RCAP and a Landmark Court Decision
IN ANY POLITICAL MOVEMENT, there are those who insist on their maximum demands and those who are willing to settle for less. To the frustration of the most dedicated activists, movements generally form a consensus around the weakest position. Given this dynamic, one way to advance a cause is to somehow raise the minimum. The publication of the Royal Commission on Aboriginal Peoples report helped our movement do just that. It provided an extensive, thoughtful look at where Aboriginal peoples were in Canada and a detailed historical analysis of how we had arrived at this point. It was then—and remains today—a document that virtually the whole Indigenous movement can rally around.
The Royal Commission was created in the wake of the Oka Crisis in 1990, with a broad mandate “to study the evolution of the relationship between Aboriginal peoples, the government of Canada and Canadian society as a whole.”31 The co-chairs were Georges Erasmus, a former national chief, and Justice René Dussault of the Quebec Appeals Court. In its extensive research, RCAP commissioned dozens of studies, travelled to close to a hundred communities, and held more than 175 days of public hearings. When the report was finally released, it contained 440 recommendations and provided the most detailed analysis of relations between Indigenous peoples and Canadians that the country had ever seen.
In two areas in particular, RCAP went to the heart of our demands. First, it recognized the need for governments to disavow the doctrine of discovery. Second, it described the true source of the authority of our Indigenous governments.
The first of these, the repudiation of the doctrine of discovery, was among the Commission’s first recommendations. The RCAP authors went on to demand that governments issue what would amount to a new Royal Proclamation recognizing our Aboriginal title and rights. In section 1.16, they urge federal, provincial, and territorial governments to begin the process of renewal by “acknowledging that concepts such as terra nullius and the doctrine of discovery are factually, legally and morally wrong.” The governments should declare “that such concepts no longer form part of law making or policy development” and should commit “themselves to renewal of the federation through consensual means to overcome the historical legacy of these concepts, which are impediments to Aboriginal people assuming their rightful place in the Canadian federation.”32
It is difficult to overestimate the importance of this move. As we have seen, the doctrine of discovery, a concept from another era, remains the legal justification for the colonial occupation of our lands and our nations. As long as Canada bases its existence on that doctrine, it is hard to characterize it as anything other than a racist state where one race has been given the right to subjugate and confiscate the lands of another. For government to repudiate this doctrine and issue a new one recognizing the reality of the lands we all occupy would benefit not only us, but also Canada. This step would allow Canada to become a moral country, facing its history and the current reality of the peoples within its borders, instead of hiding behind an internationally discredited racist doctrine.
On the second point, the true source of our governments’ authority, the RCAP report set out an important consensus position on the inherent right of Indigenous peoples to govern ourselves. RCAP looked to international law and practices to clearly view our place within the Canadian political space. But equally important, it looked at the rights that flow directly to us from Section 35 of Canada’s Constitution. In his “Address for the Launch of the Report of the Royal Commission on Aboriginal Peoples,” co-chair René Dussault clearly stated: “The right of self-determination finds its foundation in emerging norms of international law and basic principles of public morality. By virtue of this right, Aboriginal peoples are entitled to negotiate freely the terms of their relationship with Canada and to establish governmental structures that they consider appropriate for their needs.”
Among RCAP’s recommendations are the following:
7. Aboriginal peoples possess the inherent right of self-government within Canada as a matter of Canadian constitutional law…. It stems from the original status of Aboriginal peoples as independent and sovereign nations in the territories they occupied, as this status was recognized and given effect in the numerous treaties, alliances and other relations maintained with the incoming French and British Crowns.
8. The inherent right of Aboriginal self-government is recognized and affirmed in section 35 of the Constitution Act, 1982, as an Aboriginal and treaty-protected right. The inherent right is thus entrenched in the Canadian constitution, providing a basis for Aboriginal governments to function as one of three distinct orders of government in Canada.33
In simply following the guidance of these two RCAP sections—on the doctrine of discovery and the inherent right to self-government—Canada could have embarked on a dramatic new era in its relations with our peoples, where Canada and Indigenous peoples look at one another not as colonial power versus wards of the state, but as peoples with historical ties and a shared space. We could then have embarked together on a search for a formula for coexistence that meets each other’s needs. That was, and remains, the promise of the Royal Commission. We are still waiting for Canada to show up for these talks.
