Canada's Comprehensive Claims Policy is out of date and ignores the last 15 years of the law's evolution, so say members of the Indigenous Bar Association (IBA), who stated it as a fact in a public forum on Oct. 19 during the IBA's annual meeting.
Dave Nahwegahbow, succeeded this year as IBA president by Metis lawyer Mark Stevenson, then went further and said he believes the government is intentionally ignoring the law to further its political agenda and continue the exclusion of Native people from the mainstream.
"You need to look at what the interests are," he said. "You know the old saying, 'Follow the money.' Until you understand what the interests are, you're not going to persuade the government to change the policy."
Nahwegahbow said old "ethnocentric" attitudes towards Native people, based on outdated and discredited ideas, still persist in the minds of people who work for the establishment. Those attitudes allow sound legal and political arguments put forward by Native people to be ignored, something that wouldn't be tolerated in any other area of Canadian society.
"I say ethnocentric but I really mean racist. Nobody wants to use that word in Canada. But the fact is that's what it is. And it's linked to the old notion of terra nullius and it's ingrained and institutionalized. You just can't change it that easily," he said.
Terra nullius is a Latin term that means, "empty land." It represents a doctrine used as legal justification for colonial powers to claim occupied land. In modern times it is seen as a false doctrine by most legal scholars.
Elmer Derrick, a respected Gitxsan negotiator who played a role in the Delgamuukw case for his people, had earlier told the audience of a Gitxsan word used to describe people who won't respond to reason.
"The Crown continues to be smug with its mandates on treaty matters," Derrick said. "Somehow the Crown is more inchasw than the dumbest dog around. Inchasw is the term we apply to beings that cannot learn."
Nahwegahbow obviously found the Gitxsan term to be useful.
"In Australia, with the Mabo decision, the court explicitly rejected the concept of terra nullius. In the Delgamuukw decision they came up with this notion of reconciliation. All as a way of trying intellectually to address this fabrication. In the Mabo case, it wasn't completely effective because the public didn't buy it, politics didn't buy it. And it's the same thing with Delgamuukw. The court said we all live together here, we've got to find a way of reconciling. Yet the federal government is still not attempting to reconcile. You just can't . . . I'm trying to talk some sense to them and . . . it's even worse than talking to a dumb dog. You may as well be talking to a piece of wood. It's so frustrating," he said.
But he said he knows the real reason for the Crown's stubbornness.
"If the federal Crown was to acknowledge Aboriginal title over Aboriginal title land, unsurrendered treaty land, it would be tantamount to acknowledging that [Native people] have jurisdiction," he said. "The provinces would have a fit. They'd never accept it. That is a serious problem. I've discussed this with federal officials and they've acknowledged that it is a problem. It's all about liability. If they were to recognize Aboriginal title they'd be admitting liability. That would have a major effect on the federal treasury."
The biggest fight Aboriginal people will face as they negotiate just settlements to legitimate land claims is that nobody wants to give up what they have, even if it was acquired by dubious means, Nahwegahbow said.
"The resources in this country are fully allocated. There's really no room to negotiate there. All the lands are allocated. So it suits the government not to recognize Aboriginal title. We can scream about the policy until we're blue in the face, about how the government is acting illegally. They're not going to change the law."
The next panellist agreed.
"If the government won' come to the table because compensation is an issue, then we'd better deal with it," Chief Art Manuel said.
There are a couple of schools of thought on how to "deal with it." Whereas Nahwegahbow seemed to suggest that it's going to take a lot of litigation and dozens of court wins to paint the government into a corner and make the government behave according to its own law, one of Canada's most activist chiefs suggested that action inside a courtroom isn't the only action available.
Manuel, a key figure in the Sun Peaks ski resort occupation that has brought Shuswap people into conflict with authority figures in recent months, has urged his people to go out on their traditional lands and use them. Canadian authorities, refusing to consider the concept of Aboriginal title, call this trespassing.
"Issuing trespass notices against Indians, it's kind of crazy," Manuel said.
Speaking on Oct. 19, Manuel said a deadline for vacating the Sun Peaks area was approaching.
"If they decide on [Oct. 24] to remove our people based on trespass, B.C. escalates it to the international level by removing our people from their land by use of force," he said.
One of the actions prohibited by the United Nations convention against genocide is forced removal of a people from their homeland. Manuel clearly is ready to accuse the provincial government of a genocidal act in the international arena.
Derrick provided a lesson in "Gitxsan basics."
"The Supreme Court justices [in Delgamuukw] also instructed us to reconcile our pre-existence with Crown title. We do not yet know the entire scope of the reconciliation process. We know that it does not mean business as usual. If the Supreme Court of Canada wanted us to reconcile within the current federal claims policy and mandates, it probably would have said so explicitly," he said.
Derrick's people have come up with a creative way of dealing with often-sticky points of jurisdiction. They have proposed that, rather than argue over who has he ultimate authority over Gitxsan lands, an area where the Crown always digs in its heels, they include all possible scenarios for dealing with disputes in the treaty and leave aside the bickering over jurisdiction.
"If the three parties structured their treaty in the form of a trust, rather than in the form of a commercial contract, as are most treaties, their respective sources of authority would not have to be identified. Each party would settle whatever legal land jurisdiction it may have into a land trust. These areas of jurisdiction need not be specified as long as the parties agreed that, within Gitxsan territory, none of them had any residual jurisdiction outside of the treaty trust. The treaty would be the trust deed and would appoint the trustees, identify the beneficiaries and set the terms of the trust," he explained.
Derrick said the attitude of federal and provincial negotiators had some Gitxsan leaders ready to go back to court because they feel the court will not look kindly on the way the other parties have responded to the court's instruction to work together.
IBA president Mark Stevenson noted that the claims policy is very seriously out of date legally.
"The last time the policy was changed was 1987," he said, noting that was before such major Supreme Court of Canada decisions as Sparrow, Delgamuukw, Gladstone, Guerin and others. "None of that law had been decided then and yet we're still stuck with the same policy.
Listing the changes the post-1987 court decisions have made to Canadian law, he noted several "resounding 'no's' when you ask if the policy follows what the law says."
Stevenson, like many others, questioned if the government was acting in good faith in claim negotiations.