Friday, 10 April 2009

Anarchy: an exploration of alternatives to the status quo - November 29, 2007

Intro: I wrote this paper as a brief exploration of resistance models available to our nations. I have always found it difficult to navigate within the Indian Act band governments and if passed, a treaty government will still be an extension of this dependency that breeds corruption and works for the very Canadian governments that have and continue to support the theft of our lands and benefit directly from its exploitation. This should not read: lets devote more resources to 'economic development' in large scale exploitation of natural resources ourselves. Rather, we should focus our attention on realizing and strengthening our collective identity as Kwakwaka'wakw by actively discussing it within our communities, incorporating Western ideas that are a net-benefit to humans and the animal kingdom, while ignoring those that do not (heavy economic exploitation and disparate wealth distribution that favors the already rich and those in power). I sincerely hope it encourages debate on these alternatives.
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This paper will briefly highlight the Anarchist critique of Statist forms of governance. Several examples will provide the Anarchist critique of Statism in all forms as well as the effectiveness of each argument. Kant will be used as an example of liberal-capitalist thought, which views the State as a necessary form of coercion to achieve the noble purpose of Perpetual Peace. Marxism will represent communist thought, which views the bourgeoisie as hindering the ultimate progress of man from a capitalist State to one of Communism. This revolution would first involve the ‘dictatorship of the proletariat,’ but eventually would lead to a classless society ruled by the working classes.

Violence and coercion is central to all forms of State structures and based on the false foundation or ‘manufactured ‘consent of the people. Anarchy is opposed to the existence of the State altogether. The use of violence in revolution as advocated by leading Anarchists, however, should be avoided in favour of a more Prefigurative movement, which factors in the ends and means of its actions. During a violent revolution it will be difficult to decipher when the State and its underlying support have been defeated and since forms of domination and coercion will always challenge Anarchism, this could lead to perpetual war. The possibility of constant violence will drive people away from supporting Anarchism and endorsing it only serves to confirm State propaganda that frames the movement itself as a terrorist organization bent on violence and destruction. Another way must be found in which to resist coercive forces by taking the power from the State and returning it to the people. This will be viewed through its affects on Indigenous peoples of the world as they struggle for self determination under the oppressive States occupying their territories.

Indigenous peoples are increasingly rejecting the legitimacy of colonial governments and are returning to traditional forms of governance. Each nation has their own distinct governance structures which contain anarchistic tendencies, which can include minimally or non-coercive forms of governance, consensus models of decision-making and a profound respect for individual self-determination. History has shown that nation-States are structurally unable to change their coercive ways and accommodate Indigenous peoples on their own terms. Since violent revolution is morally wrong and also militarily unfeasible for most Indigenous peoples, alternative ways of reclaiming Indigenous self-determination must be explored. Ultimately, total non-violence may work for situations in which the majority of a country sympathizes and participates within the struggle, but it is arguable that the same does not apply to the world’s Indigenous peoples who, for the most part, find themselves the minority in their own lands. Since the main aim of the colonial State is the control of Indigenous lands, backed by the use of extreme force, complete non-violence would only seem to unfairly invite more suffering to already downtrodden peoples. It is from here that the Anarcha-Indigenist movement called Wasáse will be introduced as an alternative solution to the violent resistance found within Anarchist thought.

The Statist argument is that the historical development of man has brought us to our current position and the ultimate end-point, be it perpetual peace or communism, is the last step on man’s journey to enlightenment. Each claim their way of viewing the world, be it through man’s unsocial sociability or the bourgeoisie’s exploitation of proletariat labour, is the proper way of identifying all of history preceding them and the anticipated inevitability that follows. Anarchy works to expose the structural limitations the theories have placed themselves within. The immense diversity of group affiliations and self-identified nations seems to contradict any limitation or definition of a predetermined historical path, especially when limiting critical thought only to European nation-States. Rather, it seems to point to the immoral acts, backed by Euro-centric theories that assume there is a hierarchy of man placing them as a superior race of people, therefore giving them dominion over other nations. Ironically, these various States believed their crude actions were in the name of civilization.

