Treaty 9 and Historical Treaties: 3 Meta-Narratives

This is a revised version of an essay, Treaty 9 & Historical Treaties, submitted for a course, Native People and The Land, in the Indigenous Learning Program at Lakehead University in the fall of 2012.

The Commissioners — Fort Albany, August 3, 1905. Source

Introduction

This paper examines Treaty 9 in the context of historical treaties and in the context of contemporary concerns to find a way forward in Aboriginal-Canadian relations. Our review centres upon 3 interpretations or stories with which to organize and understand treaties in Canada. These interpretations or stories are viewed as meta-narratives within which particular events and concepts can be organized. Better yet, they are like paths through the bush, they may cross at different points, but they ultimately emanate from different sources and they lead to different destinations.

Seen as stories guiding living communities, this approach is thus more community-oriented than a purely legal or conceptual analyses of a relatively closed body of legal literature. A community story carries the potency of intelligibility and believability, such that living communities would be able to see themselves as living inside such a story and be able to choose which story they find more intelligible, believable and livable.

The strategy of this paper is to perform a preliminary review of some relevant literature to see if key concepts and issues can be meaningfully woven into our trilogy of stories. The three interpretations or stories I wish to consider, I will label as follows: i) the fascist-imperialist story, ii) the treaty renewal story and iii) the indigenized Crown story. To briefly hint at the distinguishing factors I will quickly summarize each.

The fascist-imperialist story incorporates themes of domination, colonization and subjugation and involves such key historical elements as the regime of the Indian Act and residential schools. The treaty renewal story centres upon the assumption that treaty misinterpretations and violations have resulted in a failure of extinguishment or transfer of Aboriginal title to the Crown, thus requiring a need to fundamentally reset and renew the treaty process. Finally, the indigenized Crown story considers transformations to the Crown in Canada as a result of treaties and other key historical and constitutional relationships with Aboriginal peoples.

Although we will be exploring these stories as three separate story lines, it is not to assume that some kind of hybrid is not possible. Stories have characters, places and events, they also have narrators and authors. While we will not be able to explore such narrative dimensions in any depth in the short space of this essay, understanding the players and interests, narrators and speakers in the treaty context in Canada is essential to appreciating how such story elements might coalesce into an intelligible, believable and livable story.

The Fascist-Imperialist Story

The fascist-imperialist story parallels, by and large, the official story of the British-Canadian state over the past 200 hundred years. The notion of imperialism[1] intended here is fairly simple: people for whom home is somewhere else, especially, the source of their claim to sovereignty lies elsewhere, claim sovereignty over another people in that people’s homeland. The basis of such colonial[2] claims may be military or diplomatic. There are cases of people being colonized in a colonizer’s homeland, for example, slave societies where slaves are ‘imported’ from their homelands. However, this form of colonization typically does not involve notions of aboriginal title. In the Roman empire, slaves could be freed and gain various rights within Rome. There was, however, no question of gaining an underlying collective title to the Roman heartland on the part of enslaved societies. Similarly in the United States, slaves sought freedom and equality, there is no inherent claim comparable to Aboriginal title among African-Americans.

The use of the term ‘fascism’ may be construed as inflammatory but this definition captures the meaning intended:

Fascism tends to include a belief in the supremacy of one national or ethnic group, a contempt for democracy, an insistence on obedience to a powerful leader, and a strong demagogic approach.[3]

I am inclined to expand this definition to include the following:

• An autocratic form of governance
• A militarized (or enforced) commerce
• An ethos of (racial) subjugation

The use of the term ‘fascism’ in the context of the fascist-imperialist story is meant to convey two ideas, first, the racist (ethnic superiority bias) and autocratic nature of the regime of the Indian Act and the glaring hypocrisy with the democratic claims of the settler society in Canada about its own form of governance. The challenge inherent in this label is whether the claim to legitimacy (intelligibility, believability and livability) of the story of the Euro-Canadian state vis-a-vis Indigenous peoples can survive this level of moral hypocrisy?

The fascist-imperialist story for our purposes centres upon the fundamentals of the imperialist interpretation of the evolution of Indigenous-settler societies in Canada. At the heart of this story are the attempts to subordinate Indigenous peoples to the economic and political interests of that settler society. The imperialist story of legal subordination focuses upon the extinguishment of Aboriginal title and runs from the Royal Proclamation of 1763[4], through the treaties, to the British North American Act of 1867 and the Indian Act of 1876 and incorporates such legal concepts as the doctrine of discovery[5] used by settler courts to claim to legitimately subordinate and economically displace Indigenous peoples.

The cultural subordination of Indigenous peoples also intersects with, what I will call, the ‘regime’ of the Indian Act[6]. This regime of cultural subjugation, assimilation and enfranchisement includes various acts by settler governments, including the definition of a status Indian beginning with the “Better Protection” act of 1850, the official effort to assimilate and enfranchise Indians with the “Gradual Civilization” act of 1857, the centralized control of the Indian Lands act of 1860, the imposition of “self-government” and compulsory enfranchisement with the “Gradual Enfranchisement” act of 1869, the Indian Act of 1876 and its regime of amendments which continued the assimilation policies and autocratic control of the Superintendent General of Indian Affairs as well as the institutionalization of assimilationist objectives through residential schools[7] from 1874 to 1997.

In essence, this fascist-imperialist regime of the Indian Act forms the status quo from the Canadian state’s perspective. From here, we will survey the literature to begin to outline alternative stories to that of the fascist-imperialist Canadian state.

Long & Treaty №9

We begin by looking at the story of Treaty 9 by examining the book, Treaty №9, Making the Agreement to Share the Land in Far Northern Ontario in 1905 by John Long.[8] What we want to consider is how the official story of the Canadian state, what we have called the fascist-imperialist story, meshes with the story of Treaty 9 as told by Long.

Long J. (2010). Treaty no. 9 : making the agreement to share the land in far northern ontario in 1905. McGill-Queen’s University Press. Source

Legal Context

First, Long notes that the contemporary legal context differs from that of the period from 1905 to 1929 when Treaty 9 and its adjustments were signed. The 1969 Trudeau White Paper, the 1973 Calder decision and the Constitution Act of 1982, among other legal events, have dramatically changed the legal environment of treaty making and interpretation to include notions of aboriginal title rooted in common law based upon prior occupancy and of the fiduciary responsibility of the Crown to Aboriginal peoples.[9]

The legal context in 1905 was quite different. Based upon the decision in the 1887 St. Catherines Milling and Lumber case, Indigenous rights were seen as superseded by section 24 of the British North America Act and that the Indigenous interest in their land was merely personal and usufructuary. They merely occupied the land ultimately at the pleasure of the Crown.[10] Long cites Kent McNeil’s argument that the validity of the treaties can be challenged if their requirements are or were not adhered to. If the treaties are invalid then the Aboriginal rights of the signatories would remain un-surrendered.[11] The thrust of this argument lies at the heart of our second meta-narrative: the treaty renewal story.

Long then cites Patrick Macklem’s four issues for weighing the legal validity of Treaty 9:

• Canada’s promise (Rupert’s Land and NWT Order of 1870) to protect the Indian tribes
• the power differential at treaty time and any failure to fully explain the treaty’s ramifications
• any abuse of trust and confidence
• the principle of non est factum whereby a party may avoid a contract fundamentally different from what was intended[12]

In the course of the book, Long attempts to show that these criteria were essentially violated. He uses treaty documentation, especially the diary of commissioner George MacMartin, to demonstrate that Indian interests were willfully unprotected and that the treaty’s implications were not clearly explained. Again such violations would be evidence for our second meta-narrative based on the need to renew the treaty at the treaty table given that the terms of the treaty were not met.

Historical Context

Long spends some time going over the historical background of symbols, concepts and practices which provided the backdrop of intelligibility for the events of 1905 which constituted the basis for the intelligibility and believability of Treaty 9.

Women and children at a feast at Fort Metagami during the Treaty 9 payment ceremony in 1905. (Archives of Ontario, I0010709). Source

Before 1905, in what became northern Ontario, treaty-making was undertaken by the Hudson’s Bay Company (HBC) and involved freedom of trade and commerce, and leagues of friendship and cohabitation. Gift-giving, food sharing, and smoking the calumet were important signs of good relations. Trade began within a framework of political alliances involving symbols and ceremonies which evolved with the HBC incorporation of Indigenous protocols. The British flag became an important HBC symbol, not of imperial domination, but of the bond of an alliance which some describe as “fictive kinship”.[13]

Within the culture of this “middle ground”[14] and its hybrid protocols, Long emphasizes the Indigenous significance of the Okinawa/Ogimaa (Cree/Ojibwe) who takes pity on those in need. An Ogimaa is a temporary leader, in no way a boss, who forms a relationship of responsibility to assist people in achieving self-sufficiency. Long indicates that Ogimaa derives from the verb “to give away”. At treaty time, according to commissioner D. C. Scott, the British sovereign was incorporated into the Ojibwe-Cree world view as a parent figure. Thus, Long views the interpretation of the treaty through the imperial lens of domination as a betrayal by the Crown of Indigenous peoples’ expectations in Treaty 9 just as it had betrayed earlier their Great Lakes neighbours.[15]

Long notes that by the end of the War of 1812, “increased immigration was rendering Indigenous and settler economies mutually incompatible in the south”. By 1830 treaty-making had three features: i) financial compensation for land, ii) verbal assurances of traditional activity in unsettled areas and iii) reserve lands for exclusive Indigenous use and for the government’s civilization programme. Sir Francis Bond Head captured the emerging sentiment that farming was in conflict with and superior to hunting, and thus, the result of the contest was inevitable.[16] And therefore, the result was to be encouraged as just and necessary. These were crucial cultural sentiments of entitlement for the fascist-imperial meta-narrative to claim to legitimately displace the hybrid protocols of the middle ground culture of the fur trade era.

