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Bob Rae was Premier of Ontario 1990-1995, a federal Member of Parliament 2008-2013 and leader of the federal Liberal Party 2011-2013.
Some of the reactions to the Supreme Court’s decision in the Tsilhqot’in First Nation case, which requires pipeline projects and similar developments to seek aboriginal approval, are so over the top they cannot go without comment.
Nearly forty years ago a case from the Nisga’a community known as Calder made a similar long journey through the courts, and it was there that the Supreme Court (long before the Charter) held that the arguments from both Ottawa and British Columbia that no aboriginal title or claims survived the arrival of European settlement was wrong.
The invasion and occupation of the Americas had been seen by imperial powers as a conquest of empty land, whose borders and boundaries were decided by any number of treaties and agreements signed in Europe. In the sixteenth century there was even a theological argument in the Valladolid debate about whether aboriginals were human. The doctrine of “terra nullius” was often invoked to assert the legal fiction that these lands belonged to “no one” before they were “discovered” by white people from Europe.
The Calder decision rightly blew those doctrines out of the water, and urged governments, First Nations, and other aboriginal peoples to sort out their relationships on the basis of equality and respect. Since that time, in a variety of ways, governments have made an effort to do this, but it has been slow, halting, begrudging, and only rarely successful.
From time to time the Court has had to weigh in, at each juncture being careful, some might say judicious, to point out that there is something called “the honour of the Crown,” that governments owe a fiduciary duty to aboriginal peoples, and that they have a responsibility to consult and accommodate.
Centuries before Calder, governments often signed treaties, with a variety of motives. The French and English signed “peace and friendship” treaties as a way of ensuring military loyalty. The so-called numbered treaties were more or less imposed between 1875 and 1925 to ensure the land was cleared. Two recent books, James Daschuk’s Clearing the Plains and John Long’s Treaty 9, raise important issues about the moral and legal foundation of these agreements, and their implications for the modern world.
More recently, some groundbreaking modern treaties have been negotiated and signed – in Quebec, Labrador, Nunavut, Northwest Territories and British Columbia – in which more equal and positive relationships have been established with shared powers, revenue distribution, and massive land claims that have recognised aboriginal jurisdiction over large portions of their traditional lands.
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