By the time the RCAP report was published, the Liberals were back in power and there was, unfortunately, little hope that they would follow through with the Commission’s recommendations. A few years before that, there had been a glimmer of hope that the party was turning over a new leaf. In opposition in the late 1980s, the Liberals had indicated they were prepared to make a major shift in their Indigenous policy. In fact, the reform movement within the party was so strong that it attracted a number of key Indian strategists into an Aboriginal Commission to rewrite the party’s Aboriginal program.
Among those lured into the Liberal tent were the Anishinabe lawyer David Nahwegahbow, the past president of the Native Women’s Association, Marilyn Buffalo, and my friend Russell Diabo. All three of them, who are among the most principled fighters for Indigenous sovereignty I know, now consider this foray into the Liberal party a bit of an embarrassment. But I think they would agree to my using it as a kind of cautionary tale for those in our movement who might be considering entering party politics to make changes from the inside.
Working within the existing system is a gambit that our people have attempted a number of times with the same result. Either they become co-opted by the parties they are attempting to change, or they quit as soon as they become aware that real change within the political parties is a mirage. In this case, the foray ended with Nahwegahbow, Buffalo, and Diabo sitting with National Chief Ovide Mercredi in a press conference and literally burning the Liberal Aboriginal policy book that they had helped to write.
David Nahwegahbow has given an account of their experience in an article entitled “Chrétien’s Legacy: Betrayal and Broken Promises.”34 I will summarize it here because it points out the pitfalls so well.
David first became involved with the Liberals in the late 1980s when the party was in opposition. It had no Aboriginal policy to speak of and no real structure for the organized involvement of Indigenous peoples. He was recruited as the new co-chair, along with Marilyn Buffalo, of a small Native caucus. In Calgary in 1990, at the convention at which Jean Chrétien was elected leader, Nahwegahbow and Buffalo brought forward amendments to the party’s constitution to turn the Native caucus into a full-blown commission. The new Aboriginal Peoples Commission was given the job of drafting the Aboriginal component of the Liberal platform. Over the next year, Commission members researched, reviewed, and wrote the Aboriginal platform, which was released in October 1993 as a standalone document. David admits he appeared proudly on the stage with Chrétien when he released it.
The party promised to “engage the provinces in redressing the grievances of Aboriginal peoples over land and resource rights, including negotiating agreements for resource revenue sharing.” In addition, once in government, the Liberals promised to “seek the advice of treaty First Nations on how to achieve a mutually acceptable process to interpret the treaties in contemporary terms, while still giving full recognition to their original spirit and intent.” Of central importance, the party would at last respect our Section 35 rights in the Constitution.
But when the Liberals won the 1993 election with a massive majority, Prime Minister Chrétien named Ron Irwin, who had little connection with the Aboriginal Peoples Commission, as minister of Indian Affairs. Two years later, Irwin released the federal policy on self-government.
Though it purported to fulfill the Aboriginal platform commitments, the new policy was a riddled with doublespeak. While it recognized the existence of the “inherent right” in the abstract, it refused to recognize that Indigenous peoples actually possessed this right. As in the past, the policy required First Nations to negotiate with the federal government before the right of self-government would be recognized or exercised. Inherent right was not inherent at all but one of those Hegelian potentialities that had to first be surrendered before the government granted back jurisdiction in limited areas. There would be no acknowledgement of our Section 35 rights, no independent claims commission, no meaningful consultation on policy and financial decisions affecting us.
The Liberal Aboriginal program had been forgotten. Not forgotten in the sense that it was left on the corner of someone’s desk to be picked up later. It was forgotten as if it had never existed. As if it had been sucked into a black hole where the only evidence of it was the puffs of white smoke from burning the Liberal platform book at Nahwegahbow, Buffalo, Diabo, and Mercredi’s press conference denouncing the Liberal party for yet another betrayal of Indigenous peoples.