The Robinson Treaties of 1850 began the shift from treaties responding to immigrant needs for land to large-scale resource development, especially mining. The Robinson treaties had a number of improvements: i) Indigenous peoples would remain within their traditional territories (unlike the Bond Head proposals), ii) annuities escalated with increases in Crown resources, iii) reserve size was not limited by an arbitrary Crown formula, iv) rights to hunt and fish were not subject to government regulation. Despite these commitments, Ontario went on to regulate hunting and fishing with the Ontario Game Act of 1892 which went unchallenged by Indian Affairs. Furthermore, Ontario courts have shown little sympathy for Indian harvesting rights until recently. The Ipperwash Inquiry noted that treaty rights were largely ignored by Ontario throughout the twentieth century.[17]

A quick summary of the numbered treaties may highlight the post-Confederation treaty history. The numbered treaties tended to accompany railway development, first for settlement in the west (including suppressing rebellions) and then for resource development. By Treaty 3 hunting and fishing were subject to federal regulations, by Treaty 4 blanket extinguishment returned and remained in all later numbered treaties. By the 1887 St. Catherine’s Milling case, as noted, Indians were declared to have no title to the land following Confederation, only limited use rights. Furthermore, that case emboldened Ontario to use courts to remove Indigenous peoples from the path of Ontario’s economic development. By Treaty 8, the treaty-making supervision of the Colonial Office was replaced by the self-supervision of the federal government.[18]

It remains an interesting question, which we can not properly explore here, to ask to what extent the push to re-organize the imperial project into a national one through the Confederation period, also pushed the fascist-imperialist narrative into a more extreme form. To what extent did the push to Canadianize the imperial project by a largely newly arrived immigrant society and elite shape the fascist tendencies of the newly minted Confederation regime. In 1812 the population of Upper Canada was about 75,000 by 1867 it was approximately 1.5 million.[19] Generally speaking, it is not likely these new immigrants settled into the hybrid protocols of the fur trade meta-narrative. What meta-narrative did they bring with them and how was it Canadianized? This question will have to wait.

Treaty Motives

Indigenous peoples immediately north of the height of land above Lake Superior initiated the request for annuities based upon the disappearing fur trade, and the incursion of railways, prospectors, trappers and hunters and their market-driven ethos of maximizing profits by taking as much as possible per season. It is not clear the signatories understood the connection between cash grants and land surrender, since offering gifts for simply ‘sharing the land’ was a long-standing HBC protocol. We only have an HBC clerk’s account that tells us Indigenous peoples wished to surrender their land, a surrender from which the HBC would benefit, since any cash in Indigenous pockets would inevitably end up in HBC coffers.[20]

The superintendent general of Indian Affairs, Pedley, saw the prime purpose of treaties as a way to secure the extinguishment of Indian title and not as a way to respond to Indigenous pleas for support. Given the court supported involvement of Ontario, railway construction, economic development and advancing settlement were the priorities. Thus, Ontario and Canada came to an agreement of aims prior to negotiating with First Nation chiefs. For example, Ontario pre-demanded from the federal government that no reserve territory could include a source of water power of 500hp or more. As Long points out, this contradicts the federal responsibility to protect and advance Indigenous interests. Furthermore, the HBC’s intimate involvement in the treaty process (supplies, posts, canoes, agents, protocols) blurred the distinction between longstanding protocols and the new notions of surrender and extinguishment in the new Crown relationship.[21]

Long notes that treaty-making relied on such long-established rituals and understandings. Indigenous signatories only agreed to sign when assured they would be free to hunt and fish as always and not be forced to live on ambiguous reserves. He points out that the commissioners seem to have been satisfied to perform what they perceived to be the legal enactment of the treaty rather than seeking to achieve a shared, true understanding of its significance. The commissioners dual role of signatories and guardians of the Indian Act represents a conflict of interest which did not seem to concern them.

The understanding that the Crown would simply replace the HBC in its long-established relationship was not incompatible with oral explanations but was definitely at odds with the written version of the treaty and the Indian Act which lay unstated behind it. There is no evidence the signatories understood they were giving up 99% of their traditional land for small reserves.[22] In other words, the Indigenous signatories were performing ceremonies within a story that did not involve surrendering their land, extinguishing their rights and title, nor signing up for subjugation under the autocracy of the Indian Act. However, these elements were key parts of the commissioners’ meta-narrative. Given that the treaty-making involved a literate party and a largely non-literate party, how were these different meta-narratives communicated at the treaty table?

McMartin’s Diary

The keys to Long’s story are the discrepancies between the written and oral versions of the treaty, ultimately exposed by commissioner McMartin’s diary.

The diary records the thoughts and experiences of the provincial government’s representative during the 1905 treaty expedition, including significant passages documenting the oral promises that the commissioners made to Indigenous signatories. Source

The discrepancies concern eight key points:[23]

1. blanket extinguishment was not communicated orally
2. the right to hunt, fish and trap was not clarified as a treaty right or a pre-treaty right
3. there was no mention that reserves would be administered
4. cash annuities were explained as gifts (not as an exchange for surrender)
5. copies of the treaty were not made available as required (Dorchester instructions)
6. there was no indication that schooling was for assimilation
7. only the written texts were very detailed on law and order (in the unstated Indian Act)
8. there was no mention of the Ontario-Canada pre-agreement

Long characterizes the Crown as having hidden agendas incompatible with its responsibilities. Those hidden agendas include residential schools, child welfare laws and a colonial relationship that sought not to enhance Indigenous interests but harboured the threat of ethnocide. Furthermore, the Crown, federated after 1867, had become a Crown with two heads such that the Ontario interest was largely hidden at the treaty table. In the competing interests of this divided Crown, the interests of Indigenous peoples went unprotected.[24]

If we consider Long’s discussion of Treaty 9, the key consideration for our discussion of the three meta-narratives of this essay is that there were serious misunderstandings and violations in the treaty-making and implementation process based on imperial protocols going back to the Royal Proclamation and the Dorchester instructions (Sir Guy Carlton).[25] As a result, serious questions emerge about whether Treaty 9, or the Crown’s written version of it, is valid and whether the Crown’s story of surrender, extinguishment, subordination and assimilation is believable. In other words, Long’s account provides evidence for our second meta-narrative about the failed transfer of title and rights to the Crown, and thus, the need to fundamentally renew the treaty process.

It also offers hints at our third meta-narrative, the story of the indigenized Crown. By performing the ceremonies of Indigenous protocol to take on the responsibilities of an “ogimaa”, the Crown may well have substantially transformed itself by assuming responsibilities of which it was not entirely aware at the time, but which, given the longstanding basis of the fur trade relationship, it should have been. In other words, the Crown was not legally entitled, given a minimum presumption of historical due diligence, to assume a sense of imperial entitlement and disregard for, if not outright ignorance of, fur trade relationships. More than 200 years of Indigenous-Crown (HBC 1670) protocols meant the HBC-Crown was obliged to appreciate the full significance of the protocols it undertook. If in fact the Crown engaged in willful deception, then legitimacy is not the result.

Is this the ignorance of a relatively newly arrived nineteen century immigrant settler community who brought with them a meta-narrative of imperial entitlement? Again, this is a question we can not pursue here. Perhaps simply to note of D. C. Scott’s British-born parents, his father preached as an itinerant Wesleyan Methodist missionary among the Indians of Ontario,[26] so the son’s disregard for the sovereign significance of Indigenous protocol seems unlikely to be entirely the result of ignorance. The missionary’s son may simply have dawned the inherited robes of paternal necessity and righteous conversion to presumed imperialist inevitability.

Borrows & Treaty of Niagara

Next we look at a number of papers from the book Aboriginal and Treaty Rights in Canada edited by Michael Asch.[27]

Asch M. (19981997). Aboriginal and treaty rights in canada : essays on law equality and respect for difference. UBC Press. Source

John Borrows provides some important insights into this point of Indigenous-Crown relations based upon historical protocols in an essay entitled Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government.[28]

Borrows essentially argues that the Royal Proclamation of 1763 is not a standalone document. Rather it is part of the Treaty of Niagara ratified the following year in 1764 and, most importantly, that the Proclamation needs to be interpreted not as a unilateral assertion of sovereignty by the Crown but as part of a treaty incorporating the active participation and understandings of First Nations in the treaty relationship.

The Proclamation was issued in the context of the French defeat in North America, but given that defeat, above all the Proclamation was intended to deal with Indian-settler conflict, especially in the Ohio valley. The peaceful resolution of this conflict required an assertion of principles to mediate First Nations and settler societies.

Borrows argues that the wording of the Royal Proclamation is unclear on the unrestricted assertion of Crown sovereignty in relation to the autonomy and jurisdiction of First Nations, thus, the spirit and intent of the written Proclamation, he argues, is best understood by reference to the treaty with First Nations at Niagara in 1764. This latter nation-to-nation agreement was conducted based upon the renewal and extension of established relations and protocols, the Covenant Chain of Friendship, a multinational alliance in which no member gave up sovereignty. Borrows argument is that the Royal Proclamation (written) became a treaty at Niagara in 1764 incorporating explicitly First Nation protocols, representations and promises, specifically, wampum belts.[29]

To interject on behalf of our meta-narrative interpretations. The Royal Proclamation, the written document, was addressed to its readers, i.e., British administrators and colonials. In other words, it was an in-house colonial document with the CEO addressing his colonial employees regarding how to behave concerning boundaries, territories and the peoples found there. The treaty, on the other hand, is addressed to multiple participants including Indigenous peoples and thus the Proclamation needs to be read differently in light of the oral events which are part of a different meta-narrative, the non-imperialist one.

