Archive for : December, 2016

What are the Rights of Conquered and Colonized Peoples?

The Crown (in its democratic emanation) owns all real property in Canada, in that it has the final say on its use through the instrument of expropriation, justified by the doctrine of eminent domain. Individuals and corporations may use and trade property rights, but these rights exist on sufferance of the Crown. The Crown may cede rights as well, as it does through Treaties with Aboriginal Peoples.

Many aboriginal people hold that all land in Canada was theirs to start with, that much of it has never been ceded to the Crown. In this view, the default understanding should be that the land belongs to aboriginal peoples, that the Crown and private citizens use real property on sufferance of the original peoples.

The matter is justiciable. Some recent Supreme Court decisions seem to assert aboriginal title to traditional lands, but such title is not greater than Crown control over the land; nonetheless, communities and/or nations need to be consulted and compensated for use of their land.

Those Supreme Court decisions are – appropriately – based on the legal system that is run by the Crown. From that perspective, the ultimate power rests with the Crown, which grants extensive but limited title rights to aboriginal communities. However, if the land is rightfully the domain of aboriginal communities, then in a moral sense the Crown continues its unjustifiable dominance over land not rightfully pertaining to the Crown.

The United Nations Declaration on the Rights of Indigenous Peoples asserts that indigenous peoples have equal rights to those of colonizing peoples, and also asserts their right to belong to their own nation. However, the Declaration does not assert that indigenous peoples have rights to traditional lands over and above those of the conqueror or colonizer. The fait accompli is accepted.

Let us assume that the formal assertion of Crown ownership of Canada lands begins in 1763 with the Royal Proclamation of George III (although there was a treaty 60 years previous, with the French). In various Treaties, the Crown grants rights to Aboriginal Nations, many of which are still honoured today. Treaty language, it is said, often reflects an understanding of aboriginal views on land ownership. However, the underlying assumption in such treaties is that the Crown has granted rights for the use of land that would otherwise be Crown land. So for 250+ years the Crown has in effect expropriated Canada.

The Crown engaged in expropriation with minimal use of conquest. This would be in contrast, as examples, to the Roman, Saxon and Norman conquests of Britain, or the Spanish conquest of Yucatan. There were in those cases no treaties, although the conquering culture allowed and adopted many local practices.

In a moral sense, are aboriginal ‘rights’ or claims over land *ever* extinguished by the continuous occupation and use by the conqueror or colonizer?

If we use the “no, not ever” response then life in this world becomes rather more complex. From my own ancestry, the original Scots have had land taken by Romans, Norwegians and English. Many times they fought and, most often, they lost. As peasants, many were forced to leave without compensation; many, many died. Have they rights? Do the descendants of pre-Roman or pre-Norman Britain have rights? If not, at what point and how did those rights become extinguished?

So many lands and peoples in world history have been overrun, I expect we would be hard pressed to find any nations which have no moral claims against those who did the overrunning.

One could make one key distinction between conquest and ‘benign’ colonization, based on the intent of the expropriation. The conquistador had no interest in the rights of the conquered. However, the ‘benign’ colonizer asserts that those colonized do have rights. There is a fair argument that the rights of the colonized exist regardless whether there was or was not a treaty: the treaty is just a legal instrument that formalizes expropriation. If there is no treaty, the expropriation continues to exist, but it is more like conquest than colonization.

Some would argue that the rights apply only to those who have been exploited *and* who are now living. But the sons and daughters of those exploited have had their futures and rights affected as well. After how many generations are moral rights extinguished?

Clearly the views of the colonizers and immigrants have altered over the decades. Assimilation of aboriginal peoples into Christian capitalist culture was considered a legitimate public policy goal long before Confederation. However, assimilation became a government policy and program with the 1876 passage of the Indian Act. Assimilation continued as a public policy goal, most notably through the residential schools system lasting until 20 years ago, but also through the continuance of the core of the Indian Act itself. In more recent years there has come some understanding among the colonizers about the denial of human rights implicit and explicit in colonization.

The Algonquin Anishinabe Nation has filed a land claim asserting ownership over lands in downtown Ottawa including the Parliament Buildings, the Supreme Court and LeBreton Flats. The claim is anchored with the principle that the Nation never ceded ownership of the land to the Crown. The Tsleil-Waututh Nation maintains that the proposed Kinder Morgan pipeline violates Tsleil-Waututh law and “deprives past, current and future generations of Tsleil-Waututh people of control and benefit of the land, water and resources of its territory[1]”




Is there a moral justification for conquest or colonization?


In a moral sense, are aboriginal ‘rights’ or claims over land *ever* extinguished by the continuous occupation and use by the conqueror or colonizer?


In what senses (if any) are the rights of aboriginal peoples in Canada distinct from those of peoples conquered/colonized in, as examples: Hawaii, the Yucatan, or England?


Given the presence and domination over decades, if not centuries, by conquerors or colonizers in occupied land masses, do the usurpers acquire moral rights through longevity of presence? What actions can usurpers take to increase or diminish their moral rights?


Is there a reasonable moral solution: (a) in theory (b) in practice?



[1] Scott Smith, lawyer for the Tsleil-Waututh, January 26, 2016.

Mystery Payments Cost Us Millions

We taxpayers are on the hook for $10 million in payments we cannot know anything about. Some secrecy might be justified in matters of national security, but these are payments from mainstream departments. The Public Accounts for 2015-2016 show two large ‘mystery payments’: one for $7.5 million, the other for $2.5 million. We know who made them – Natural Resources Canada and Justice Canada respectively, but we are not told – rather, we are not allowed to know – why they were made.

The Natural Resources Department was involved in a lawsuit which reached the Superior Court of Ontario. But we are not told what the lawsuit was about, who was suing whom for what, or why $7.5 million in taxpayers’ money was spent. We can assume that Natural Resources did something they shouldn’t have – since they’re paying a lot of money in recompense. But what we don’t know, and have no way to know whether they learned anything from the unfortunate experience. Please bear in mind that the basic principles of democracy include: the right to know how and why tax dollars are spent; and the Magna Carta right to public judicial proceedings. Neither of those principles has been honoured here.

Over at Justice, they spent $2.5 million to settle a case of malicious prosecution out of court. Malicious prosecution is a pretty serious charge: it requires not only that the original prosecution was known to be unjustified, but that the prosecutor pursued the case out of malice. That our Canadian Department of Justice would engage in such an activity is no small thing. And having been caught in nastiness, the Department chooses to hush it up. Fair enough that the person prosecuted has a right to privacy, but the act of malicious prosecution is an act of such surpassing ugliness that Canadians as citizens have a right to know that the Department has learned from and atoned for the experience.

Two actions by our government: one at least a very expensive mistake, and the other acknowledged as malicious. And we citizens and taxpayers are not allowed to know about either. Who thinks that’s right?