Douglas warned that failure to extinguish title and “the occupation of such portions of the Colony by white settlers, unless with the full consent of the proprietary tribes,” would be perceived “as national wrongs, engender feelings of irritation against the settlers, and endanger the peace of the country.” As the authors of a recent paper prepared for the Union of British Columbia Indian Chiefs explain, “Douglas estimated that it would cost 3,000 pounds sterling to extinguish title to the remaining settled districts of the Colony: He asked that the British Government extend a loan in the form of a grant to be repaid from the proceeds of consequent sale of public lands in the Colony.”43
The British government turned him down, and, as a result, most of the First Nations in British Columbia remained without treaties right up until recent times. A new treaty process was begun in 1993, under which tribes were supposed to give up their claims to certain land and occupy others in return for compensation. About a third of the tribes in British Columbia have begun the process, but not much progress has been made.44
And the future of such negotiations doesn’t look promising. According to Mark Milke, the author of a report for the Fraser Institute, a Canadian think tank, “After 15 years of negotiation with BC Indian bands at a cost of more than $1.1 billion, the province has only eight treaties that have either been passed, initialled or are in the final negotiating stage.”45 The report is titled Incomplete, Illiberal, and Expensive: A Review of 15 Years of Treaty Negotiations in British Columbia and Proposals for Reform, and Milke notes that “government representatives have taken negotiating positions that will lead to never-ending discussions and the creation of massive legal and regulatory bodies to support ongoing consultation. Effectively, this means the treaty process never ends.”46
Meanwhile the legal question of “Aboriginal title” is working its way through the courts as well: do First Nations have any claim to land that is not part of their reserves? After Calder, cases in 1984 and 1997 and most recently in 2014 expanded and solidified Aboriginal title as a concept in Canadian law.
Indeed, in 2014, in Tsilhqot’in Nation v. British Columbia, the Supreme Court granted title to First Nations on land that was off of their reserves. The Tsilhqot’in claimed that the government of British Columbia didn’t have the right to grant a commercial logging license on land that First Nations had occupied continuously for hundreds of years. And the court agreed.
Written by Chief Justice Beverley McLachlin, the unanimous ruling says that Aboriginal title “flows from occupation in the sense of regular and exclusive use of land. . . . Occupation sufficient to ground aboriginal title is not confined to specific sites of settlement, but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.”47
When I visited Kamloops several weeks after this decision was handed down, leaders of First Nations, including Manny Jules, were working furiously to come up with their response to this decision. How would it affect their willingness to participate in the treaty process? Would it change people’s support for the First Nations Property Ownership Act? If millions of acres of land were now in play, should First Nations really focus their efforts on gaining clearer title only to land on the reserves?
There was a great deal of disagreement among the leaders I spoke with about exactly what this decision would mean. In principle, it could mean that First Nations could claim the entire city of Kamloops, one of the top 50 metropolitan areas in the country. Would they be compensated by the tens of thousands of residents and businesses occupying land that First Nations once used for hunting? And which bands could rightly claim title? Some bands have claimed overlapping lands. Hunting lands in particular were hard to demarcate.
Although some Canadian Indians are hopeful that a claim to Aboriginal title will expand their claims on the land, others are concerned that this will only inject more uncertainty into the land question, which is the last thing that those interested in economic growth want to see. Though these disputes over land ownership and political autonomy have been around for more than a century, leaders of First Nations have good reason to want to see a resolution to these matters sooner rather than later. They know from numerous investors that the only way more money will flow to First Nations is if there’s some certainty about who owns and who’s responsible for the land on and off the reserves.