The lessons learned in this experiment in party politics were the same ones Martin Luther King Jr. wrote about in his famous 1963 “Letter from a Birmingham Jail,” where he finally gave up hope of progress coming from what he called the “white moderate.” King characterized white moderates as people who claim good intentions but who finally are “more devoted to ‘order’ than to justice; who prefer a negative peace which is the absence of tension to a positive peace which is the presence of justice.” King concluded at the time that “shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.” He could have been talking about our Liberal party.
So it was not really a surprise a few years later when Chrétien tossed the RCAP report into the same black hole. RCAP, after all, called for fundamental change, and the Liberals were interested only in sleight of hand. In fact, after the Aboriginal Peoples Commission was dissolved, the Department of Indian Affairs put together a group known as the SWAT (Special Words and Tactics) team, whose task was to twist the language of Aboriginal title and inherent right to self-government into the delegated municipal authority that was being offered—essentially the opposite of these terms’ accepted meanings—and try to sell to our people a wolf in sheep’s clothing. That process is still very much alive today. The Liberal party has never been able to bring itself to keep its promises to Indigenous peoples, from shelving the White Paper to reconciling our rights flowing from Section 35 of the Constitution in Canadian law.
In 2005, a new leader, Paul Martin, made no change in fundamental policy. In his Kelowna accord, he promised only to lighten somewhat the load of our poverty with the injection of several billion dollars in additional program spending. But he refused to address the cause of our poverty, the fact that Indigenous peoples control only 0.2 per cent of their territories. For the first time, the government presented an initiative that purposely tried to separate its programs from our rights. This initiative, too, would fall by the wayside when, shortly after the signing of the accord, the Martin government was defeated by Stephen Harper’s Conservatives.
While the Chrétien government in the mid-1990s could ignore his party’s Aboriginal policy and all 440 of the Royal Commission on Aboriginal Peoples recommendations, it could not so easily ignore the judgment that came down from the Supreme Court in 1997, the Delgamuukw decision. This decision would reset the relationship between Indigenous peoples and the federal government to an even greater extent than the Calder decision in 1973, because it confirmed that our Section 35 rights in the Canadian Constitution involved real proprietary rights to our lands.
When the decision was released on December 11, 1997, I was at a meeting at the Little Shuswap band. A copy was faxed to us and, as soon as I finished going through it, I called my brother Bobby, Wayne Haimila, and my band council members and asked them to meet at my house at nine o’clock the next morning.
By the time they arrived, I had printed copies for each of them. I knew that this was important enough that we had to gain a firsthand understanding of it.
After everyone had read the decision once, we went through it together section by section, reading it aloud and discussing every point. Although it was clear that Delgamuukw was not the silver bullet that would slay the settler vampire, what struck all of us at that first reading was that our Section 35 rights—which had for the past fifteen years been ignored and obfuscated by a series of federal and provincial governments—were alive and well. Paragraph 109 of the decision clearly stated that the Crown’s constitutional “Interest” is subject to the Indian constitutional “Interest” so long as the Indian “Interest” has not been sold to the Crown by a valid treaty.
The second thing that struck us was the issue of proof of title. Prior to the Delgamuukw decision, we were uncertain what Canadian courts would require as proof of our title. Delgamuukw gave weight to historical possession and, equally important, to our oral traditions in determining title. This was an important piece of the puzzle that fit with the Section 35 recognition and affirmation of our title and rights. This decision, fifteen years after the Constitution Act, 1982, recognized our Aboriginal rights and it provided a judicial recognition of those rights that the wretched negotiations with the federal and provincial governments had denied us.
The Interior Alliance had some resources to make a more thorough analysis of the decision on its own, thanks to the funding we had received from National Chief Phil Fontaine. The funding had come to us in a deal we had struck with Phil the previous summer, which in itself provides an example of the internal Indian politics that would soon play out over Delgamuukw.