Liberals believe there can be no freedom without the State and that everyone must give up some of their freedom in order to ensure protection under the law. For them the “only alternative to this pact is to be abandoned to a nasty, brutish, life of deadly competition over the means of bare subsistence.” Marxists see the State as a tool and the ultimate governance structure in which to seize power from the Bourgeoisie and thereby freeing the working class from its exploitation, but as the Anarchist critique goes, the new working class is only to become another ruling class with absolute powers over its population and history seems to proves this correct. Anarchists believe that freedom can only be realized by eliminating the State.

Capitalists support and protect the State’s institutions with the idea that change can happen from within. Kant believed that the State was instrumental to achieving Perpetual Peace. In order for mankind to realize this peace, he must make a “decision to renounce his brutish freedom and seek calm and security within a law-governed constitution.” Underlying this seemingly worthy goal of world peace is extreme coercion and domination of citizens by their States as well as the continuous disruption of nations outside of the State. These disruptions operate under the premise that Europeans have a duty to ‘civilize,’ which includes forced trade and commerce with subsidized industries, enslaving labour, and a heavy focus on individual liberty at the expense of community. In response to the resistance of these international ‘rights,’ States use force and coercion. This serves to enrich Western countries instead of the local economies based on self-reliance.

Kant argued that the State must treat its people as inherently bad or that there needs to be a level of coercion on all to ensure ‘freedom’ to all. These controls tend to favour the elite and ruling classes of society over others. Kant believed the State operates on the hypothetical consent of its citizens. That full agreement can never happen within a country; therefore, the legislators must create laws with an eye to what a fully rational man would consent to. This arbitrary use of power in the name of rationality, even when the people protest, is a dangerous use of power. Richard Day notes that “given the generative powers claimed for it, the state so conceived does not in fact give anything to its citizens; rather it takes away something that should be rather precious – their ability to govern their own lives.” Anarchists generally believe that people are inherently good and cooperative with each other and that the use of coercion must be proven to be for the common good of all people. When critiquing the liberal structure of governance within a representative government “Bakunin saw that the ‘representative system, far from being a guarantee for the people, on the contrary, creates and safeguards the continued existence of a governmental aristocracy against the people.’” This is despite the belief that liberals believe that this system, in which the vast majority delegates its power to a few people, is termed ‘democracy.’

Through sophisticated labour management techniques, the bourgeoisie are disintegrating the very class distinctions that gave it stability in earlier times, yet Marxists are still trying to call for class solidarity. So instead of creating real change from within State institutions, Marxist parties become just another voice fighting for the rights of workers, becoming an ineffectual counterbalance in western societies instead of a revolutionary force. Upon criticizing authoritarian socialism Bakunin states, “I am not a communist because communism concentrates all the powers of society and absorbs them into the State, because it leads inevitably to the centralization of property in the hands of the State, while I want to see the State abolished.” Despite objections by Marxists to the ‘top down’ criticism of revolution through a highly centralized structure, even with a temporary socialist government with elected officials or party members, the proven coercive consequences of such governmental powers within a segment of the population has lured previous socialists to support State oppression under the guise of socialist ideals. Lenin and Mao are not considered true socialists by Marxists, yet the pull of its theory towards these corrupted ends still bases its foundation within Marxism and must be addressed. Marxist theories have not yet been able to prevent the dictatorship of the proletariat from keeping the State’s coercion and control mechanisms in existence for its own privilege and survival.

The State relies on violence and coercion to achieve its ends. It should be noted that all three schools of thought presented advocate violence either in maintaining the State structures against threats or by use in revolution. Kant argued for the use of force when protecting the State’s institutions and Marx believed that violent revolution was the only way to commit real change within a country.

Kant expected State violence because of man’s ill disposition toward one another. Also the need to suppress citizens and colonies is just because if fully rational, he believed that these laws and coercion would be agreed to. Kant believed violent revolution or rebellion toward the head of State and therefore its laws, is morally reprehensible and punishable by death. He believed in the pacifying effects of the legal order, which he attributed to the attainment of Perpetual Peace. Kant argued against the use of force by rebellion because “it denies government the right to govern…therefore [it is] self-contradictory and renders the existence of the state impossible.” Ironically, this does not explain why generations of people have to suffer the consequences of unremitting war until Perpetual Peace is finally achieved. Kant believed that coercive laws are irresistible because if not through imposed laws the same effect would come from outside the state through war and it is in the citizen’s interest to obey laws instead of fighting in wars.