It was at Niagara that the British proposed a treaty to negotiate and formalize the principles of the Royal Proclamation. William Johnson, the chief British negotiator, proposed a wampum exchange as an expression and reminder of the promises made. Borrows argues for the substantive significance of this treaty based on the widespread participation of First Nations. Approximately 200 chiefs attended from over 24 First Nations, from Nova Scotia to Mississippi, from throughout the Great Lakes region and from east and west colonies. As Borrows describes it, Johnson sought a Pax Britannica for North America. The exchange of the two row wampum symbolized Indigenous protocols of peace, friendship and respect, and non-interference. Borrows notes, it is clear Johnson did not regard the Royal Proclamation and the Treaty of Niagara as an assertion of sovereignty over First Nations.[30]

Given that the Treaty of 1764 is chronologically later than the Proclamation of 1763, it is certainly suggestive that the Proclamation did not overwrite the treaty, but if anything vice versa. To paraphrase Borrows’ contention in our meta-narrative language, the meta-narrative of the treaty is the all-important lens through which to perceive the meta-narrative implications of the document. If there are contradictory or unclear elements in the earlier document, the later oral, i.e., face to face, negotiating events created by all the relevant participants are critical to clarifying those contradictions. What was agreed to orally at the treaty table provides the substantive interpretation of what the earlier document could mean after the treaty. Or again, the multilateral treaty defines the multilateral significance of the unilateral document, the document does not define the treaty.

Borrows concludes that the Royal Proclamation can not be interpreted as a unilateral declaration of sovereignty by the Crown but rather is part of the creation of a grand alliance at Niagara in 1764. Thus, the relevant treaty protocols at Niagara indicate a respect for First Nations sovereignty, the creation of an alliance, free and open trade and passage between the Crown and First Nations, a need for permission or consent of First Nations for settlement on their territory, the English provision of presents to First Nations, and mutual peace, friendship and respect. Furthermore, Borrows sees the protocols at Niagara as foundational, given the breadth and substantive participation of First Nations, and thus as underlying the interpretation of the terms and conditions implied in all subsequent and future treaties. In other words, the promises at Niagara demonstrate that obligations undertaken by the Crown in subsequent treaties may be greater than formerly acknowledged.[31]

Clearly, Borrows arguments, if successful, would undermine the credibility of the story of the surrender of Aboriginal title and the assertion of Crown sovereignty which has been used to legally underwrite what I would call the entire regime of the Indian Act. Given that the fascist-imperialist meta-narrative has been used by the Euro-Canadian state to interpret subsequent treaties, including Treaty 9, the consequences for interpreting those treaties in the light of Niagara raises the possibility of our two alternative meta-narrative readings of First Nation and Crown relations. If subsequent treaties and Crown conduct so thoroughly violated the protocols and promises of Niagara and the protocols of the fur trade society alliances, then the need for treaty renewal becomes that much more compelling.

The institutionalization of treaty understandings in the legal, political, economic and cultural sectors would need a meta-narrative process to renew these fundamental protocols and understandings. Treaty renewal would need to take a substantive and comprehensive social and political approach, not simply the engagement of a handful of legal professionals, but widespread social institutions where Indigenous peoples and immigrant peoples meet: schools, hospitals, courts, businesses, governments, i.e., full community engagement.

Alternatively, or perhaps, complimentarily, the meta-narrative of the indigenized Crown can draw from Borrows arguments the insight that the Crown does not stand autonomous and independent of Indigenous protocols. Rather the Crown was substantively transformed insofar as it sought to assert itself at Niagara through negotiations with First Nations. The Crown is not the source of unilateral, absolute authority, but through such treaties became merely one party in a chain of relationships. In North America, and in British Canada, the identity of the Crown and its authority takes the form of a multi-directional chain of interdependent, yet autonomous parts, and not simply the apex of a hierarchy of one-way flows of authority.

It is not clear how the regime of the Indian Act can legitimately (in an intelligible, believable, livable way) survive inside such a multi-relational story. The colonial story is not ‘our story’ of this place, if it is the covenant chain participants who are speaking. It’s only the story of one party to the agreement, a people from somewhere else who brought their story with them, who sought to make ‘their story’ into ‘our story’, a story based on fascist-imperialist presumptions that attempts to claim legitimacy for domination and subjugation, and promoting colonial mentalities. The colonialism of storytelling is where one group forces their story on others, to the point where the other’s own story becomes hidden or repressed under the colonizer’s story of the other.

McNeil & Aboriginal Title

Kent McNeil argues in a paper, The Meaning of Aboriginal Title,[32] that the courts have failed to clarify the meaning of Aboriginal title in a rational and coherent manner on two fundamental issues: the “origin” of Aboriginal title and the “nature and content” of Aboriginal title. He considers the possible sources of Aboriginal title as Aboriginal systems of law, occupation of the land or some other source. Regarding the nature and content of Aboriginal title, he asks if it is all-encompassing, including every possible use and benefit of the land, or simply limited to traditional uses.[33]

Modern court decisions, from Calder to Guerin, have been clear that Aboriginal title was not created by the Royal Proclamation of 1763, but stems from Indians being in organized societies and occupying the land of their forefathers. However, some court decisions (McNeil focuses on majority and minority opinions in Delgamuukw) have included arguments that Aboriginal rights take their force from common law, after the Crown claims sovereignty, and not from the continuation of Aboriginal customary law itself. In other words, customary practices may receive common law protection, but any Aboriginal system of customary law does not. Or again, common law, not Aboriginal customary law, creates Aboriginal land rights. Alternatively, other decisions included arguments which emphasize the continuity of pre-existing customary law into the post-contact period such that common law is not the source of such rights rather common law merely accorded them recognition and additional protection. In summary, McNeil concludes that Delgamuukw affords no clear solution to the question of the source of Aboriginal title.[34]

Regarding the nature and content of Aboriginal title, McNeil notes that Lord Watson argued in the St. Catherine’s Milling case before the Judicial Committee of the Privy Council in 1887, that Aboriginal title as a complete proprietary interest was inconsistent with the Royal Proclamations assertion of sovereignty in 1763. The Crown’s title was understood to be paramount and substantial, underlying Indian title, which was merely personal and usufructuary, depending upon the good will of the Crown. Indian title was merely a restricted interest, forming a burden on the Crown’s proprietary estate in the land.

However, in recent Supreme Court decisions, the court has been clear that the Royal Proclamation is not the source of Aboriginal title and, thus, we have to go behind the Proclamation to see what it merely recognized. In this regard, some have argued that the Aboriginal interest is a “sui generis interest”. That is, it is unique and not derived from general property law.[35]

However, a question remains regarding the content of Aboriginal title as to whether it is limited to traditional practices or is an all-encompassing and evolving set of rights. Canadian courts, according to McNeil, have generally attempted to limit Aboriginal title to traditional uses at the time of the Crown’s assertion of sovereignty, for example, traditional hunting, fishing or trapping practices. Again in Delgamuukw, dissenting arguments included the notion of aboriginal rights not being frozen in time but evolving over time. As such the right is a general right to exclusive occupation, use and enjoyment of land, not simply to specific traditional practices. In this context, the courts distinguish traditional territories versus reserve lands. In reserve lands the Indian interest is more likely to be seen as an all-encompassing interest.[36]

McNeil sees the limitation of Aboriginal rights to traditional ones as untenable, since it forces Indigenous societies to exist in a pre-colonial state if they wish to preserve Aboriginal title. In other words, either assimilate into Canadian society or live in a pre-colonial state. McNeil’s solution is to define Aboriginal title as an all-encompassing interest not limited to pre-colonial land use, to do otherwise is to violate fundamental common law principles allowing change and adaptation.[37] Furthermore, this all-encompassing right should not be restricted to reserve lands but apply to traditional territories.

McNeil’s arguments have a direct bearing on our meta-narrative interpretations. The argument that neither the Royal Proclamation nor the common law created Aboriginal title undermines a crucial colonial component of the credibility of the fascist-imperialist meta-narrative. The independence, autonomy or sui generis nature of Aboriginal title suggests two options for consideration by our meta-narrative approach. Either, the institution of treaty-making in Canada must return to the treaty table to renew the relationship with the full recognition of the autonomy of Aboriginal title as a pre-condition of re-negotiation.

Or, the Crown must come to terms with the fact that it did not create Aboriginal title, rather it adjusted itself to a pre-existing title and identity. Therefore, the Crown evolved and transformed itself to absorb the Indigenous identity and interest into its fundamental claim to sovereignty in Canada, acquiring Indigenous identity, protocols, rights and responsibilities here in this place as the basis for that claim.

Similarly, whether the content of Aboriginal title is limited and frozen to the time of the Crown’s assertion of sovereignty or represents an all-encompassing interest, both impinge on the intelligibility of the meta-narrative we can live our collective lives within. Putting Indigenous peoples in such an untenable position as being either assimilated or frozen in 1491, is clearly symptomatic of the fascist-imperialist strategy. On the other hand, an all-encompassing Indigenous interest would require, again, a substantial renewal at the treaty table and/or a fundamental recognition by the Crown that its claim to an all-encompassing interest is actually based upon its identity having substantively absorbed the Indigenous identity and interest.