That July I had driven down to Vancouver with Bobby to attend the Assembly of First Nations annual assembly. A series of political twists and turns had led to Bobby presenting himself as a kind of sacrificial lamb in the hotly contested election for national chief, which pitted Ovide Mercredi, Phil Fontaine, and Wendy Grant-John against each other. Ovide was the sentimental favourite of many in the Interior Alliance, but what concerned us was Wendy Grant-John, the former Musqueam chief and wife of Ed John, who was intimately tied to the First Nations Summit organization and its extinguishment process. Wendy had attracted our attention a few months before the July election when she announced that she had the support of 100 per cent of the B.C. bands in her bid to become national chief. To the Interior peoples, who had been fighting against the B.C. Treaty Process, this boast was not only obviously false but also troubling, since she was using it to leverage support in other parts of the country.
To make our point that Wendy’s claim of blanket B.C. support was false, we decided to run a candidate whose only role would be to demonstrate that she did not have the support of the Interior bands. It speaks to my brother Bobby’s conviction that he accepted to play that role, to run a campaign only to keep our Interior vote together and out of the hands of those who could use the AFN to put added pressure on us to surrender our rights.
When the chiefs assembled in Vancouver for the election, the first ballot gave Ovide Mercredi 127 votes and Phil Fontaine 126, with Wendy Grant-John only four votes behind the leader at 123. Bobby had succeeded in keeping the Interior people together, and his 35 first-ballot votes were suddenly of enormous interest to all three candidates.
Ovide, we felt, no longer had a chance. Though he was in the lead, we knew from the makeup of Phil’s and Wendy’s support that once one of them was eliminated from the race, the bulk of their support would go to the one still in. Even if Ovide had Bobby’s 35 votes, the election would not fall his way; there was too much overlap in Phil’s and Wendy’s support.
It was then that I went to speak to Phil. I said that we would support him if he would support our fight for Aboriginal title in British Columbia. Knowing that Ovide had no real growth potential, leaving him in a neck-and-neck fight with Wendy, Phil agreed to our demand. Bobby and the Interior bands, as promised, threw their support behind him for the next ballot.
Phil kept his bargain. Within weeks of his election, he sent a contract to the Interior Alliance to set up an Aboriginal Title Committee. But we had not been alone in seeking Phil Fontaine’s support. On the second ballot, Wendy saw her chances slipping away as Bobby moved to Phil’s camp. She then also went to Phil to ask for support for the Summit and the B.C. Treaty Process. Phil took her offer; she dropped out of the race and threw her support behind him. So he finally won the leadership with the backing of both the opposing forces in British Columbia.
After the election, the First Nations Summit received additional support from the new national chief, and Wendy Grant-John took a job as the associate regional director-general of the Department of Indian Affairs. For our part, we put Phil’s funding to work promoting our Section 35 Aboriginal title rights. When the Delgamuukw decision came down six months later, we were able to put our own resources into researching it.
Sadly for our family and for so many who knew him, the run against Wendy Grant-John turned out to be Bobby’s last campaign. He would pass away the following year. He was someone who throughout his life inspired the love and affection of many and who provided all of us with an important symbol of courage and commitment, along with an enormous well of quiet good humour. At the same time, Bobby was not afraid to challenge those who he thought were selling our birthright to the colonial power. We miss his courage and his conviction. His death was a serious blow to our movement, to our family, and to me personally.
In the months immediately after the ruling, the Delgamuukw decision was studied throughout our regional and national Indian organizations. Typically, the federal government responded quickly by claiming that it was an empty box, just as it had tried to characterize Section 35 in the Constitution. In this case, the government completely ignored the decision and all of its implications for our Aboriginal title and their Comprehensive Claims policy. When pressed, they gave a smirky reply that if we weren’t happy with what they were offering, we should go back to court, knowing that that was a decades-long process that could cost tens of millions of dollars, while they continued unfettered with their business-as-usual approach.