When the Marxist revolution replaces the Bourgeoisie with the ‘necessary dictatorship of the proletariat’ it automatically becomes the ruling elite through the extensive use of bureaucracy, which has a highly centralized form of control over its population. Engels argues “that force will perhaps be necessary for the overthrow of an economy based on exploitation — unfortunately, because all use of force demoralizes, he says, the person who uses it. And this in Germany, where a violent collision — which may, after all, be forced on the people — would at least have the advantage of wiping out the servility which has penetrated the nation's mentality.” This seems to position violence in a positive light, as if to say that with their immanent victory over the Bourgeoisie, their demoralized mental state will be addressed at the insignificant price of thousands of labour exploiters!

Anarchists that endorse violence believe the only way to eliminate the State is through its destruction. Anarchy opposes coercion, but the use of violence in revolution should be avoided. Instead consideration of the ends and means of the actions in revolutionary practice should be explored. In the face of consistent Statist pressures, Anarchists will require constant defense against military attacks and coercive tactics by the State. Ambiguity is abound when using violence as self-defense because there is no distinguishing characteristic in the heat of battle when self-defense turns into an ‘eye for an eye’, which Gandhi famously replies, ‘makes the whole world blind.’ Once people start using violence it becomes very difficult to stop because violence leads to more violence and Anarchists will have a hard time deciphering whether the opposing powers are coercive or a legitimate threat in maintaining security. Since Anarchy is anti-State, it follows that the basic tenet of the State, that of violence, should be opposed as well. By advocating violence, the Anarchist movement may be in danger of becoming the very evil it is fighting against. To prove that man can work together for the common good or the ‘mutual aid’ of one another, it would be contradictory to achieve these ends by means of violence. Also, it would be easy for the State to counter a violent Anarchist revolution if attacked because the people would be easily convinced that the only way to guarantee protection against the unknown, the Anarchist terrorists, is if they got behind its military might. With the world’s Indigenous peoples still internally colonized within States, a new approach that rids them of the oppressive actions and opposing worldviews needs to be explored.

An Indigenous approach to resisting the State through a form of non-violence will be shown through Taiaiake Alfred’s Wasáse, a movement that combines elements of anarchistic theories with Indigenous ways of being. There is a growing resistance to the internal colonization of Indigenous peoples. Taiaiake’s movement is built upon a spiritual foundation that can set communities free from the State’s subtle but pervasive attacks on Indigenous identities. This emerging movement has “found common ground in the rejection of arbitrary authority, a preference for direct action and local, consensus-based decision-making processes, and the use of non-statist federations to link communities and nations.” This mode of resistance is imperative to any long term success and survival of Indigenous peoples.
According to Taiaiake, “being Indigenous means thinking, speaking and acting with the conscious intent of regenerating one’s indigeniety.” It is important to rebuild a strong sense of community identity before addressing the oppressive colonial State. Without this Indigenous peoples are “building not on a spiritual and cultural foundation provided to us as the heritage of our nations, but on the weakened and severely damaged cultural and spiritual and social results of colonialism.” Alfred advocates focusing Indigenous resources to rebuild and strengthen our own communities.

Based on moral principles of traditional teachings, Indigenous peoples need to challenge the State and assert their rights, instead of depending on the State to grant them. This can be done by creating cultural space free from State interference. This space from State domination can be conceptualized by Hakim Bey’s theory of Temporary Autonomous Zones (TAZ). The TAZ theory concerns itself with the temporary space created by its participants who are free from the domination of State control and interaction. The TAZ model of social change does have its limitations when applied to Indigenous struggles; the obvious being the explicit non-permanence of Bey’s theory contrasts with Indigenous peoples’ intimate connection to their territories and because “an indigenous anarchism is an anarchism of place,” it demands a more lasting presence within this theoretical framework. To escape the State’s determined targeted destruction of any autonomous space that withdraws power from the neoliberal order, total non-violent permanence is a current improbability that must be addressed. Day criticizes Bey’s TAZ applicability to identity groups, stating that perhaps it is “a little too reliant upon what seems to be an ethos of fleeting, individualistic encounters…amenable to young White men with no attachments to such banalities as partners, children or broader communities.” Day expands on the TAZ concept through the Semi-Permanent Autonomous Zone (SPAZ), which “allows the construction of non-hegemonic alternatives to the neoliberal order here and now, with an eye to surviving the dangers of capture, exploitation and division, inevitably arising from within and being imposed from without.” Being Indigenous here and now is a central component of Wasáse and creating space free from State domination allows Indigenous communities to build a strong sense of identity long distorted by colonial regimes. This move will be opposed by the State and, since Indigenous peoples are deeply connected to their land, will need to be defended when challenged.