Macklem, Treaty 9 & Resource Development

Patrick Macklem’s essay, The Impact of Treaty 9 on Natural Resource Development in Northern Ontario, as the title suggests, focuses on natural resource development in the light of Treaty 9. In particular, he explores what the legal implications of Treaty 9 are regarding the province of Ontario and third parties (ex., mining companies) engaging in economic activity within the territory subject to the terms of Treaty 9. As he notes, Treaty 9 covers two-thirds of Ontario, as a result, if treaty rights trump government and third party activity, it has widespread implications.[38]

Macklem takes into account recent court decisions in order to answer his questions. In particular, he notes that in Nowegijick v Queen, treaties are to be construed liberally and doubtful expressions are to be resolved in favour of the Indians. Treaties should not be construed by their technical meaning but in the sense they would be understood by Indians. Similarly, in R. v Badger, extrinsic evidence of the parties’ intent and facts associated with signing need to be examined to determine a treaties legal effect. In Simon v Queen, the courts are encouraged to be sensitive to the evolution of changes in practices when interpreting hunting rights. In R v Sioui, the interpretation of treaty rights required a broad and liberal examination of historical context.

In general, the Supreme Court of Canada (SCC) has emphasized Aboriginal understandings and the need to resolve ambiguities in favour of Aboriginal interests. The question Macklem ultimately wants to draw from all of this is, what are the Aboriginal treaty rights in Treaty 9 regarding resource development given this relatively recent SCC interpretive approach?[39]

Similar to Long, Macklem surveys the historical background to Treaty 9 and notes that Aboriginal petitions for assistance were in response to incursions by railways, miners, prospectors and surveyors. He suggests that a band’s interest in treaty relations was proportional to their proximity to the railway and the newcomers it brought.[40] Also, like Long, he notes that the federal Indian Affairs interest in Treaty 9 was the extinction of Indian title to make way for exploration and railway construction as pursued and agreed upon by Ontario.[41]

Macklem argues that Treaty 9 contains some highly ambiguous terms. For example, how does the cessation, forever, of all rights and titles to the Crown relate to the continued right to traditional activities in traditional territories. Treaty 9 does not define in any way hunting, trapping or fishing rights. Are rights created by the treaty or do they refer to pre-existing rights? If the latter, then the treaty does not relinquish all rights and titles. Do fishing rights entail the right to control water use? Do traditional activities restrict the rights of non-Aboriginal activity? Does the treaty entail water rights on or off reserve? Treaty 9 provides no indication the government can regulate the exercise of traditional practices. Who is the “government of the country”, federal or also provincial? What government actions are implied, listed ones or also unlisted ones?

Generally, Macklem’s approach is that such ambiguities lead to numerous possible interpretations, but given the recent SCC stand on treaty interpretation, First Nations’ understandings need to be taken into account to clarify treaty terms. He cites two useful sources for clarifying treaty terms: i) numerous turn-of-century petitions requesting treaty and ii) documented accounts of First Nations understandings of Treaty 9. From the former, it is clear First Nations sought protection from economic interference. Like Long, Macklem cites the conflict between the oral and written versions of the treaty. An explanation for why the signatories ‘Xs’ all look the same is that the Canadian official held the pen while the chief merely touched the top of the pen. Macklem asserts that there was no oral agreement to land surrender, restrictions on traditional practices or that recognizing Canadian law would mean overriding oral treaty promises (again, the unstated Indian Act).

I might also add, what the ‘touched pen’ seems to imply clearly is that the chiefs could not read what they were ‘signing’, if they could not even sign their own names. This strongly suggests that the written document can not be the substantive basis of the agreements between the parties, only the oral agreement can have that status.

Given the clear evidence of their petitions that First Nations, first and foremost, sought protection from non-Aboriginal incursion and given an expansive interpretation would be consistent with the SCC approach, Macklem concludes that Treaty 9 ensures an “effective source of hunting rights” and protection of the “Aboriginal economy” from non-Aboriginal incursions. He interprets this as ensuring not only protection but actively ensuring continued success of the Aboriginal economies. Macklem also explores water rights and cites U.S. jurisprudence that treaty rights include rights to water to support traditional activities. He sees common law riparian rights, as a right to the natural flow of water, as imposing constraints on upstream uses, for example, hydroelectric dams[42].

So while the First Nation signatories understood the government wanted some land for settlement and other purposes, it was always to be subject to the guarantee that Indigenous use, which their economies required, would be preserved and protected. Regarding extinguishment, Justice Morrow, in Re Paulette’s Application, Macklem notes, cast doubt on extinguishment and hinted that the treaties were “mere peace treaties” and not effective instruments for the termination of title. In other words, First Nations retain more than a mere license to use Crown land. Even at common law, he argues, Aboriginal rights are exclusive of non-Aboriginal activity, otherwise, if Aboriginal peoples have no greater right than the general public, it would render treaty guarantees meaningless.

Which brings Macklem to the present concerning natural resource exploration and development activity by Canada, Ontario and third parties. To what extent does Treaty 9 allow or disallow such activity?[43] Prior to 1982, Aboriginal treaty rights were not viewed as binding upon the exercise of legislative authority, but simply as contractual rights against the Crown. After 1982 (and Badger) provinces were not entitled to pass legislation directly in relation to Aboriginals. Furthermore, under the principle that federal law is paramount over conflicting provincial legislation, Macklem argues that section 88 of the Indian Act (1951) shields treaty rights from the operation of provincial law. Thus, any provincial law authorizing economic development by the Crown or third parties that conflicts with treaty rights is disallowed. Any such law or activity must find authorization from within Treaty 9 itself.[44]

Does Treaty 9 allow open-ending economic activity or only listed activity? For example, hydroelectric activity is not listed. Given that the SCC has stipulated that treaties should be interpreted based upon the intentions of the signatories, there is no indication that for Treaty 9 First Nations intended to allow hydroelectric activity.[45] In any case, the fiduciary responsibility of the Crown (federal and provincial) means any such activity must not conflict with Aboriginal interests. In fact, the Crown must give top priority to those Aboriginal interests.[46]

Following Badger, Sparrow and section 35(1) of the Constitution Act 1982, Macklem points out that the judiciary is to apply a framework of analysis when dealing with alleged legislative infringements of treaty rights:

• Statutes prior to 1982 do not delineate their current scope (i.e, need renewal in light of section 35–1)
• Infringing legislation would have to have a valid objective and minimal infringement
• Adequate consultation with affected First Nations is required
• Rights to hunt, fish, trap on surrendered land is recognized and affirmed by 35(1)
• First Nations have exclusive or priority use when in conflict with non-Aboriginal hunting, fishing, trapping
• The honour of the Crown requires minimal infringement and adequate consultation
• Section 35(1) recognizes Aboriginal treaty rights, not Crown treaty rights,
• i.e., Aboriginal not Crown treaty rights are constitutionalized
• Sparrow strengthens the fiduciary obligation and priority of the Crown

Macklem concludes that section 35(1) should make it more difficult for the province to infringe on existing Treaty 9 rights.[47]

Any provincial discretion to use lands is subject to the provincial Crown’s overarching fiduciary obligation to act in the best interest of First Nations. Such uses can not threaten continued First Nations hunting, trapping and fishing economies. Again, according to Sparrow, infringement of Treaty rights for economic development requires specific federal legislative authority, and the justificatory tests of a valid legislative objective, no other viable alternatives for the objective must be available, and any such alternatives must be pursued first.[48]

So what are we to make of Macklem’s remarks for our discussion of meta-narratives? First, Macklem’s approach is to interpret the validity of government authorized (federal or provincial) economic activity within Treaty 9 territory from the vantage point of Canadian jurisprudence. Because he focuses on court activity, his arguments might be seen as seeking to modify the imperialist meta-narrative from within. That is, by taking up the courts interpretations of the treaties as treaties of peace and sharing that nullify any notion of extinguishment and, in fact, prioritize the Indigenous interest, he attempts to seek a court-oriented renewal and re-interpretation of the treaties that undercuts the Crown’s imperialist inclinations.

This renewal does not necessarily occur in the court room but against the backdrop of the court decisions Macklem cites. So political re-negotiation may still be the implied focus of this approach. But now the court-approved meta-narrative of renewal and re-interpretation governs the federal-provincial roles at the political/treaty negotiating table. So in this light, Macklem’s essay contributes to our second meta-narrative of treaty renewal.

However, is there also a form of indigenizing the Crown as well as a court-approved approach to treaty renewal? Is that the role of the courts here? To point out to the Crown that its honour is thoroughly dependent upon its relationship to Indigenous interests, is this not to point out that the Crown’s identity as a legitimate form of authority is entirely bound up with Indigenous interests in Canada. To fail in its fiduciary duty is to attempt to legitimize itself and the activities it attempts to authorize from an imperialist perspective before the Court without proper regard to Indigenous Peoples.

Conversely, when the government attempts to authorize such activity at the expense of Indigenous peoples, such claims to authority are illegitimate because they are rooted in an imperialist colonial standpoint vis-a-vis Indigenous Peoples. In other words, the very legitimacy of the Canadian state is uniquely, sui generis, bound up with its identity as in an honourable relationship with First Nations. Is this the full meaning of the duty to consult? Is achieving the consent of First Nations a prerequisite for the legitimacy of the Canadian state itself and thus ultimately to be able to locate its projects within an Indigenous meta-narrative?

Of course, the courts can only say an activity is in-bounds or out-of-bounds and why. It does not create or implement public policies or activities itself. It simply binds the Crown to the rule of law. Whether the law is Aboriginal law or British law is not Macklem’s concern in this essay. As I said, he chooses to put the question from within the current standpoint of Canadian jurisprudence. To engage the question of Aboriginal law, as Borrows or McNeil do, is not Macklem’s concern in his essay. However, his work here undercuts from within, the legitimacy of the imperialist standpoint of the Crown and the economic interests it has represented for the last 200 years in Canada, by pointing out its contradictions both historical and constitutional with Indigenous interests and identities.