In their introduction to the book Beyond the Indian Act, Tom Flanagan, Christopher Alcantara, and André Le Dressay lay out the problems succinctly: “Aboriginal people are the least prosperous demographic group in Canada. In life expectancy, income, unemployment, welfare dependency, educational attainment, and quality of housing, the pattern is the same: aboriginal people trail other Canadians. And within the category of aboriginal people, another pattern also stands out: First Nations (status Indians) do worse than Métis and non-status Indians; while among First Nations, those living on-reserve do worse than those living off-reserve.” The future seems pretty bleak too. As the authors note, “These patterns have been more or less stable for decades. Aboriginal people and First Nations are progressing on most indicators compared to other Canadians, but the progress is painfully slow, and it will take centuries to achieve parity at these rates of change.”48
It’s worth noting the similarity of this situation with that of tribes in the United States. Observers often say that Indians are more visible in Canada because other racial minorities make up a smaller proportion of Canada’s population than America’s. In other words, the problems of blacks and Hispanics overshadow the problems of Indians in the United States.
But the land problems and the resulting government policies are at the heart of why both American and Canadian Indians are experiencing so many economic and social problems.
The reserve lands in Canada don’t have the “patchworking” problem that resulted from the policy of allotment in the United States. In Canada, bands themselves (as opposed to individual Indians) collectively hold much more of the reserve lands than is the case in America. But Canadian Indians still have the same underlying problem. First Nations technically have title to the land, but it can only be “alienated” – that is, it can only be sold – through the federal government, and, as Brock told me, “the Crown has a fiduciary duty to make sure the land fetches a fair price.”
But now the question is how to move forward. The first priority, Jules says, is to change or repeal the Indian Act. The Indian Act “freezes things in place,” notes Jules. It was “written when we were a dying people.” But if there’s to be change in policy at the federal level, First Nations need to be prepared to take over certain aspects of their own governance. If First Nations are eventually to be treated as another province – one possible outcome here – what tasks are they willing and able to take on?
The leaders of tribes in British Columbia commissioned a report looking at 200 different areas of governance. “We don’t want our own postal service or our own standing army,” says Jules. But they do want more responsibility for taxation and local services, including utilities and education.
One advantage that First Nations have over their American brethren is that they’re a significant political force. According to Canada’s 2006 census, Aboriginal Peoples compose about 3.6 percent of the Canadian population. Compare this proportion with only 1.7 percent in the United States.49 Because of their geographic distribution, Canadian Indians have significantly more political power as well. Indian politicians not only have been elected to Parliament but also hold the majority of elected seats in two provincial legislatures. American Indians, by contrast, have amassed no such power. And although they may be influential in, say, the election of a legislator from South Dakota, they’re not going to be able to sway many votes in Washington.
Also, the population of First Nations is growing rapidly. According to official estimates, between 1971 and 2011, it grew by 487 per
cent, while the total Canadian population grew by 52 percent. Although some of that growth is attributable to a greater number of people claiming Aboriginal ancestry, it’s true that the birth rate among Aboriginal Peoples is higher than among the rest of the population. According to the Canadian government, “Amongst the Aboriginal population, 46% of individuals are under age 25, compared to 29% for the rest of the Canadian population.”50
These numbers have started to make political leaders pay attention. In a book called Time Bomb, Doug Bland, former chair of Defence Management Studies at Queen’s University, argues that the conditions are ripe for an uprising by First Nations, whose economic and political aspirations have been stifled for so long. Bland foresees the potential shutdown of major means of transportation by protests and civil unrest. He told the Ottawa Citizen that he was “not predicting a revolution or an armed uprising.” But because the population of First Nations is disproportionately young and “concentrated in areas critically important to Canada’s resource industries and transportation infrastructure,” he said he sees the potential for a real standoff of some sort. He warns that a “confrontation” could occur if Canadian and First Nation leaders can’t solve some of their conflicts.51
But the difficulties in resolving these conflicts stem from more than intransigence on the part of the Canadian government. Because Canadian bands operate independently – some have fewer than 100 members – it can be very hard to get any kind of broad agreement among First Nations when lobbying for a particular policy.