Since the space free from State coercion is minimal, Wasáse must work to challenge the State’s claim to legitimacy. This is done through active resistance, but not through the aggressive use of violence. Taiaiake terms this approach “non-violent militancy” which he calls for during the process of decolonization. He argues that “revolutionary struggles using direct armed confrontation have failed to stop capitalism’s expansion.” He further argues against the use of violent resistance by pointing out that [v]iolence forces people to choose sides, and because it is repugnant to so many people, it causes them to disavow the cause; it limits potential allies; and it is as addictive as a drug – its immediacy and paraphernalia are seductive and intoxicating in the short term, and in the long term, the inevitable cycle of repression creates a situation justifying further violence.” The negative consequences of violence cause too much damage to Indigenous communities to make it worth engaging in the first place, but the moral imperative of culturally strong nations will also force Indigenous warriors to address their actions.

When analyzing violence that causes suffering as morally wrong Taiaiake points out that “the responsibility for violence begins and ends with the state, not with the people who are challenging the inherent injustices perpetrated by the state and who are seeking to alleviate their own present suffering under the state’s existing institutions and practices.” Through this ‘non-violent militancy’ Taiaiake advocates the resistance of the authority of the State’s institutions, through non-cooperation and challenging the legitimacy of the State itself through Gandhian tactics such as “civil disobedience, boycotts, strikes, sit-downs, and sit-ins of all kinds, protest marches, and rallies.” Although acknowledging Gandhi’s circumstances were different, Taiaiake nevertheless advocates Gandhian tactics in Indigenous resistance.

Perhaps where his military training kicks in however, is when he argues that taking up arms is ‘certainly necessary, only because we must protect ourselves from violent attack and survive in a physical sense, but we should have faith in the power of our ideas and in our abilities to communicate our ideas without resorting to the mute force of violence…” It matters how violence is approached. It should be used as a last resort to the defense of physical survival and never before. The non-violence approach should be central in the movement’s contention of State legitimacy and its authority.

Anarchy effectively challenges the coercion and existence of the State. It highlights the arbitrary use of its power to force its own citizens to obey laws skewed in favour of the ruling elite. Kantian ideals of strengthening and seeing the State as the only vehicle in which to achieve a higher purpose, that of Perpetual Peace, has proven to be a fundamentally flawed perspective based within a limited Eurocentric superiority complex suffered by so many ‘enlightened’ scholars before him. Marx also tried to encapsulate his theory within a historical framework. He believed that the only way to free the working class from their exploitation is to band together and overthrow the ruling elites. Unfortunately, Marx believed that the ‘dictatorship of the proletariat’ was an effective vehicle to achieve a classless society. In reality, the State itself corrupts any ruling group with the amount of power it possesses. This is especially true of the highly centralized Communist State. Anarchy is free from these bonds with its theoretical framework, but has its challenges to overcome.

Despite Kant, Marx and the Anarchists Bakunin, Proudhon and Kropotkin advocating violence as a means, modern theorists increasing have looked into non-violence as a viable means of resistance for their cause. None of the previously mentioned theorists could have imagined the huge success in the mobilization of India’s population against the mighty British Empire through non-violent resistance. By utilizing Gandhian approaches, Taiaiake advocates Wasáse, an Anarcha-Indigenist movement aimed at ridding Indigenous peoples of their oppressed circumstances. The exploration of answers within the system has been exhausted to no real end; rather we have seen a further entrenchment of peoples within an oppressive system. Movements like Wasáse offer realistic hope to nations looking for an alternative to the status quo. Through non-violent contention, these Indigenous nations may be able to find a way of effectively resisting the colonial State and free themselves from oppression. A path toward freedom based on their own collective self-determination.

Bibliography (Footnotes in original):

Alfred, Taiaiake and Jeff Corntassel. Being Indigenous: resurgences against contemporary colonialism, Blackwell Publishing: MA, 2005.

Alfred, Taiaiake, Glen Coulthard, and Deborah Simmons eds. New Socialist: Special Issue on Indigenous Resurgence. No. 58, 2006, 26-7.

