requires a justice system that can ensure court orders are enforced and the court process is respected. However, they asserted that by focusing on vindicating the court's authority through the use of the contempt charge, Marshall J ultimately neglected to consider other important dimensions of the rule of law: namely, “respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings” (Henco Industries Limited v. Haudenosaunee Six Nations Confederacy Council, 2006, para. 142). There are clear parallels to this case and that of the Land Back Lane court proceedings—Justice Harper did not prioritize reconciliation, land defenders were not granted procedural fairness, and the Haldimand Proclamation was not adequately considered.
The ONCA also emphasized the importance of considering other factors beyond the obligation to enforce the law, considerations which include: “Aboriginal and treaty rights, constitutional rights... and importantly, the government's obligation to bring about the reconciliation of Aboriginal and non-Aboriginal peoples through negotiation” (Henco Industries Limited v. Haudenosaunee Six Nations Confederacy Council, 2006, para. 117). With these considerations in mind, the ONCA asserted that hasty enforcement and prosecution of violations of law are not always the best course of action. Finally, they pointed to the importance of prioritizing negotiation over litigation when reconciling state and Indigenous interests, citing the 2004 case of Haida Nation v British Columbia (Ministry of Forests).
A case of particular relevance to the court proceedings of 1492 Land Back Lane, Haida Nation v British Columbia (Ministry of Forests) established that the Crown has a duty to consult with First Nations when their “established or asserted constitutional or treaty rights may be impacted by government actions” (Pasternak et al., 2019, p.19). Indeed, the duty to consult and accommodate is a constitutional right protected under section 35 (Pasternak et al., 2019).
That being said, in Foxgate Developments v Doe et al, Justice Harper asserted that, because Foxgate Developments is a private corporation, they had no legal duty to consult any Indigenous groups. He also claimed that despite there being no legal duty to consult, there was “extensive consultation and communication with the Six Nations and other Indigenous communities'' by Foxgate Developments (Foxgate Developments Inc. v. Doe et al, 2020, para. 109). What he neglected to mention was that, while the public consultations were poorly attended, the majority of Six Nations people in attendance opposed any type of development on the property (Dockstader, 2020). Furthermore, it is important to recall the context which Justice Harper is neglecting, namely that Foxgate Developments acquired the land in 2015 through the Canadian government, which sold the unceded territory unlawfully. All this exhibits the limits of domestic Canadian law in protecting Indigenous land. While Haida Nation v British Columbia (Ministry of Forests) established that the Crown has a duty to consult, this duty did not extend to private corporations.
Finally, to wrap up our grounding of Foxgate Developments v Doe et al in existing case law, it is essential that we discuss Delgamuukw v British Columbia, whereby the test for determining if Indigenous title exists was established. In Delgamuukw v British Columbia, the Supreme Court of Canada found that Aboriginal title was a right entrenched in section 35 of the Constitution (Pasternak, 2014). More importantly, we see the first acknowledgement of Indigenous people’s collective ownership of the land—that is, the Supreme Court of Canada recognized the nation as “the collective title and rights-holder, not the band council” (Pasternak et al., 2019, p. 30). This has important implications for 1492 Land Back Lane. It implies that—regardless of alleged support for the development at one point in time from The Six Nations Elected Council ("1492 Land Back Lane spokesperson," 2020)—Indigenous nations are ultimately the proper title holders. Thus, they should be the ones making the decisions on any issues affecting their territory (Pasternak et al., 2019). Returning to Foxgate Developments v Doe et al, even under settler law, Justice Harper’s verdict is ultimately difficult to justify. That being said, this case points to a common trend of Canadian courts being reluctant to acknowledge collective land rights held at the level of the nation (Pasternak et al., 2019).
Importantly, there are also real limits to the progress made in the Delgamuukw decision. While it did establish a test for determining if Indigenous title exists, even in cases where “Indigenous nations [had] proven in court the continuity of their occupation, use, and unceded title from pre-contact to the present” (Pasternak et al., 2019, p. 24), there remains no legal avenue for Indigenous peoples to reclaim full jurisdiction over their lands. From this, one can tentatively conclude that the very notion of “land back” is incompatible with Canadian domestic law.