Another way of coming at the issues raised here is to ask the question is the court a post-treaty hybrid institution? Or is it largely reflective of historical and institutional bias, despite its attempt to challenge the Crown within the realm of treaty interpretation?

Bell, Asch & Judicial Precedents

Part of the answer to this question can be found in another paper in Aboriginal and Treaty Rights in Canada entitled Challenging Assumptions: The Impact of Precedent in Aboriginal Rights Litigation by Catherine Bell and Michael Asch.[49] In essence they explore the need for reform in the role of precedent in judicial reasoning.

Of particular concern is the uncritical acceptance of legal principles based on discriminatory assumptions about the nature of Aboriginal societies…It is our contention that if the court is to be an effective forum for the realization of Aboriginal autonomy, a significant change in legal thought must occur.[50]

In other words, because judicial reasoning prioritizes past decisions as the basis of present ones, judges are led to base their decisions on colonial precedents rooted in Canada’s explicitly colonial past and thus sustain such colonial precedents into the present. On the other hand, judicial interpretation is important in seeing how a past case is to be viewed as like a present one, and as such, by “adopting interpretive strategies, a judge chooses one precedent in favour of another, appearing to find, rather than create the law”.[51]

The authors also consider the distinction between relevant binding precedents and persuasive precedents. The latter concerns precedents found in other jurisdictions or lower courts. They note that “many judges regard the creation of new law in the absence of relevant precedent as the task of legislators”.[52] This distinction between finding and creating law goes to the heart of the question. As they point out, “some judges perceive the discipline of law as a highly structured discipline of logical deduction and mechanical interpretation of legal rules”.

This tends to discourage an assessment of the ideologies informing past precedents. Nevertheless, such re-assessments do occur, as in the “persons” case which raised the legal status of woman as equal before the law, by overriding the past precedent interpretation of woman as unequal and inferior and thus legitimately denied the right to participate in public office.[53] Lower courts tend to be more constrained by precedent than higher level appellate courts, however, lower courts are where most litigants seek justice since pursuing higher court decisions typically requires much deeper pockets.

The authors agree that overall “the creation of new law due to changes in public policy, morality, or other ideological influences is for elected representatives”. However, they point out that on the question of Aboriginal self-government the courts have adopted “Canadian law on Aboriginal title as a primary source for relevant precedent” which leaves it unlikely there will be any meaningful recognition of Aboriginal autonomy.[54] On this point, the authors note the irony of Marshall’s largely invented doctrine of discovery in Johnston v. McIntosh which nevertheless became the widely employed precedent guiding to this day the claims of Crown sovereignty vis-a-vis Aboriginal title in Canada.

The doctrine of discovery in Canada is based upon the following judicial presumptions:

• Sovereignty and legislative power is vested in the British Crown
• Ownership of Aboriginal lands accompanies sovereignty
• Aboriginal interest in originally occupied land is less than full ownership
• The British Crown obtained the sole right to acquire the Aboriginal interest
• Aboriginal sovereignty was necessarily diminished[55]

They cite Lord Watson’s St. Catherine’s Milling decision to see Aboriginal title as merely usufructuary and then eighty-five years later, in Calder, the SCC rejects the idea that Aboriginal title was contingent upon Crown recognition. And yet the SCC also affirmed Crown sovereignty and its authority to terminate Aboriginal interests. And then, in Guerin, Aboriginal title is described as sui generis, a unique right, to which property law should not be inappropriately applied. Nevertheless, the presumption of underlying Crown ownership has lead to an onus on Aboriginal claimants to prove:

• Ancestral occupancy and
• Occupancy to the exclusion of other societies

Such “proofs make sense to Canadian judges because they are familiar with tests associated with possessory title in English law”.[56] In Delgamuukw, they note Justice McEachern imposes standards drawn from English law to assess the existence of government in Aboriginal society when he argued that any residual aboriginal jurisdiction was extinguished by the BNA 1867. Thus, he concluded that Aboriginal self-government was only possible given the agreement of both federal and provincial levels of government.

In dissent, Justice Lambert argued that Aboriginal rights are best understood, not by analogies to English law, but by evidence of Aboriginal customs and traditions. However, Lambert goes on to argue that despite such a principle of customary continuity Crown sovereignty exists and as such Aboriginal rights continue so long as they are not in conflict with Crown sovereignty. For Bell and Asch, the main point here is that Lambert deploys a reinterpretation based on new rules of relevance, i.e., customary continuity.[57]

I might interject that the onus on Aboriginal title claimants of occupancy to the exclusion of others is not a criterion of title which the Crown could meet anywhere in Canada. So if this requirement is to be met for title, the Crown does not hold title. As a double standard, it once again is a marker of moral hypocrisy for which the Crown and its colonial institutions seem to have a high tolerance. The central claim of Bell and Asch is that the judicial framework used to assess Aboriginal rights issues contains an approach to the analysis of culture that is “out of date, biased, and ethnocentric”. As a result Aboriginal plaintiffs are required to “carry a burden of proof with respect to establishing facts which is absurd”.

I would add that such absurdity undermines any legitimate claim to justice and authority. Furthermore, the meta-narrative that must ‘rationalize’ such absurdities is likely going to leave a trail of pathological traces. Uncovering such pathologies is important in identifying what can be our legitimate meta-narrative: intelligible, believable and livable.

Bell and Asch focus on Baker Lake because it is the “leading precedent used in Canadian courts to determine the extent of Aboriginal rights concerning ownership and jurisdiction”. Justice Mahoney developed a test with four elements:

• Litigants and their ancestors must be and have been members of an organized society
• That society occupied the specific territory over which Aboriginal title is being asserted
• That occupation must have been to the exclusion of other organized societies
• Such occupation must have been an established fact at the time sovereignty was asserted by England[58]

The question of what distinguishes an organized society from an unorganized group of people, has its own set of precedents. The most immediate precedent Bell and Asch consider is the 1919 Privy Council decision Re Southern Rhodesia which based the distinction on the presence of civilized institutions. However, they note that this precedent derives from precedents going back to Calvin’s Case of 1608 where the distinction drew on whether the society was Christian or not. In the nineteenth century, the basis for differentiation emphasized a distinction between cultures that had an agricultural base and those which relied on hunting.

From the vantage point of our meta-narrative discussion, such perceived thresholds of inclusion and exclusion may be crucial narrative organizers of law, policy and behaviour when societies come into contact with each other. Double standards and absurdities are the pathological traces of an illegitimate narrative: an un-intelligible, un-believable and un-livable story.

The 1919 Privy Council decision was based upon an evolutionary framework that invoked a universal scale of social organization. The authors state that this precedent regarding an organized society was incorporated into Canadian domestic law as the leading precedent with respect to tests for Aboriginal title in the 1979 Baker Lake case.

The Inuit of Baker Lake sought an injunction to stop mining activity. Justice Mahoney refused the injunction but his arguments incorporated the Rhodesia case basing jurisdiction and ownership rights on social organization. This Baker Lake judicial reasoning, Bell and Asch see as forming the basis in Delgamuukw that the plaintiffs societies were so low in the scale of social organization that a “jurisdictional vacuum” existed prior to the Crown assertion of sovereignty. This is very much within the terra nullius legal tradition and in Delgamuukw Justices Macfarlane, Wallace and Lambert all relied on such reasoning based upon Re Southern Rhodesia and Baker Lake.[59]

Bell and Ash go on to point out that anthropologists in the 1920s discredited the evolutionary model in the field of anthropology that contemporary Canadian jurists still use to precedent their decisions. In fact they formulate four postulates of what they call a ‘legal theory of culture’ used by Canadian jurists:

1. Allows for the possibility that human beings live in groups but not in a society
2. Societies can exist that are not ‘organized’ or only in some aspects of social life
3. Organized societies can exist without jurisdiction over their members and territory
4. Organized societies exist where there is no ‘ownership’, particularly of land

By relying on some combination of these four postulates, the authors argue, the courts place a “burden of proof” on Aboriginal litigants that

…is not justifiable in light of contemporary knowledge of culture. Therefore, the burden of proof upon the Aboriginal party becomes absurd and virtually impossible to meet.[60]

The authors canvas anthropological opinion and draw the conclusion that the four postulates of this ‘legal theory of culture’ are “simply wrong”. Thus they argue that “there comes a time when it is necessary to reassess precedent in light of more contemporary knowledge”. In fact, given the anthropological evidence that all human groups live in societies, the onus of proof in court should be reversed, such that, those who would claim that “litigants did not live in society would have to provide factual evidence to support such a contention”.

In summary, Bell and Asch say that the precedential basis for deciding questions of Aboriginal rights and title are “incorrect and highly prejudicial to the Aboriginal party”.[61]

The interesting result of the Bell and Asch essay for our discussion of meta-narratives, is that they are able to show within the legal body of literature how ideology mediates the deductive mechanics of judicial reasoning. In other words, they demonstrate how the boundary logic of inclusion and exclusion which underlies judicial reasoning has evolved based on fundamental perceived cultural differences: Christian/pagan, agriculture/hunting, civilized/pre-civilized social organization. By doing so I would argue, they have helped expose how the fascist-imperialist meta-narrative underlies and organizes the judicial discourse that officially claims to be a discourse governed by fairness but in fact must navigate and negotiate the absurdities and strategies of unfairness which Bell and Asch identify. We might simply call these the irrational pathologies of the imperialist meta-narrative found operating in colonial institutions of settler societies in Canada.