Alfred, Taiaiake. Wasáse: Indigenous pathways of action and freedom. Broadview Press, 2005.

Andrew. “The Zapatistas, anarchism and ‘direct democracy.’” Anarcho-Syndicalist Review, (1999), 27 .

Aragorn!, “Locating An Indigenous Anarchism” .

Chomsky, Noam. “An Exchange on Manufacturing Consent.” In Understanding Power. The New Press, 2002.

Couch, Jen. “Imagining Zapatismo: The Anti-Globalization Movement and the Zapatistas”, Communal/Plural. 9:2, 2001, 243-260.

Day, Richard. Gramsci is dead: anarchist currents in the newest social movements, London; Ann Arbor, MI: Pluto Press; Toronto: Between the Lines, 2005.

Guerin, Daniel. Anarchism, Monthly Review Press, New York, 1970.

Humphrey, Ted. Kant Perpetual Peace and other essays, Hackett, Cambridge, 1983.

Kant, Immanuel, and Hans Siegbert Reiss. Kant: Political Writings. 2nd, enl. ed. Cambridge England; New York: Cambridge University Press, 1991.

Kropotkin, Peter. Mutual Aid: a Factor of Evolution, 1902.

Malatesta, Errico. Life an Ideas, 142.

McLellan, David. “Marx to Weydemeyer, 5 March 1852.” Karl Marx selected writings.

Mohandas Karamchand, Gandhi. My Experiments with Truth – the autobiography of Gandhi.

Wednesday, 25 February 2009

Another opinion about the Tsawwassen Treaty signed.

Discussion on both Tsawwassen and Nisga'a Final Agreements. I encourage all to look into the possible agreements that 'Namgis members would be presented with. The "bargaining" the government does is based on an unmovable equation that gives more-land-less-money or more-money-less-land (all valued before negotiations start). Land which will see us sign away over 90% of it with the "more-land" choice. Why are we borrowing millions of dollars that we have to pay back and at the same time giving them 90% of our traditional territories? The Nisga'a are now paying taxes for the land that they all owned outright. Do we really want to give our band chief and council more power with our own scarce money supply through taxation?

The letter below by Bertha Williams has been reposted from Stephen Reese's Blog HERE.

To view an interview with Bertha Williams HERE.
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A dissenting voice is raising serious concerns about how the Province of BC is seeking to influence the key vote of the Tsawassen First Nation on the treaty that would make port expansion possible.

A substantive piece from the Province newspaper - the only one that prints on Sunday. It’s a tabloid but it gave Bertha Williams’ letter to the Premier and the Prime Minister some prominence. And Damien Gillis has produced a short video so that Bertha’s own voice can be heard.

There is definitely something not right about a process which first of all still has some court proceedings under way after the privatization of the rail spur that is crucial to the plan had to be stopped, because of a corrupted process. And now the province getting involved in using public funds to try to make sure it gets the vote it wants.

The idea that BC needs to secure a greater percentage of the cross pacific container trade is itself dubious. But the lengths to which the BC Liberals seem to be going to ensure that they get what they want leaves a nasty taste. The original Roberts Bank terminal put an end to the TFN’s traditional way of life. The environmental impact of this new expansion - removing the mitigative measures put in place to lessen the impact of the existing port facilities, seems to make a bad situation worse. And it is hard to see that the economic benefits for BC as a whole - or even the region - are worth this kind of impact.

Bertha Williams on TFN Vote (from the LRC General email list) updated July 19, 2007

The hand of skullduggery is at play. The chief and council of our band are bouncing around like rabbits after a carrot on a string that the federal and provincial governments are dangling. They use such trickery as an enrollment application? In order to vote on the treaty. In the application is a section where we have to relinquish our right to claim. If we don’t enroll, we are not allowed to vote. This would pave the way for a more secure “yes” vote. This is an infringement on our sovereignty as first nation people. Our native status is handed down by our forefathers, which I do not believe may be voted on by other band members, may not be bartered by a treaty team, or taken by any government. Our birthright has to be surrendered by the holder. If this is not true, then why do they resort to such extortion tactics as to blackmail the native population out of their unique status. Once this is proven, and the treaty is pushed through, then it will not be worth the paper it is written upon. Past and present governments realize we are the true owners of the lands where our ancestors thrived. What better way to usurp the people of their position then to utilize the greed or ignorance of our leaders. Which ever it may be, it shows gross incompetence and they should be immediately removed from office.

