Check your aboriginal privilege at the door

I read today the article by Terry Glavin on why yet another attempt to build a pipeline is failing.  It is not a caricature. It is not a spoof. It is the real world outcome of policies launched by our Supreme Court years ago,  and in so far as the Court has consistently done its best to make Canada an ungovernable mess, it is succeeding.

The backers of the pipeline hired Indian groups to do the preparatory wood clearing and road building for $620 million. They obtained the permission of 20 band councils through whose territory the pipeline would pass. Was this enough? No!

“The thing is, it doesn’t much matter what those 20 band councils have to say for themselves. What matters is what the Wet’suwet’en hereditary chiefs and their clans and their house groups say, and for several years they have been saying, fairly consistently, thanks, but no thanks, no pipeline, no damn way…

…In Wet’suwet’en country, the law is the ancient feast system, and the hereditary chiefs are bound to uphold the law. That’s not just some hippie anthropologist’s point of view, either. It’s the view of the Supreme Court of Canada, in its specific findings in the landmark 1997 Gitxsan and Wet’suwet’en case, Delgamuukw versus the Queen. It was the hereditary chiefs who fought and won that court battle. In Wet’suwet’en country, Aboriginal rights and title are vested in the hereditary chiefs and their clans and their house groups.”

In the Supreme Court judgment summary of the Delgamukw case, we read as follows:

The appellants, all Gitksan or Wet’suwet’en hereditary chiefs, both individually and on behalf of their “Houses”, claimed separate portions of 58,000 square kilometres in British Columbia.  For the purpose of the claim, this area was divided into 133 individual territories, claimed by the 71 Houses.  This represents all of the Wet’suwet’en people, and all but 12 of the Gitksan Houses.  Their claim was originally for “ownership” of the territory and “jurisdiction” over it.  (At this Court, this was transformed into, primarily, a claim for aboriginal title over the land in question.)

133 individual territories, claimed by 71 houses. For 1500 to 2000 people, as the Court said. See below.

I continue with the Delgamuukw case because more people should be aware of how profoundly the interest of the larger society of Canada were trammelled and thrown aside by the actions of the Supreme Court.

The issue concerned the treatment by the trial judge of oral histories of the Aboriginal claims, and it was held that he had not properly given them the weight the Supreme Court thought he ought to have done. So the upper court dismissed the judgment of the trial judge, and allowed the claim and a new trial.

The oral histories were used in an attempt to establish occupation and use of the disputed territory which is an essential requirement for aboriginal title.  The trial judge refused to admit or gave no independent weight to these oral histories and then concluded that the appellants had not demonstrated the requisite degree of occupation for “ownership”.  Had the oral histories been correctly assessed, the conclusions on these issues of fact might have been very different.

So are the claims of the Kings of Gondor to be descended from the Andurin of Atlantis to be judged by the oral history of one J.R.R.Tolkien? More close in time, and somewhat more realistic, are the claims of the Kings of Scotland to be the Kings of England to be adjudged by the oral traditions of hereditary clan chiefs of the Celtic Highlands faithful to the Stuart cause? As those clan chieftains recalled in 1975? Or were those claims not finally ended in fire and sword at Culloden?

If the Supreme Court of Canada were adjudicating the legitimacy of the House Windsor to be the legitimate rulers of the United Kingdom the claims would depend on some daft crofters in Skye and Uist who remembered their great grandmothers’ fairy tales of Bonnie Prince Charlie. No serious state should allow a court to determine its legitimacy.

These thoughts may seem absurd and overdrawn. Even I can at times when I can see the dilemma of the courts. They were thrust into the position of inventing law on the spot: to give substance to the term “aboriginal rights” as mentioned in section 35 of the 1982 Constitution Act. In the legal treatment of aboriginal rights by our courts we see the action of judges trying to make sense of the claims of the original inhabitants against the claims of the larger society.

Being the good Liberals they were, the Supreme Court was extravagant in its definitions of “aboriginal title”.

Aboriginal title was specifically detached from those traditions specific to the continued maintenance of Indian economic or cultural existence.

Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures.  The protected uses must not be irreconcilable with the nature of the group’s attachment to that land.