Furthermore, what becomes clearer is how the universe of precedents which the imperialist discourse draws upon is fundamentally exclusive of what it purports to judge, which is Aboriginal culture, rights and customary law. Clearly part of the institutional problems which such concepts as sui generis suggest is that, despite 500 years of interrelationships, the Canadian legal system remains fundamentally closed to Indigenous peoples, culture and traditions. After 500 years they still have not ‘discovered’ who the Indians are.

The role of the sui generis principle in legal interpretations is perhaps a startling admission that Indigenous customary law has remained so solidly outside the body of Canadian law that Canadian jurists do not know it, do not recognize it and can not even imagine what it is. Clearly the dominant meta-narrative of the Canadian legal community by and large still remains the image of an imperial outpost surrounded by unfathomable savages.

I cannot resist including at this point, one of Confederation Poet D.C. Scott’s most popular poems:

The Onondaga Madonna[62]
She stands full-throated and with careless pose,
This woman of a weird and waning race,
The tragic savage lurking in her face,
Where all her pagan passion burns and glows;
Her blood is mingled with her ancient foes,
And thrills with war and wildness in her veins;
Her rebel lips are dabbled with the stains
Of feuds and forays and her father’s woes.

And closer is the shawl about her breast,
The latest promise of her nation’s doom,
Paler than she her baby clings and lies,
The primal warrior gleaming from his eyes;
He sulks, and burdened with his infant gloom,
He draws his heavy brows and will not rest.

• 1898

Is Scott arguably the poet laureate of the fascist-imperialist meta-narrative as he ventures forth from his imperial outpost surrounded by “tragic savage[s]” with their “pagan passions” he attempts to negotiate with the “weird and waning race” their inevitable “nation’s doom”? Did he speak for the Confederation generation as it set up its fascist regime in the bush in order to facilitate and finance its meta-narrative dream of civilization in Canada?

If Scott in any way reflects the outpost perspective of Canadian jurisprudence, it is little wonder that after 500 years, they still have not “discovered” who the Indigenous peoples are who still live here. I can’t help but also wonder over the phrase describing the Indian mother’s baby as “paler than she”. Given the racist inclinations of the time, is this not an allusion to the inevitable assimilation either by intermarriage or cultural conquest? Does this capture the colonial standpoint of Confederation Canada and its role as precedential foundation of contemporary Canadian jurisprudence?

Ariss, Cutfeet, KI & Platinex

In the book Keeping the Land, Kitchenuhmaykoosib Inninuwug, Reconciliation and Canadian Law,[63] authors Rachel Ariss and John Cutfeet look at a recent court case in Northern Ontario involving the Kitchenuhmaykoosib Inninuwug First Nation (KI), the Platinex mining company and the Ontario government. This case is directly relevant to our topic insofar as it demonstrates that Treaty 9 issues which concerned the signatories at the treaty table from 1905 to 1929 are still functioning on the land and in the courts from 2006 to the present.

Ariss R. & Kitchenuhmaykoosib Inninuwug First Nation. (2012). Keeping the land : kitchenuhmaykoosib inninuwug reconciliation and canadian law. Fernwood Pub. Source

In 2006 KI First Nation visited a Platinex drilling camp and informed them that they did not have permission to explore on their traditional land and asked them to leave. The company sued KI and sought legal remedies. An initial injunction sought by KI to stop the exploration was successful, however, subsequent decisions led to contempt of court jail sentences for community leaders who refused to allow exploration after a later court order to allow exploration. An Ontario Court of Appeal ruling released them calling the sentences inappropriately harsh and calling on the government of Ontario to revamp the Ontario Mining Act. The Mining Act Amendment of 2009 provided improved (but not full) recognition of Aboriginal rights and a dispute-settling mechanism.[64]

According to Ariss and Cutfeet, KI see the oral treaty agreements as the foundation of their relationship with the rest of Canada. They quote from the RCAP to demonstrate the perspective:

the treaties were to define relationships…They guaranteed a sharing of the economic bounty of the land. They guaranteed peace and prevented war. The involved a mutual respect that was to be enduring.

From the RCAP perspective treaties are sacred and enduring. Section 35 of the Constitution Act of 1982 requires legislatures to recognize and affirm existing Aboriginal treaty rights. However, governments have been slow to integrate such obligations and the example that is relevant in this case, is the Ontario Mining Act which remained on the books twenty-five years after section 35 became law.[65]

The “free entry” system in Ontario mining law allows the registration of mining claims without notice to any First Nation communities which, the authors argue, is in direct conflict with the need to consult and accommodate First Nations. Thus, a legally protected interest in profits from mineral development is encouraged and used to override another legally protected interest of First Nations. However, the First Nation right is constitutionally protected, whereas the mining right is not.

Thus, the authors point out, the legal dispute between Platinex and KI arises from a clash in Canadian law: existing Aboriginal and treaty rights as understood in section 35 jurisprudence and Ontario’s Mining Act which focuses on supporting and facilitating private resource extraction. They argue that the sui generis nature of Aboriginal law requires more than merely determining whether a piece of legislation fits the Constitution, i.e., reconciling clashes between constitutional and general laws. Noting that Canadian courts are well-resourced with tools, experience and precedents for the latter kind of legal reconciliation, the authors see the courts as less well disposed when dealing with Cree Aboriginal law. Specifically, it was Kanawayandan D’aaki or “keep or protect my land”, which formed the basis of the KI community action to inform Platinex to leave their territory. The authors argue that to move beyond such disputes requires the courts to understand and apply KI’s own legal order.[66]

It was the Ontario Mining Act which provided the legal vehicle through which Platinex, supported by the Crown (Ontario), claimed more and more land, and planned to use it in a way that was incompatible with KI’s continued exercise of their treaty rights. The source of the conflict was not only a matter of the Crown’s claim to land which was contrary to KI’s understanding of Treaty 9. It was also a conflict regarding the vision of what the land is for.

Relying on Kanawayandan D’aaki, the KI community put their understanding of their connection to the land before the court to assert their inherent, Aboriginal and treaty rights. Initially the court accepted that disrupting the community’s attachment to and responsibility for their territory would do irreparable harm to the community. However, later decisions lost this understanding of First Nation jurisprudence by emphasizing the legal features of consultation.[67]

The legal dispute, according to the authors, made KI’s legal duties to protect their land visible to the larger community. It revealed and publicized the conflict between the Ontario Mining Act and section 35 of the Constitution Act 1982. There was wide support against the injustice of jailing the First Nation leaders and against the Mining Act which functioned as if treaty rights did not exist. Many saw the links between the oppression of First Nation peoples, spoiling and polluting the land, and Ontario’s mining regime. Seeing such links and acting on them to persuade governments to recognize First Nation treaty rights, the authors argue, is one step to the reconciliation of First Nations and Canada. Such forms of community engagement are about social reconciliation.

I might add it also shows the community at large how the dominant official meta-narrative which ‘rationalizes’ the Ontario mining regime relies on colonial logic and it also exposes who the meta-narrative players are: economic interests, government and the judiciary.

Nevertheless, the authors see the legal decisions in this dispute as shaping the path of law by providing precedent for future cases regarding the interpretation and application of the law. They note that Canadian law has played a key role in structuring relationships between First Nations, governments and non-Aboriginal peoples, thus, they see an important role for Indigenous jurisprudence in developing Aboriginal rights doctrine and other aspects of Canadian law.[68]

However, the twists and turns in the KI legal dispute reflect both the possibilities as well as the uncertainties along the legal pathways to reconciliation. The dispute’s first decision, the authors note, provides an opening of legal recognition of KI’s relationship to the land. However, the second decision focused on defining the scope of the duty to consult with the end-point of encouraging mining exploration had the effect of limiting that recognition. The authors see this second decision as forgetting what consultation is all about: protecting Aboriginal and treaty rights. Consultation is not simply checking off a legal requirement in an economic process. The courts technical reading of Treaty 9 means it cannot recognize KI’s perspective as a legal perspective.[69]

The authors recognize that the court can only interpret Canadian law, it cannot interpret Kanawayandan D’aaki. Without proper training and experience the court cannot actually apply Kanawayandan D’aaki. As a result, under such circumstances, as in the focus on the duty to consult in this case, the initial opening to KIs legal perspective was closed and so was the path to reconciliation. The Ontario Court of Appeal did state that, with regard to the jailing of KI leaders, the rule of law was applied too narrowly and that KI’s interpretation of section 35 was “respectable”. The Court of Appeal also strongly suggested that the Crown needed to change the Mining Act to comply with the duty to consult. However, it did not suggest that those changes take into account the legal perspectives of KI on the substantive rights they sought to protect.[70]

The authors overall thrust should now be clear. They want to argue that Indigenous law must be recognized as a source of Canadian law, as providing jurisprudence that can interpret treaties, section 35 rights and Canada’s Constitution. Furthermore, they see the recognition of Indigenous law as contributing to a truly sui generis understanding and development of Aboriginal rights.

They are clearly encouraged by certain contemporary developments insofar as they acknowledge that Indigenous Law remains active, being reinvigorated to deal with criminal matters and modern issues. Furthermore, Indigenous Law, by virtue of being a source of Aboriginal peoples connections to and responsibilities for land, also offers other Canadians another way of thinking about their relationships to the land. They note that the dispute between KI and Platinex revealed the strength of Kanawayandan D’aaki within the KI community. It also revealed the incommensurability between the basis of Kanawayandan D’aaki and Canadian legal constructions of Aboriginal and other rights.