Another scheme in their bag of tricks from the Tsawwassen First Nation, to witness first hand the prosperous Nisga’a Agreement. One should only imagine the perfect picture that will be painted. What they will not show is that after seven years of treaty, 70 to 80% of the Nisga’a people are on social assistance. And, that the young men have to travel from their homeland, as far away as Calgary in search of employment. Also, will not speak of pending lawsuits and investigations of the misappropriation and mismanagement of funds. So much for prosperity at home! Now the Nisga’a descendants may look forward to possible expropriation when the tax kicks in
next year, and is in full swing 12 years from their signing in 2000. The Tsawwassen treaty will only ensure the demise of our people, where the fat cats have been feeding for the past 14 years of negotiations. To enable an extra jingle in the deep pockets of the already rich. The Tsawwassen treaty wished us to surrender our traditional territory, our right to claim from our inheritable status, and for that we will receive 0.2% of our lands and have the opportunity to pay taxes on our own lands. Something sure stinks with this deal! Speaking to a TFN elder she said “the treaty is a short term gain for a long time misery!” They may shove this treaty down our throats today with their conniving schemes, but tomorrow our case will be proven that they never had the authority to bargain away our birthright. Accountability will be made to the aboriginal peoples and the healing process will begin.

Yours truly,

Bertha Williams
(604)943-9470

Tuesday, 13 January 2009

Tsilhqot’in (Chilcotin) Landmark court decision

I asked a Tsilhqot’in friend to write about the how the court decision impacted his people and by extension all negotiating Kwakwaka'wakw Nations under the BC Treaty process. Russell is finishing up his Masters thesis in Indigenous Governance at the University of Victoria. His response is broken into several sections that outline the court case, how it impacts the BC treaty process and finally Russell's personal reflection on the subject. I want to extend my gratitude for this important piece of writing. It will be helpful in further understanding our position as a Nation negotiating under a illegitimate treaty process.
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To Chiinuuks & people of the land

I want to express my thoughts and share information concerning two divergences that have yet to converge. The BC Treaty Process and the Supreme Court decisions resemble two routes to playing politics in trying to gain recognition for the land that we still belong. While the province of BC holds onto power and its identity as colonizers, the Supreme Court decisions are attempting to get meaningful negotiations on track.

I am Tsilhqot’in. I have followed the stories and recent activities of my nation. In 1992 Xeni leaders established a road block to preserve the forests along the Tsilhqox and Dasiqox (rivers) from unsustainable logging practices. Soon afterwards, the Xeni people were rejected by the provincial government in attempts to creating a management plan to protect hunting and trapping in the area. As a last resort, the Xeni Gwet’in sought the courts to gain access to managing the land.

Meanwhile, the provincial government told the Tsilhqot’in they would only consider co-management of the forest if the nation settled through the BC Treaty Process. However, as Tsilhqot’in, we have maintained that we cannot allow a thief make a judgment of its own theft and therefore legitimize stolen lands.

In November 2007, BC Supreme Court Justice Vickers issued his decision on whether Aboriginal Rights and Title exists within the Xeni claim area. Although the declaration failed on a minor technicality, thus not making the decision legally binding, the text concludes that Aboriginal Title does exist in 50% of the land claimed or about four thousand square kilometers. In addition, although Aboriginal Title possesses a test (as provided in the Delgamuukw decision), Aboriginal Rights was found to exist in 100% of the area claimed.

A year has passed, and while Nenqayni nations (Nenqayni meaning ‘people of the land’) have claimed a small ‘victory’ in affirming and recognizing rights and title, it is apparent that our nation is struggling with settlers, governments and corporations to fully understand the significance of what this means. In October 2008, the BC Provincial government failed miserably to offer anything substantial in an initial-agreement, and it was rejected. Meanwhile, the Federal government remains silent. And the lack of progress invites the nation to return to the Courts through the Appeal process to render the technicality.

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Now what I wanted to present was the ways in which I thought this court decision would shake the whole province, especially for the BC Treaty Process. What is significant in the Tsilhqot’in court decision is the way in which it frames meaningful negotiations, granting Nenqayni nations more leverage.