Another piece of evidence which supports this notion of incompatibility can be found in the court proceedings of Foxgate Developments v Doe et al. Ultimately, the case culminated with Justice Harper granting a permanent injunction against the 1492 Land Defenders and ordering Skyler Williams to pay $168,163.85 by way of legal costs to Foxgate Developments and Haldimand County. By criminalizing land defenders for simply asserting their rights, this case demonstrates the ways in which Canadian courts continue to enable ongoing colonization in Canada. It is particularly notable that this continued oppression is occurring through an injunction.
In simple terms, an injunction is “a legal tool that restrains someone from doing something” (Pasternak et al., 2019, p. 30). Over the last 20 years, there has been a dramatic increase in the number of injunctions filed (Yellowhead Institute, 2019). This may be a reflection of how the legal tools of oppression wielded against Indigenous peoples have evolved in response to section 35 and the rise of Aboriginal rights law. While in theory injunctions can be used by Indigenous peoples and corporations alike, in reality they are often used to “override the lack of consent by Indigenous peoples to development on their lands,” and to move land defenders off their land by force (Pasternak et al., 2019, p. 30). Yellowhead Research shows that 76 percent of injunctions sought by a corporation against an Indigenous land claim were granted, while in comparison, 81 percent of injunctions filed by First Nations (the term used in the research) against corporations were denied (Pasternak et al., 2019). Perhaps most revealing is that 82 percent of injunctions filed by First Nations against the Canadian government were denied (Pasternak et al., 2019). In this way, it is clear that injunctions often function as a weapon used to deny Indigenous sovereignty.
Ultimately, by granting an injunction, it seems that the Foxgate Developments v Doe et al. case is part of a larger trend. After all, a similar verdict was reached in Coastal GasLink Pipeline Ltd. v Huson, where Coastal GasLink Pipeline Limited was granted an injunction against the Unist’ot’en clan. There are many more cases that indicate a pattern of Canadian courts granting injunctions which enable governments and corporations to dispossess Indigenous peoples of their land, ultimately serving to perpetuate settler colonialism.
Indeed, no resource is more fundamental to the existence of Indigenous peoples than their land. This fact is acknowledged in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which explicitly states, "Indigenous peoples shall not be forcibly removed from their lands or territories" (Article 10), and stresses the necessity of “free, prior, and informed consent” (Article 10). Considering that Indigenous Affairs Minister Carolyn Bennett declared in 2016 that the Canadian government was “a full supporter of the declaration, without qualification” (Fontaine, 2016), it is absolutely unacceptable that the government has yet to enact legislation which give UNDRIP principles the force of law (Robinson & Shaker, 2020). This lack of legislation enables the Canadian settler state to continue to dispossess Indigenous people of their lands, a trend that will likely continue beyond 1492 Land Back Lane unless major changes take place.
To conclude, the Canadian government refuses to recognize Indigenous peoples as self-determining nations. Indigenous land dispossession is embedded within the Canadian Constitution and the Indian Act, and it continues to be perpetuated today through Canadian courts—primarily by way of injunction. Through an in-depth analysis of the court proceedings of 1492 Land Back Lane, I sought to establish the problematic and paternalistic nature of the Canadian legal system. Furthermore, by grounding the proceedings within existing case law, I sought to demonstrate that Foxgate Developments v Doe et al. is far from the exception, but rather the rule, indicating the tendency of Canadian courts to enable land theft and further settler colonialism. If Canada truly believes in reconciliation, it is essential that the government make major changes to the legal system. Further, the colonial ideologies underpinning major legal documents may signify the necessity of nothing short of a revolution to ensure Indigenous life, liberty and land is respected. Despite the court ruling, 1492 Land Back Lane acts as a site of Indigenous-led revolution, serving as the beginning of a new relationship between the settler colonial state of Canada and Indigenous peoples.
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