A full recognition and respect for Aboriginal cultural differences requires cultural sensitivity and awareness of those differences. They see the possibility for the tolerance of differences alongside the recognition of autonomous and incommensurable communities as playing a role in understanding and applying concepts that underly the treaties and in renewing treaty relationships.[71]

We seem to be back to the issue of how to renew or reform Canadian jurisprudence and public policy, bound up as it is within the still largely closed system of the colonial meta-narrative. The colonial meta-narrative’s primary plot is to secure the legal and political tools to facilitate colonial economic development. As the authors point out, contemporary Canadian jurists have neither the cultural experience nor the legal training to interpret and apply Aboriginal law. Clearly this must change if Aboriginal law is to be interpreted and applied within Canadian jurisprudence. The law school set to open in 2013 at Lakehead University may be an important component in this reform as its mandate is to serve both Aboriginal law and northern development. We will have to wait and see.

Asch, Zlotkin & Aboriginal Title

In the final essay of Aboriginal and Treaty Rights in Canada, Asch and Zlotkin present a paper, Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations.[72] The focus of their essay is the extinguishment of Aboriginal title and how it is a fundamental obstacle to First Nation agreements with the Crown.

Historically, they note, the federal government has sought extinguishment since its creation in 1867 and still sees extinguishment as an essential element for resolving issues. Whereas, many Aboriginal parties completely reject this condition and instead seek recognition and affirmation of Aboriginal rights and title. This highlights the fact that First Nations and governments hold conflicting premises and incompatible objectives regarding the extinguishment of Aboriginal title.

Thus, I would argue, extinguishment offers a crucial criterion for understanding which meta-narrative we are operating with. If extinguishment of Aboriginal title is on the table, we are dealing with the colonial meta-narrative.

The authors go on to note that in 1985 the Coolican Report proposed 3 alternatives to extinguishment while in 1995 RCAP also considered alternatives to extinguishment. They believe that extinguishment is harmful and counterproductive. Instead a new relationship of reconciliation is needed, without extinguishment, based upon the affirmation of Aboriginal title and rights according to the principle of the equitable sharing of ownership and jurisdiction.[73]

In Canadian law, extinguishment occurs either by i) unilateral government action or ii) with the alleged consent of an Aboriginal party. However, unilateral action is based on the pre–1982 presumption that Parliamentary acts represent the supreme law of Canada, that is, that any Aboriginal right derived from common law could be extinguished unilaterally without Aboriginal consent. After Sparrow (1990), the sovereign’s intention must be clear and plain if it is to extinguish an Aboriginal right. After 1982 and section 35(1) which recognizes and affirms existing Aboriginal and treaty rights, the extinguishment of Aboriginal title without the consent of Aboriginal Peoples is no longer possible in Canadian law. As a result, extinguishment typically occurs in exchange for some benefit.

Government continues to approach comprehensive claims as fundamentally contractual matters, despite the fact that such agreements have constitutional status and protection. Although some Aboriginal groups choose to exchange extinguishment for benefits, others refuse seeing title as basic to their Aboriginal identity. Generally, the authors see the condition of extinguishment as slowing or obstructing participation in land claims processes.[74]

The authors argue that the federal understanding of Aboriginal rights and title, accepted without question by Canadian courts, is based upon the assumption that the Canadian state holds underlying title to all of Canada. Although, the Canadian courts have acknowledged that the Canadian legal system cannot easily accommodate Aboriginal understandings of Aboriginal rights and title. In Canadian law, Aboriginal title is a form of property right which is merely a burden on underlying Crown title.

The authors see federal policy as deriving from a lack of specificity about the content of Aboriginal rights in current Canadian case law and in section 35 of the Constitution Act, 1982. Federal policy characterizes Aboriginal rights and title as uncertain, and thus, as a barrier to economic development for all Canadians and as hindering Aboriginal participation in land and resource management. Aboriginal rights and title are seen as common law rights that simply survived the assertion of sovereignty by Britain and later by Canada. As common law rights (until entrenchment in 1982), Aboriginal rights and title were seen as weaker than prerogatives of the Crown and Parliament.

The SCC has stated that Parliament still has the authority to restrict the exercise of Aboriginal rights provided it meets the justificatory test set out in Sparrow. By the federal government’s account, extinguishment allows Aboriginal peoples to exchange undefined and uncertain rights for well defined and certain rights with significant benefits.[75]

From the Aboriginal perspective Aboriginal title is more than mere land use and occupancy of ancestral lands. Aboriginal title includes the right to self-government and jurisdictional rights to make laws, thus, it is equivalent to the concept of underlying title in Canadian legal theory. Aboriginal title is given to Aboriginal peoples by the Creator and is dependent upon their relationship with the land, and as such, it is inherent, not something granted by an alien legal system. Furthermore, the nature of their title is very certain and well-defined and inextricably linked to their identity as Aboriginal people and includes such things as:

• Right to collective ownership of land, water, resources, both renewable and non-renewable
• Right to self-government through their own institutions
• Right to language, culture, religion and customs
• Right to hunt, trap, fish, gather and more

Aboriginal title defines ways of life and relationships with others. However, the term “Aboriginal title” is used when Aboriginal people are speaking English to represent their self-definition as autonomous communities. Aboriginal rights derive from the existence of Aboriginal people, communities and nations. Thus the concept of extinguishment, which is in essence a call for the extinguishment of Aboriginal peoples, is abhorrent. At its core, Aboriginal rights and title are self-defining and derive from sources external to the Canadian legal system and constitution.[76]

I might add, that Aboriginal rights and title are external to the colonial meta-narrative which historically and currently organizes the world view of the Canadian legal system and constitution.

The recognition of Aboriginal rights in the Constitution Act 1982 (35) means the full scope and content of those rights, however to be defined, are now accepted by Canada. First Nations describe negotiations between themselves and governments as “treaty-making”. Treaties are not viewed as fixed contracts, but means of ongoing political and legal relationships based upon mutual recognition and affirmation. Thus, they must be based upon recognition, not the extinguishment, of Aboriginal and treaty rights. The language most often used is “sharing” with non-Aboriginal peoples, but a sharing based upon a clear recognition of the legitimacy of underlying Aboriginal title. According to RCAP, the treaty ancestors did not sign a real estate deal. You cannot give away something you do not own. The treaties were signed as a symbol of First Nations good faith to share the land, not to extinguish their sovereignty and form of government. Thus is the First Nations perspective.

The authors quote professor Little Bear: “[Living Aboriginal peoples] are not the sole owner under the original grant from the Creator; the land belongs to past generations, to the yet-to-be-born, and to the plants and animals. Has the Crown ever received a surrender of title from these others?” Aboriginal rights and title are not on the table for negotiations, what is negotiable is the relationship of these rights and title to Canada. Thus, the question becomes, how will Aboriginal and non-Aboriginal jurisdictions accommodate each other?

Extinguishment attempts to nullify this relationship, replacing legitimacy based upon self-definition to one unilaterally constructed by Canada. Simply put, extinguishment seeks to achieve a longstanding overt objective of federal policy: the assimilation of Aboriginal peoples into the Canadian mainstream. And although the numbered treaties use the language of extinguishment, the First Nations signatories did not see them as such, but as agreements with the Crown to establish ongoing political and social relations and to allow European settlement. In summary, the purpose of negotiations today for First Nations remains the same as historic treaties: to shape a relationship between First Nations and settlers based upon sharing and coming to an agreement that clarifies not only property relations but also how Aboriginal and non-Aboriginal accommodate each other.[77]

Asch and Zlotkin reject the federal position and see the option to affirm Aboriginal title and rights as the best approach. They identify six reasons for doing so.

1) Extinguishment does not guarantee certainty. The 1975 James Bay and Northern Quebec Agreement has lead to years of conflict and litigation. A negotiated agreement based on the affirmation of Aboriginal title will achieve greater certainty and First Nation commitment than an extinguishment clause attained through unequal bargaining.

2) Extinguishment is inconsistent with the constitutional recognition and affirmation of Aboriginal rights in 1982(35). As the Coolican Report noted, why would Parliament recognize Aboriginal rights in the most important constitutional document of the twentieth century and then extinguish them in the following decades.

3) Extinguishment is inconsistent with Canada’s fiduciary obligation towards Aboriginal peoples. In Guerin, the Crown’s obligation is enforceable by the courts to deal with land for the benefit of Indians. This obligation, according to the authors, does not amount to a trust in the private law sense. A fiduciary duty, if breached, makes the Crown libel. Furthermore, the SCC stated that this fiduciary duty has its roots in the concept of Aboriginal, Native or Indian title and is inalienable except upon surrender to the Crown. The fiduciary relationship arose through historic powers and responsibilities assumed by the Crown rather than through the Indian Act. In Sparrow, the SCC characterized the relationship between Aboriginal peoples and the Crown as trust-like rather than adversarial. It is therefore inconsistent with this fiduciary responsibility for the Crown to seek the surrender of title: the honour of the Crown is at stake in its dealings with Aboriginal peoples.

4) The extinguishment policy of the Crown is not consistent with international human rights standards. The United Nations Declaration of the Rights of Indigenous Peoples includes the full recognition of Indigenous laws, traditions, customs, land tenure systems and institutions. Thus, extinguishment can be seen as a violation of international law.

5) Extinguishment needs to be rejected given its strong negative impact on Indigenous peoples conception of their relations with Canada. The longstanding motive of Indigenous peoples for engaging in treaty-making was protection not self-destruction.