Terry Glavin’s article on the latest blockades assigns some blame to Trudeau and Premier John Horgan of British Columbia. What did they mean when they said “that their consent should be required, as per the United Nations’ guidance, for industrial developments such as pipelines to proceed in areas subject to some degree of Aboriginal title.”

Let me give you the straight Canadian redneck version of events, and it is very simple, as you would expect. For the political Left, and I include the Supreme Court as a leading exponent of leftism, Indian title is a white-created tool to frustrate economic development. Aboriginals are mascot groups. Thomas Sowell described the use of mascot groups as the way in which liberals show their moral superiority. “See how concerned I am!” In Canada, “aboriginal title” is a tool of left-wing lawyers and courts who are committed to seeing resource extraction come to a halt, so that they simultaneously grow wealthy in court cases and frustrate the legitimate claims of Canadians to participate in the wealth of this country by elevating the claims of bands of one or three thousand over the claims of all the people.

The jurisdictional confusion,  the wrecking of the National Energy Board, the over-consultation, the refusal to throw down the gauntlet at the courts, or even to take them on in reasoned debate, as one ought, suits the interests of the anti-development portions of the Canadian Left.

In the Delgamuukw decision of 1997, the Supreme Court said “Wet’suwet’en consist of approximately 1,500 to 2,000 persons, who also predominantly live in the territory claimed.” Keep that number of people in mind when you read the following paragraph from Terry Glavin.

Whatever the region’s band councils have to say, the Coastal Gaslink pipeline route enters Wet’suwet’en territory at a place called Honeagh Bin, which is under the authority of the Thin House (Yexsowwiten) chief, whose people are members of the Big Frog (Gilseyhyu) clan. The pipeline route then traverses Small Frog (Laksilyu) property held by the House of Many Eyes (Ginehklaiyex), and on and on like this until it passes through the house territories of the Bear/Wolf clan (Gitumd’in), one of whose chiefs, Madeek (Jeff Brown) was a leader at the roadblock the RCMP dismantled on Monday. Eventually, the pipeline route reaches Talbiits Kwa, another Big Frog territory, which is where the Unist’ot’en have been controlling traffic on the forest service road for the past several years. The route then leaves Wet’suwet’en country at Lho Kwah, and enters the Haisla Nation territory. The Haisla are organized mainly into the Kitamaat First Nation, which generally supports the LNG Canada project.

We have reached an absurd point when such intra-tribal arcana is required to be considered when we try to make pipelines work. We are endowing villages of backwoodsmen the might, majesty, and power of states. If they were white, we would see the situation much more as Billy-Bob MacAuslan and his  clan of rednecks holding up the pipeline against the will of the Tysons down the valley who want it. I do not deny Billy-Bob his agency or his human rights, but they do not include his right to reduce our GNP because the moral equivalent of his teddy bear told him so, or because his ancient clan animosities require him to oppose whatever project the tribe of ancient enemies over the next mountain range favours, nor even when he believes a pipeline is not in his interest.

We invented statehood for a reason. One of the main ones was to bring an end to the power of local lords.  Canada should not be prevented from being a state because Billy-Bob Delgamuukw thinks he is heir to the Winged Serpent, the Holy Grail, the Revelations of the Spirit Bear, or the Second Attention. He is just a guy living in the woods. He has been consulted, and he doesn’t want a pipeline. Too bad. Buy him out (at a reasonable price) and build the thing.

 

 

 

 

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Pity Earl Muldoe, probably now deceased, that his name and chieftainship designation would prove to be such a sorry precedent. The Earl I knew was quiet and considerate, and would probably deeply regret what the “Indian Industry” has done with his gambit for a bit more control over “Delgamuukw” lands. Earl and many of his generation felt that the Canada they loved was mishandling Indian Affairs and, for lack of a better offer, tried to do it their own way. Altogether a major fustercluck with all parties refusing to consider that Indigenous people are no less capable of managing their individual affairs than any other Canadian. After centuries of paternalism we now owe them reparations for what Ward Of Government has done to destroy their faith in themselves and their country. I am in full agreement with the above article; there never was a reason to “help” the indigenous people other than that liberals reflexively do unto others for the other’s own good.

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