We did not immediately go back to court, but we did seek a wide range of legal opinions on what Delgamuukw meant. Our legal experts identified eleven important points that Delgamuukw addressed. These points have also been recognized by those outside of government in law journals and even by those who have long opposed recognition of Aboriginal title. For example, right-wing populist Gordon Gibson described the decision as “a breathtaking mistake” for the constitutional recognition that it affirmed for Aboriginal peoples. What troubled Gibson and gave us hope were the strong points of the Supreme Court decision, which asserted the following:
As I said, the Delgamuukw decision was not a panacea. Crown title was still clearly derived from the doctrine of discovery—still the only legal precept that the Crown has. And the Crown could still legislate on our lands after consulting us, although in many cases this also required our approval. But Delgamuukw did recognize all of the essentials of our title, that it is a collective right to the land with an economic component that could not be extinguished without our consent. And the Court went further, saying that Aboriginal title need not be extinguished and could be reconciled with Crown title through negotiations. It strongly urged the government to take this route in the spirit of “the honour and good faith of the Crown,” a phrase that is repeated numerous times in the judgment.
The Interior Alliance’s focus in the beginning was to bring the government to the table as the Supreme Court suggested to begin talks to reconcile Aboriginal and Crown title. Initially, we asked the government to recognize and affirm Aboriginal title as stated in the Constitution and affirmed by Delgamuukw. From there we believed we could move to new arrangements for jurisdiction over lands and resources, resource revenue sharing, and the type of co-management arrangements that would allow us to build environmentally sustainable Indigenous economies within the Canadian economic and political space.
We tried to strike while the iron was hot, before the government could erect a political blockade. Unfortunately, this didn’t happen, and, worse, the material for the blockade was provided by one of our own. In the months after the decision, Satsan (Herb George), hereditary Wetísuwetíen chief and B.C. regional vice-chief of the Assembly of First Nations, went to the government requesting funding for a three-year study of the decision. Herb was, of course, welcomed with open arms and the government quickly allocated just under a million dollars a year to his regional office of the AFN. It was a real coup for the government. While a growing chorus of voices was demanding the government immediately bring its extinguishment claims policy in line with the reconciliation of Crown and Aboriginal title of the Delgamuukw decision, the government could deflect them by saying that it was waiting for the results of Herb George’s three-year study. After his study was complete, Herb went on to a government appointment to head a newly created First Nations Governance Centre, but those fighting for the recognition of Aboriginal title and rights were left in the lurch.
Despite this setback, the Interior Alliance went ahead with our attempt to pressure the government to follow the path of “honour and good faith” that their own Supreme Court had laid out for them. We held a meeting on Delgamuukw in Kamloops in February 1999 to try to bring together all of the nations with unceded Aboriginal title territories. We sought a co-ordinated push to have the government replace the Comprehensive Claims policy with one that was consistent with the legal principles and negotiating framework set out in Delgamuukw.
At Kamloops, Herb and I came into open conflict about the significance of the Delgamuukw decision. Herb seemed to take the government line of downplaying it. I argued that this Supreme Court decision was the type of breakthrough that should at least give us the power to demand a new claims policy from the government that was in line with Section 35 of the Constitution, which the Court had cited in its decision. After all, I pointed out, the split decision of the Court in 1973 over Calder had in itself resulted in a land claims policy, where before there had been none. Our parents’ generation had seized on that decision and demanded that the government respond to it. With Delgamuukw, it was imperative that we show the government once again that we had far more rights than they had thought.
By the time of the AFN’s annual meeting in July 1999 it was clear that we would have to find a means to force the government to respect the Court’s ruling with our own strategy for implementing Delgamuukw. At the meeting, the AFN set up the Delgamuukw Implementation Strategic Committee (DISC), with Phil Fontaine and me as co-chairs and David Nahwegahbow as legal counsel. DISC was mandated to “encourage First Nation people to exercise the rights flowing from their Aboriginal title and obtain benefits from their land and resources.”
The Committee was also directed to try to engage the Government of Canada in a co-operative process of policy review through a panel of experts. Immediately after the assembly, we met with government officials to propose a joint review committee, where we would sit down to review the Delgamuukw decision together and explore ways to change the current Comprehensive Claims policy so that it was in compliance with the Supreme Court decision. The government officials said that this could only be done by a cabinet decision and they would get back to us with the answer. They never did.