6) Extinguishment needs to be rejected because of its ethnocentric bias: the assumption of racial superiority. Government policy has been and remains infused with Marshall doctrine of discovery whereby European empires asserted sovereignty and thus the government assumes when it sits at the treaty table that aboriginal title is already extinguished. Thus, Aboriginal title can only refer to use and occupancy rights not underlying title. The authors consider this a reflection of an ethnocentric bias rooted in the colonial legal precedents which serve as the basis for court decisions and public policy. However the SCC clearly rejected ethnocentrism in Calder.[78]

To summarize more briefly the authors 6 reason for rejecting extinguishment:

1) it does not provide certainty 2) it is inconsistent with Canada’s constitutional obligations 3) it is inconsistent with Canada’s fiduciary responsibilities towards First Nations 4) it violates international human rights standards 5) it has a profoundly negative impact on Aboriginal parties 6) it perpetuates the ethnocentric bias of the Crown

For Asch and Zlotkin the central objective of settling outstanding land claims needs to be the construction of a better relationship between Indigenous peoples and Canada, ideally founded on principles of justice, mutual respect and cooperation. Domination and ethnocentric thinking must be rejected. They argue that an approach that recognizes underlying Aboriginal title is the most beneficial to all Canadians. And Aboriginal underlying title must include both jurisdiction and ownership. They offer the following supporting reasons:

i) Indigenous peoples were present prior to the arrival of Europeans and their declaration of sovereignty ii) an international consensus exists that the equality of all peoples is self-evident iii) the recognition that 500 years ago First Nations were living in political systems and territories iv) Aboriginal territories and political systems accord with the United Nations declarations regarding self-determination v) thus, First Nations had rightful jurisdiction and ownership when Europeans arrived[79]

How would this new (or old) relationship be accommodated?

RCAP considered expanding the meaning of the Crown to include Aboriginal jurisdiction, in other words, there would now be three levels of jurisdiction: federal, provincial and Aboriginal. However, the authors view Aboriginal title as an unequal partner in Confederation and thus is unacceptable. To view Indigenous peoples as incorporated into a single Crown, in a subordinate position to the federal and provincial Crown, without their express consent is unacceptable. They ask, how can Canada assert underlying title unilaterally, if the underlying Aboriginal title is acknowledged? They argue instead that in principle, Aboriginal title is the better title.[80]

They then ask, would this delegitimate the state? No, they say it would simply move the focus away from title towards the development of political relationships. Aboriginal peoples have always promoted a political relationship based upon sharing and accommodation given that underlying title was gifted to the Aboriginal peoples by the Creator. But that gifting was only on the basis that they maintain an ethic of sharing.

So the authors consider accommodation to include the following:

i) begin with the recognition and affirmation of Aboriginal title, including ownership and jurisdiction ii) use the language of mutual respect and accommodation rather than domination and subservience iii) set out detailed provisions for jurisdiction, the application of laws, rights to land and resources, the protection of third-party interests, co-management regimes, dispute resolution systems, and more issues covered in comprehensive claims agreements.[81]

The specifics depend upon what the parties agree to in negotiations. The authors view their proposal as avoiding colonial assumptions, because if underlying title is based upon Indigenous peoples and the Creator, extinguishment would delegitimate us all. Thus, they see reconciliation as strengthening a shared understanding of Canada. In fact without a legitimate Aboriginal title, they say there cannot be a legitimate Canadian state. Without the recognition of Aboriginal title, we have a state based upon colonial rationalizations. They envisage a relationship between Aboriginal peoples and Canada based upon the recognition of a permanent Aboriginal title that sustains us all and which can take Canada from a state founded on colonialism into a twenty-first century state with roots to time immemorial.[82]

So what is the effect of Ash and Zlotkin’s essay on our meta-narrative discussion. First, extinguishment is a key defining feature of the fascist-imperialist meta-narrative. Its goal is colonial domination and subjugation to achieve an unbalanced division of economic development. It is part of the sustained effort of immigrant settler society to make Aboriginal peoples the Other in their own spiritual homeland. Secondly, making Aboriginal title the underlying Canadian title would, it seems to me, belong to the indigenized Crown meta-narrative. The newcomers accommodate themselves to the homeland culture, they do not claim sovereignty over it. However, as long as the newcomers’ institutions remain bound to the concept that home is somewhere else, their institutions will require continuous re-negotiation and renewal at the treaty table. Once they have accommodated themselves to the reality of their new spiritual homeland by recognizing the Indigenous Self that lives here, we may then be able to truly speak of a thoroughly Indigenized Crown, an expression of authority which has the Indigenous interest as fully integrated into its identity. The question would then be can the Crown survive in recognizable form if it becomes thoroughly Indigenized?

Our review of some relevant literature appears to have offered some important considerations for organizing our three meta-narratives. In closing we will attempt to highlight some crucial properties and differences of each.

The fascist-imperialist meta-narrative with respect to treaties has the extinguishment of aboriginal title as a key and recurring element. Furthermore, the fascist-imperialist narrative rationalizes strategies that place the advancement of colonial economic development above the interests of First Nations even when settler societies highest court has made this illegal. Specifically, regarding Treaty 9 the conflict between the oral and written versions highlights the operations of different meta-narratives for each party. This, in fact, appears to be a recurring tactic of colonial governments from the Royal Proclamation to Treaty 9.

Extinguishment and the doctrine of discovery are tools in the colonial toolkit to undermine precisely what the First Nations were seeking at the treaty table in Treaty 9: protection from disruptive economic activity. The Crown claimed orally to be assuring this protection while implementing a legal regime which was to undermine that protection in favour of the economic interests which sought to displace First Nations communities. From Sir Francis Bond Head to D. C. Scott, colonial governments saw this as inevitable, necessary and just. Thus they constructed a meta-narrative of justification for this displacement. As a result, their oral narrative and the HBC protocols of the middle ground sought to present the illusion of protection by re-enacting the ceremonies of trust while engaging in a written regime which was bound to a very different meta-narrative: fascism and imperialism. This the moral ground of the Confederation state.

Given the conflict at the meta-narrative level between settler society’s institutions and First Nations, the second meta-narrative of renewal and re-negotiation appears to be the most likely next step. This will require a dismantling of the prejudices supporting colonial institutions and a deconstruction of the colonial meta-narrative. It will be necessary to identify clearly the properties of the colonial meta-narrative, especially, given the Crown willingness to engage in deception to achieve its ends.

It is also vitally important to recognize that the conflict at the political level is driven by conflicts at the economic level. The story of the railway as the nationalist story of Canada, central to the fascist-imperialist story of colonial triumphalism, needs to be deconstructed for how it was used to justify constructing a facade of democracy for ‘us’ while running a fascist regime in the bush for ‘them’. The traces of this meta-narrative justification for turning Indigenous peoples into the Other in their own spiritual homeland are recorded in a thousand different places of colonial culture: letters and diaries, poems and artworks, newspapers and official documents.

A comprehensive re-negotiation is required of how Aboriginal and non-Aboriginal institutions interact in all major sectors: economic, judicial, cultural, political. The history of violations needs to be part of this re-negotiation insofar as settler society institutions cling to the fascist-imperialist objectives of extinguishment and subordination in order to advance economic agendas at the expense of Indigenous interests.

Along with understanding the economic interests which sought to achieve their goals through colonial institutions, it is important to comprehend how the Indigenous perspective could be subverted. Waves of immigrants were introduced into the colonial narrative and economic agenda as members of a society perceived to be at odds with Indigenous interests. Farmers versus hunters, industrial labour versus gatherers, immigrants were inculcated with an agenda of inevitable conflict with the Indigenous peoples and to be rewarded with land and jobs if the Indigenous peoples were displaced.

The rationalizations of that displacement are what the colonial meta-narrative appears to be driven to legitimize: to turn First Nations into Others in their own spiritual homeland. The pathologies of this rationalization in the form of absurdities, double standards, hypocrisies, and racism lie about everywhere within and without colonial institutions. And still the governments in Toronto and Ottawa sing the song of jobs and growth, economic development as if these were culturally neutral themes.

The measure of whether or not economic development is flying under the flag of fascist-imperialist or not is, as the colonial courts have identified, bound up with the honour of the Crown. The honour of the Crown being the degree to which it behaves in a manner that it takes as its own the interests of Indigenous peoples. To act as if home is somewhere else, sovereignty is somewhere else, and serve the economic interests of those for whom Canada is not their spiritual homeland, is to dishonour the Crown and the claim it makes to be sovereign: the supreme authority in the place called ‘Canada’.

Of the third meta-narrative, that of the indigenized Crown, recognition of Aboriginal title as the underlying title is a crucial component in the political and legal dimension. If governance in Canada is to be construed as a covenant chain and not as an imperial hierarchy, the story of the indigenized Crown would become a more intelligible story. However, to be meaningful, all the major sectors of society, once again, would have to be permeated with the significance of this underlying reality. Settler society’s institutions, legal and political, educational and economic, would need to take Indigenous culture deep into its abiding reality in order for this meta-narrative to become the intelligible, believable and livable story of who we are.

If not, if settler institutions cling to their differences, then we remain at the perpetual treaty table of renewal and re-negotiation. And immigrant settler economies remain fundamentally the dominating Other in a land which does not spiritually belong to them. The legitimacy of settlers being here remains contingent upon the consent and accommodation of Indigenous interests, identity and title. The third meta-narrative is only intelligible, believable and livable, if newcomers take the path to becoming indigenized which the First Nations repeatedly have offered to share, offering themselves as guides, to the gifts with which they have been gifted. This path in the bush is still before us, which one will settler colonials take?

On a final note, insofar as I am writing this in my hometown of Thunder Bay, the possibility of the latter two meta-narratives being recognized as a more intelligible, believable and livable story has a much greater chance of achieving reality here than in the imperial centres like Toronto and Ottawa. Perhaps we should look here then for the evidence of the reality of the truly Indigenous Canadian story and not to the colonial capitals.

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