[1973], 145-226. See also Sanders 1989.
30. Calder et al v. A.G.B.C. (1973), 34 Dominion Law Reports (3d) [1973], 145-226.
31. Calder:401.
32. See Durham 1990.
33. See Turner 1993.
34. Turner 1993.
35. Weaver 1981:3-4.
36. Canada, Government of, (1969) Department of Indian Affairs, Policy Statement:1.
37. Tennant 1990:171.
38. Tennant 1990:172.
39. Guerin v. R. (1984) 13 D.L.R. (4th) 321.
40. Webster’s New Collegiate Dictionary (1981) Toronto, Ontario: Thomas Allen &Son Limited, 1156.
41. Guerin v. R. (1984) 13 D.L.R. (4th) 339.
42. Bell and Asch 1997:48.
43. Guerin v. R. (1984) 13 D.L.R. (4th).155.
Chapter 7: Conflicts and Constitutions: The 1980s
The federal government has a claims policy that they brought into place after the Calder case, and that claims policy was hollow. It was empty. It meant nothing. Still, the Gitksan and Wet’suwet’en entered into one of their phases of trying to resolve the land question in the mid-70s, and in 1977 qualified for federal funding to prepare negotiations…. Beginning in 1977, a tremendous amount of work was done, work that built on what was done before and took it even further. A base was built to prepare for negotiations.
—Medig’m Gyamk (Neil Sterritt), Gitksan, 1992, It Doesn’t Matter What the Judge Said.1
The Master’s Tools: The Comprehensive Claims Policy
Before a land claim could be considered for negotiation under the federal government’s Comprehensive Claims Policy, Aboriginal “claimants” had to first “qualify” by presenting specific evidence to the federal government of Canada, and to the provincial governments. According to the terms and definitions set out in the Calder decision, to be eligible, a claimant group would have to prove that their ancestors were members of an organized society who had occupied and used specific lands and resources before Europeans arrived; and, that the present claimants continue to occupy these same lands, and to use these same resources today.
Aboriginal peoples and their supporters set about doing research to demonstrate that their territories had borders that could be delineated and transformed into lines on maps; and that their villages, their hunting, fishing and gathering spots, and their sacred sites, could be represented by Xs on those same maps. Feasting and potlatching, increasingly transmuted into nouns, appeared on administrative flow charts, representations of governments, complete with bureaucrats and pawns. Continually contested and negotiated processes for resolving disputes were written down and codified into written laws. Oral histories, songs, dances and prayers were documented and edited; tape recorded and word processed. Stories and memories were burned onto film.
Using the masters’ tools to destroy the master’s house,2 reappropriating colonial schemes, converting them into resources for cultural survival, are strategies that oppressed people have honed for centuries. Mapping can be a profoundly powerful political act of naming, or re-naming what is yours, in your own language. Documenting hunting, fishing, gathering and food processing can be a way of seeing what television and schools have tried to render invisible. Graphing structures of government can reveal another potential for feasting systems that have been changing and adapting for thousands of years. Trying to understand the underlying philosophies of laws can help to create alternative visions of justice. Recording the knowledge of elderly people whose embodied histories may die with them is, in the contemporary world, an important part of safeguarding their unique experiences and wisdom for the benefit of all of humankind.
Aboriginal peoples in Canada in the 1970s, like Indigenous people around the world, were actively engaged in a decolonization movement that included efforts to liberate themselves politically and culturally from years of being told, and sometimes believing, that they had no right to dreams of self-determination, and no possibility of realizing them. They were digging out from under over 100 years of colonial domination, emerging sometimes from generations of institutionalization in residential schools, and prisons. For the Gitksan and Wet’suwet’en, and other Aboriginal peoples in Canada, having access to resources through the Comprehensive Claims Policy provided the necessary material resources that enabled people to become more deeply engaged in learning or re-learning their languages, their histories, their subsistence technologies and practices; and reflecting on their traditional and contemporary cultures. With the pragmatic determination of their ancestors, they tried to represent and translate themselves through images and languages that “others” might understand, without sacrificing their own dignity and integrity. As they sought to interrupt the historical monologue, and to initiate dialogue, these resources helped their voices to be heard, often for the first time, by non-Aboriginal Canadians.
The financial support provided by the federal government to prepare comprehensive claims submissions, and the implied promise that these claims would be taken seriously and responded to honourably, were integrated into the Aboriginal movement for decolonization: imperfectly and unevenly, and within the confines shaped by power relations, of course. But reappropriated they were.
The comprehensive claims process moved very slowly through the Office of Native Claims during the 1970s and 1980s.3 The federal government’s guidelines allowed it to negotiate only one claim at a time in each province or territory. In British Columbia, where the provincial government refused to participate on the grounds that no Aboriginal rights ever did or ever would exist in this province, the entire process was stalled. The Nishga claim, supported by the accumulated documentation of over 100 years of constant petitioning and preparing for litigation, had been filed first and lay dormant. All other First Nations knew that their claims would not even be considered until after the Nishga’s was settled.
While the comprehensive claims process in B.C. was stuck in this logjam in front of the bottleneck built by the provincial and federal governments, the pace at which the exploitation of natural resources was proceeding accelerated, and profits from the forests and the seas flowed into corporate bank accounts unimpeded, except by political resistance. Many people feared that, by the time First Nations got to the table, there would be no resources left to negotiate. Throughout the 1980s, various B.C. First Nations mounted campaigns of civil disobedience. They and their supporters temporarily halted industry and transportation across their lands, and applied—sometimes successfully—to the courts for injunctions to halt development until their claims were heard and adjudicated.4
Title on the Baker Lake Tundra: Lower Peaks than Mexico
The exigencies of survival dictated a society composed of small, scattered groups. The band itself had no political hierarchy; that existed only at the camp level….
Major decisions all involved the hunt, conducted at the camp level, and were made by the oldest hunters. Neither individuals, camps nor bands claimed or recognized exclusive rights over a particular territory…. There is no evidence or reason to infer that the Inuit’s nomadic ways, relationship to the land and social and political order changed from prehistoric (circa 1610) times until their settlement (circa 1950).
—Justice Mahoney, Federal Court of Canada, 1980, Reasons for Judgment in The Hamlet of Baker Lake et al v. Minister of Indian Affairs