In January 2000, DISC brought together leaders from across Canada in Vancouver to decide on our next move. In the face of the government’s refusal to even discuss the Delgamuukw decision, we put together a six-point strategy designed to progressively pressure the federal government.
The first was simply public education, to make sure that key Canadian opinion makers understood the decision and its implication. While we were doing education, we would continue to try to work with the government on a process to make the necessary changes to the Comprehensive Claims policy. If this effort failed, we would begin working on unilateral approaches to an Aboriginal title policy that would be consistent with the standards and principles laid out by the Supreme Court. This could include direct action by exercising our rights on the ground. To give added pressure, we would begin to work internationally, with human rights institutions and non-governmental organizations (NGOs), to publicize Canada’s intransigence on Aboriginal title.
We returned to the government in May with our plan, telling them we were now at step two, seeking co-operation from the government. By simply meeting with us to explore together ways to make the Comprehensive Claims policy comply with the Supreme Court ruling, we told them they could avoid us moving on to steps three to six, which involved the courts, direct action, and international lobbying. Representatives from Indian Affairs, the Privy Council Office, and the Department of Justice were present at that meeting. Federal officials once again repeated that there was no cabinet mandate to review the Comprehensive Claims policy. Greg Gauld, director general for Comprehensive and Major Claims, would only agree to take it back for consultations with his bosses. The government, it seemed, was still addicted to its policy of extinguishing Indigenous nations through its Comprehensive Claims negotiations.
It is important to mention that these developments did not occur in a vacuum. While the government was refusing to deal with us on reforming the Comprehensive Claims policy, it was pushing ahead with the Nisga’a agreement, which had been negotiated under the old policy, and trumpeting it as the template for all future land claims.
The Nisga’a Treaty was negotiated throughout the 1990s, with the parties reaching an agreement in principle in 1996. It still hadn’t been ratified in 1997 when the Delgamuukw decision was delivered, and the government’s idea of bringing the agreement into compliance with the Supreme Court ruling was to send in the SWAT team. The Special Words and Tactics unit went into the agreement, pulling out references to “ceding, releasing and surrendering rights” and replacing them with “converting, modifying and transforming.” “Extinguishment” was replaced by “certainty.” The results would be exactly the same. Aboriginal title and rights would be surrendered, with a tiny percentage of territory and a small package of rights granted back. Certainty was therefore achieved for the government; extinguishment was still the result for us. There was no attempt to reconcile Crown and Aboriginal title and definitely no sign of “the honour and good faith of the Crown” that the Supreme Court had called for.
The Nisga’a leadership signed the Final Agreement in 1998 and the B.C. legislature gave its assent on April 23, 1999. To our dismay, the Nisga’a Treaty was then promoted as a breakthrough by the First Nations Summit and the B.C. Treaty Process. At the time, it was predicted that it would be the first of dozens to come. In fact, only a handful have been signed. The resistance most often comes from below, as the people refuse to surrender their birthright for quick cash and a tiny fraction of their traditional lands.
The Interior Alliance denounced the Nisga’a agreement and everything it stood for. In the summer of 1998, we argued that the Nisga’a model completely undermined the legal principles and framework for reconciliation of Aboriginal title with Crown title that the Supreme Court had set out in Delgamuukw.
By 1999, the rest of the world was also beginning to notice that something was very wrong in Canada. That April, just as the B.C. legislature was giving its assent to the Nisga’a Final Agreement, the UN Human Rights Committee released a report on Canada that chided the country for not following the Royal Commission on Aboriginal Peoples’ recommendations and sharply criticized the government’s extinguishment policy as a fundamental human rights transgression:
… the Committee is particularly concerned that the State party [Canada] has not yet implemented the recommendations of the Royal Commission on Aboriginal Peoples. With reference to the conclusion by RCAP that without a greater share of lands and resources, institutions of aboriginal self-government will fail, the Committee emphasizes that the right to self-determination, requires … that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence.35
The Human Rights Committee then demanded that “the practice of extinguishing inherent aboriginal rights be abandoned as incompatible with Article 1 of the Covenant.” This was a hugely important assertion by the human rights body. Article 1 of the International Covenant on Civil and Political Rights, which Canada ratified in 1976, states:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote in the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.