First and foremost, Justice Vickers is re-asserting the need for nation-to-nation negotiations with the Federal government. I believe this is done in respect to the treaties that have been conducted all across Canada – this is an established legal norm where Nenqayni nations dialogue with the Canadian State, setting up treaties as international arrangements. I am making no comment on if this is better, as I see the species of one coyote and two coyote as very similar, but the reason for this is groundbreaking.

Aboriginal Title is akin to fee simple private lands, although held collectively. Because Canada is responsible for “Indian” lands, Aboriginal Title falls into their jurisdiction. This means that all provincial government legislation is absolutely void, possessing no jurisdiction on Aboriginal Title lands: the Forestry Act, Mining Act, Licenses, Permits, etc. Moreover, the provincial government cannot extinguish actual or potential Aboriginal Title lands; only the Federal government has the power to do so. In addition, private lands held by settlers are not exempt from being Aboriginal Title lands. This is quoted several times in Judge Vicker’s court decision:

[997] Given that the jurisdiction to extinguish (Aboriginal Title Rights) has only ever been held by the federal government, the province cannot and has not extinguished these rights by a conveyance of fee simple title to lands within the Claim Area: see Delgamuukw

[998] Thus, regardless of the private interests in the Claim Area, those interests have not extinguished and cannot extinguish Tsilhqot’in rights, including Tsilhqot’in Aboriginal Title.

[1047] I am aware of the serious implications this conclusion will have on the British Columbia. However, I agree with Professor Kent McNeil when he explains that long established principles have been conveniently ignored. At p. 194 of “Aboriginal Title and Section 88 of the Indian Act”, he states:

Ever since the Catherine’s Milling Decision in 1888, it has been apparent that exclusive federal jurisdiction over “lands reserved for Indians” might well include jurisdiction over Aboriginal Title lands. So in acting as though it had constitutional authority over Aboriginal title lands in British Columbia, the province has skated on thin constitutional ice for over a century. In reality, it appears that the province has been violating Aboriginal Title in an unconstitutional and therefore illegal fashion ever since it joined Canada in 1871. What is truly disturbing is not that the province can no longer do so, but that it has been able to get away with it for so many years.

The BC Supreme Court is commenting on the BC government’s inadequate position of denial, and in almost every account, explaining why the BC government is wrong. Moreover, the court decision suggests that the BC government has never possessed jurisdiction over Nenqayni lands. This analysis may also be extended towards the BC Treaty Process.

From one perspective, the principles guiding the BC Treaty Process have not changed in lieu of the recent BC Supreme Court decisions, decisions which continue to acknowledge and (re) affirm Aboriginal Title and Nenqayni nations as the proper right holders of the land. For example, the Haida, the William, the Delgamuukw cases all exemplify Aboriginal Rights and Title that have been ignored, misrecognized, infringed, and laws that have failed to give Nenqayni the meaningful ability to manage and benefit from the land that they belong to. So while the courts uphold the laws protecting Nenqayni interests, the BC government continues to deny Aboriginal Rights and Title – or diminish the significance of these rights.
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In the William case (2007) concerning the Tsilhqot’in, the BC Supreme Court suggests that the reconciliation through treaties is the proper avenue to address historical injustices. There is no doubt that the court room is ill-equipped to mediating two sovereign claims. McLachlin’s notes in the Haida case that “Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty” and to guarantee rights that are guaranteed. In addition, the Supreme Courts continue to refer to “the Honor of the Crown” in securing and protecting Aboriginal interests that are being negotiated, claimed or proven.

So in understanding all of this, the BC government and the BC Treaty Process is unable to address or negotiate the historical injustices, the fact that there is no consent or legitimacy in Crown sovereignty amongst Nenqayni, respect rights and title that is guaranteed, or act in preserving the land that is in question. Why? This requires serious justification.

What is also significant in Judge Vicker’s response is that he applies the critics who have reflected most on the ill approaches that the provincial and federal governments have advanced. Take John Borrows’s disdain for the courts and governments in their ideas of reconciliation:

[1342] …Courts have read Aboriginal rights to lands and resources as requiring a reconciliation that asks much more of Aboriginal peoples than it does of Canadians. Reconciliation should not be a front for assimilation.

Reconciliation should be embraced as an approach to Aboriginal-Canadian relations that also requires Canada to accede in many areas. Yet both legislatures and courts have been pursuing a course that, by and large, asks change only of Aboriginal peoples. Canadian institutions have been employing domesticating doctrines in their response to the [Royal Commission on Aboriginal Peoples]. This approach hinders Aboriginal choice in the development of their lands and resources, rather than enhancing it.

