We wish to conclude this text by tying together Canada’s history with that of two relevant UNDRIP articles.
Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return. (UN General Assembly, 2007)
This article may have the most heartbreaking rationale for inclusion in UNDRIP.
In the mid-1700s, pre–American Revolution, settlers engaged with Indigenous groups in bad-faith private dealings and later called upon their colonial governments to enforce their property claims. The Royal Proclamation of 1763 (pre–American Revolution) was issued by King George III in response to this situation. This document had the effect of reserving western lands for Indigenous groups, which settlers were unhappy about. Thirteen years after its release, the Royal Proclamation became one of the enumerated reasons for rebellion in Thomas Jefferson’s Declaration of Independence (Paul, 2018).
In America, the nadir of this relationship was the forcible removal of Cherokee peoples, infamously dubbed the “Trail of Tears.” The state of Georgia ignored the Supreme Court of the United States’ ruling in Worcester v. Georgia (1832), which stated that Georgia could not impose its laws on Cherokee territory. President Andrew Jackson refused to enforce this ruling. In 1838, the Cherokee were forcibly removed from their territory: 12,000 people were marched nearly 1,300 kilometres, and of those people, 4,000 died on the journey (National Park Service, 2020).
In Canada, expansion west was marked not by private dealings by settlers, but by a series of treaties created in the mid-1800s called the Numbered Treaties, which were not without controversy. Many groups claim today that the Numbered Treaties were not a treaty for the sale of land, as the Canadian government argues, but simply a “right-of-way” agreement for the sharing of land.
These Numbered Treaties did not extend to most of British Columbia. Indigenous groups argue that these lands were never ceded to the Canadian government — and with good reason. The Royal Proclamation of 1763, which is still law, states that only the Crown has the authority to purchase lands from Indigenous groups. As most of the land was never purchased by any treaty, occupation is illegal.
Aside from the wrongful occupation of territory, there are modern instances of UNDRIP Article 10 being infringed in British Columbia. This includes forcible separation of children from their parents via the residential school system and the relocation in the 1950s of the Cheslatta T’En First Nation (Windsor & Mcvey, 2005). Their territory was flooded to build Kenney Dam, a project which still powers the Rio Tinto aluminum smelter located in Kitimat, B.C. (Rio Tinto, 2010).
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. (UN General Assembly, 2007)
Although not the direct object of consideration by Canadian courts, the substantive content of Article 19 of UNDRIP has been contested for decades.
In 1984, the Gitxsan and Wet’suwet’en claimed 58,000 square kilometres of land in Northwest B.C., as they have been continuously occupying the territory since before recorded human history. Damages were sought for resources removed and territory taken by private interests (such as land ownership in communities like Smithers and Hazelton). This resource and territory extraction were done with no consultation by the Crown.
The territory and damages claim made its way through the courts until finally coming to a head 13 years later in the landmark 1997 Supreme Court of Canada decision of Delgamuukw v. British Columbia. There, the Supreme Court established the “Duty to Consult.” This duty scales with the level of intrusion into the Indigenous group’s territory. Further, the Supreme Court of Canada decision says, “In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation.”
In 1983, a logging permit was granted on Tsilhqot’in territory in central British Columbia. No consultation with the Nation was done. In 2014, the Tsilhqot’in had their day in the Supreme Court of Canada in the case of Tsilhqot’in Nation v. British Columbia. The court declared that “British Columbia breached its duty to consult owed to the Tsilhqot’in.” At the same time, the court also created a framework with which the Crown can override title to Aboriginal lands if a “compelling and substantial public purpose” exists.
This is not the end of the story. Despite the clear language in Delgamuukw, there has yet to be a single instance of a project requiring absolute consent from Indigenous groups, as the Crown always has the out of “justifying” their infringement. The authors believe that the ruling of Tsilhqot’in makes that declaration by any court increasingly unlikely. Further, the Supreme Court of Canada did not definitively decide anything related to Gitxsan and Wet’suwet’en territory. Delgamuukw was sent for a retrial — a process which has not yet been started. Even though this series of events is almost 40 years old, the Gitxsan and Wet’suwet’en still await their justice.
We believe there is reason for optimism. On the ground, funding has increased for projects at Coast Mountain College and other institutions to Indigenize our curriculum. This text is an outcome of such a project. In 2021, just before this text was published, the federal government increased funding to implement the Truth and Reconciliation Commission’s Calls to Action (APTN News, 2021). In recent years, more people have demonstrated the will to combat systemic racism and atone for the sins of our country’s past so that our children may see a better world. Despite the tales of heartbreak, legal battles, and breaches of trust contained in this text, we would be remiss if the reader left feeling defeated. Rather, should these favourable macro trends continue and individuals do their part to carry out the Calls to Action, a better Canada can be built for Indigenous and non-Indigenous people alike.