Our Native land
The Supreme Court of Canada, at one fell swoop, has come down on the side of history, written by the victors as always. Mi'kmaq, Malisett and Passamaquoddy First Nations, and in effect all First Nations, have been told that treaty rights to their own land are restricted only to those uses in place at the time of treaty signing. More ominously, the Court has set a high bar to establish title. To do so, Aboriginal nations must prove that:
· they physically occupied the land in question before European colonial governments were established;
· they had exclusive occupation of the land; and
· they did not simply use the land on a seasonal basis for hunting or fishing, allowing other peoples to traverse it or use it at other times of the year.
Some Native leaders, such as Phil Fontaine in today's Globe and Mail, are trying to downplay the crushing significance of this ruling, but crushing it is. It is a ruling founded upon a set of Eurocentric assumptions about land possession and use, and it imposes these assumptions upon Aboriginal people across the country for all time. It is de facto confiscation, and the effect of this ruling on future or on-going land claims will be dire indeed.
What has been re-introduced subversively into the judgement is nothing less than the pernicious concept of terra nullius, by which colonists have rationalized massive land theft around the world. If land is not owned and occupied by a sole owner, it's up for grabs as "uninhabited." The notion that land does not have to be "owned" in this way at all, but might be regarded as a collectively-enjoyed home and life-support for entire peoples, is shrugged aside. If the First Nations want to establish title to their own land, they'll just have to play the white man's legal game, rule changes and all.
Just consider the conditions set by the Court. Native people must prove that they indeed physically occupied the land in question. Why should there not be a reverse onus on the Europeans to show that the land in question was not physically occupied by Aboriginal peoples?
What does "physically occupied" mean, anyway--individual ownership and occupation all year round, or groups of people surviving by following the seasonal rhythms of their environment, occupying territory as their livelihood demands, and sharing that use with other peoples?
What is this "exclusive use?" "Exclusive use" is a white concept, not an Aboriginal one, but even here there are exceptions; they apparently apply, though, only to whites, not to Native people. White people get to time-share, but Native people do not. White people can set up cooperatives, but Native peoples, in effect, cannot. Two or more peoples sharing the same land at the same or at different times will extinguish title. The concept, in its narrowest sense, has been imposed on the original inhabitants of Canada, and is enshrined now in a unanimous Supreme Court of Canada decision, to rationalize a vast land-and-resources grab.