Take Gordon Christie’s emphasis on the role of the courts:

[1358] …The practical outcome of this should be clear – this should bring the governments of Canada to the negotiating table, and would give Aboriginal peoples the sort of strength they need to work out a fair accommodation, a resolution of the ills caused by centuries of colonialism. This is as it should be, for from the perspective of the theory and principles underlying the superstructure of Canadian society and Canadian law there is no other way to work out an appropriate place for Aboriginal peoples in contemporary society. For Canada to advance to maturity, for the social compact to welcome within all those currently living within Canada’s geographic boundaries, Aboriginal peoples must be able to bargain their way into a fair constitutional contract. This can only happen with the recognition on the Canadian side of the table of the position occupied by Aboriginal peoples: they come to these negotiations in the same state they were in 500 years ago, as organized societies existing prior to the assertion of Crown sovereignty, societies organized according to separate and distinct conceptions of the good and of how to lead good lives.


Over and over it is stated that reconciliation must be conducted by the federal legislative authority in regards to its constitutional responsibilities. The BC Treaty Process continues to relegate Nenqayni nations into a domestic position within the Canadian framework. The process seeks to extinguish land that is not in their power to extinguish.

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What does this mean for the BC Treaty Process?

1. Negotiating Treaties should not be conducted by the Provincial government.
2. The Canadian federal government and Nenqayni nations should be relating to each other on a nation-to-nation basis. Therefore, recognition of this international status would provide a starting point towards looking at each other as equals.
3. Treaties can embrace the constitutional recognition of Aboriginal Title or Rights, section 35. Extended from this, Nenqayni nations resemble proper holder of generative land rights that pass over time.
4. Land that is recognized as Aboriginal Title should be rendered ineffective by provincial government legislation. Therefore, the Mining Act, Forestry Act, permits and licenses, etc. do not apply.
5. Aboriginal rights exist within 100% of the territory to which the Nenqayni nation belongs (fishing, hunting, trapping, etc.), requiring the duty to consult and possibly accomodate when Nenqayni interests (i.e. potential infringements) are concerned. ‘Modified’ rights diminish constitutionally recognized rights.
6. The extinguishment of land should not be the government’s primary legal initiative; land should be shared (the idea of rights attempt to address this); guidelines on how to accommodate rights and interests should be established.
7. There should be no absolute limitations placed on negotiations – negotiations should allow for free negotiation; in this case, private lands are not exempt.
8. Reconciliation should include full acknowledgement of historic injustice to make applicable action plans to directly address those injustices (land thievery and damages, violating grave sites, residential school abuse, etc.).


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Personal Reflection:

I chose to write to show how there is some leverage in the court arguments that allow Nenqayni nations to advance in this colonial game of denial. While Nenqayni continue to succeed in the moral and legal fronts, honesty and respect remains absent in the political arena. Nenqayni are dealing with an enemy that does not even respect its own laws. If it did, the BC Treaty Process would change its principles to honor the conclusions that come from these successive court decisions.

I continue to be extremely weary of the BC Treaty Process and its effects on all Nenqayni within British Columbia, especially internally within each community due to the lack of dialogue and divisions the process creates, but also to the external, where the energy in forming Nenqayni alliances with each other has diminished in favor of trying to gain resources or seeking recognition from colonial governments who want to relinquish their responsibility and limit our autonomy.

I am also weary of the Court decisions, as lawyers have perpetuated a language game that ultimately neglects the full incorporation of Nenqayni philosophies and language. The failure of both these processes lies in the fact that, as institutions, they do not receive Nenqayni legitimacy due to the lack of participation, understanding and consent with the people/land that it will affect for years and many generations.

Again, the Tsilhqot’in court case offers political strategies that challenge the provincial government; it illustrates the various ways in which the BC government is wrong. It is our responsibility to hold them to account. So while the courts slowly transform their colonial biases, the BC government retains its rigid and static view, greedily clutching its dominant position over Nenqayni, exemplified perfectly by the conservative BC Treaty Process and its inability to change.

As a last word, my position is not final; I am always open to critique, as I only hope to contribute to a healthy dialogue concerning the fate of Nenqayni land. My email is rossr@uvic.ca

Sechanalyagh, thanks


Russell Samuel Myers Ross