The Human Rights Committee was pointing out that the extinguishment of our right to the land was incompatible with our human rights as peoples. These rights are protected by the international covenant, which Canada is legally bound to uphold.
In August 1999, I found myself heading to Europe to attend a meeting of the UN Working Group on Indigenous Populations, an organization that had been launched in 1982 in answer to the demands by Indigenous peoples to have their issues addressed. I was there to speak on our fight against Canada’s extinguishment policy and other issues arising from the Delgamuukw decision, and to respond to distortions of the Indigenous reality that Canada offers in international meetings.
True to form, the Canadian spokesperson spun a wonderful tale of partnership between the federal and provincial governments and Indigenous peoples. He spoke of the new federal programs called Gathering Strength and the Healing Fund as part of their Agenda for Action. And he spoke of the Nisga’a Treaty as the highest form of expression of this new partnership.
As the next speaker, I was able to present a far different picture of Canada’s relationship with Indigenous peoples. I spoke of the poverty and the racism that was at the core of much of the treatment of Indigenous peoples in Canada and, more specifically, of the government’s refusal to accept its own Supreme Court’s judgment recognizing our Aboriginal title and rights on our territories. I also spoke of the Nisga’a Treaty, how it was an extinguishment of Aboriginal title and an affront to international law and norms. When I finished, I was pleased to see that my intervention was well received by all but the Canadian delegation. The world was indeed ready to listen to us. But it was up to us to put our rights into play on the ground.
How to accomplish that? The spark and the example had come in the early summer of 1999 from Grand Chief Ron Derrickson in Westbank. After more than a decade away from Indian politics, Ron had successfully run for chief the previous year. I had been glad to see him back because I knew he had the economic smarts that most of us lacked. But I didn’t expect that he would lead us into battle in the forest.
That news came out of the blue. In July 1999, I was sitting in the band office talking with my adviser, Wayne Haimila, when I received a call. It had been in the news that Westbank was going out logging on its off-Indian-reserve territory. This was not so noteworthy in itself; what made it special was that their permit did not come from the provincial government but from the Okanagan tribal council. Chief Derrickson was logging Indigenous logs with an Indigenous permit.
Both Wayne and I expressed surprise not only at this bold tactic but also at its instigator. Up until then, I had known Ron Derrickson as a shrewd businessman and economic development chief who had proved, with his skill at reading people and his powerful determination, that it is possible to overcome the obstacles the Department of Indian Affairs has put into place to ensure our impoverishment.
He was also known as tough negotiator, the type of chief who, when he had a difficult negotiation with the province, would insist that the meeting take place at a Vancouver hotel at 5:30 on a Friday afternoon and continue until an agreement was reached. This tactic was another Ron Derrickson legend in Indian country. His staff said that in these meetings, Ron would have them arrive early to rest up all day and then push the harried bureaucrats, who had worked the day in Victoria and arrived already tired on the afternoon ferry, until two or three in the morning. At that point, they would be so exhausted they’d agree to anything.
But these were still tactical manoeuvres. His logging initiative was a bold assertion of Aboriginal title and rights, exactly the type of action that we would have to take if we were going to force the government to take our rights seriously.
I called Chief Derrickson and told him that the Interior Alliance would support him and his initiative in any way that it could. He welcomed our support, and we organized an Interior Alliance meeting with him to co-ordinate our efforts.
Within the Interior Alliance, we realized that Chief Derrickson was the perfect person to take the lead on this. He had that legendary quality from his past successes that would make the government hesitate to try to slap him down, like they did so many other chiefs. Ron Derrickson was a man that the government and the businesspeople in the region knew you could not take lightly or intimidate with a show of chest-beating. He had survived an assassination attempt and character assassination attempts. Now he appeared willing to take on the government on the issue of Aboriginal title and rights. We were more than ready to follow him into the forest.