Indeed, because some bands may not want these property rights, one selling point of the First Nations Property Ownership Act (Jules and his allies emphasize this repeatedly) is that any band can choose not to “opt in” to the legislation. Every band should at least have the opportunity to introduce property rights, however.
For all the concern about an imminent revolution on the part of First Nations and the groundbreaking high court decisions that have been handed down, not much has really changed on the reserves. Mike Lebourdais, the chief of the Whispering Pines/Clinton band, who live a couple of hours from Kamloops, tells me that the federal government has made it impossible for bands to improve their situation economically. The best advice he can give his children and the children of others in his band is to get an education and leave, and so his band spends more than most on education. They not only pay for primary and secondary education but also spend almost $300,000 a year to help pay for postsecondary education. A number of times, I hear from leaders of First Nations that education is “the one thing the government can’t take away from you.”
The entire Whispering Pines band – today about 56 members – moved to Whispering Pines only in 1972. Their traditional lands are farther north, but when the government started developing hydroelectric power there, a transmission system was built right through the band’s land. The Ministry of Indian Affairs “is never proactive,” says Lebourdais, but once it recognized the land was “unlivable,” the ministry gave Whispering Pines a new reserve.
As I drive to Whispering Pines from Kamloops, it’s very easy to see the borders between band land and privately owned land, even without crossing the Thompson Rivers. The farmland that seems to speed by my window goes from lush green to brown and then back again.
That’s because, for one thing, band members couldn’t get a bank loan for an irrigation system. “We don’t have a balance sheet,” Lebourdais explains. “We have an expense statement, but we don’t have a balance sheet. So you’re going to spend $15,000 or $18,000 a year on electricity for property that doesn’t exist on paper. It exists in real life – you can touch it, feel it – but it doesn’t mean anything to a banker unless you can describe it legally.” And the entire system makes no sense to a banker because you’re trying to irrigate land you don’t actually own. Which is why, says Lebourdais, “everything is cash on the reserve.”
The fact that the land is held in trust by the Canadian government restricts the economy on the reserve to cash or barter, forcing the Whispering Pines band to live in a kind of preindustrial society.
To illustrate this point, Ed Lebourdais, Mike’s brother, describes a meeting he had recently with the minister of Indian affairs (known officially now as the minister of Aboriginal affairs and northern development). “We’re all equals,” the minister told him. To which Ed said:
“No, we’re not.”
He said, “We’re all Canadians.”
I said, “No. No. Your house is worth something. Mine’s not. And if you don’t believe me, let’s trade houses.” You could hear a pin drop in that office, because nobody wanted to say anything. I smiled at him and he smiled back, and I said, “Exactly. So don’t sit there and tell me we’re equals.” When he holds all the cards, has all the finances, has all the money, all the jurisdiction, all the authority, and none of the accountability.
Indian property isn’t easily transferable to other Indians either. The Indian Act makes it very difficult for Indians to will their homes to their children. And so, more often than not, after the death of its owner, a home is simply auctioned off to the highest bidder.
Take the situation of Deana Crawford. About 15 years ago, Deana, who is not Indian, married a member of the Whispering Pines band. She and her husband had two children and then he left her. Every month, she pays rent on the home, which is located on land owned by the band. But no matter how much she pays, she’s no closer to owning the home. Even though her children are members of the band, she isn’t allowed to own band land. She can never get a mortgage for the land. And she can’t leave it to her children.
Lebourdais has encouraged his small band to be as entrepreneurial as possible given the circumstances. Within the band, a group of firefighters contract with the provincial government to combat forest fires in other parts of British Columbia and other parts of Canada as well. It’s a business that doesn’t require any land, so it’s more feasible than many other enterprises, though it did require the purchase of some equipment.
Lebourdais is disdainful of the dependence on government that many bands seem to have developed. The government sends Lebourdais money each month for what’s called Social Assistance. But Lebourdais says he refuses to sign those checks over to members of his band unless they can prove that they’re physically incapable of working. “I’ll probably get in trouble for this, but I don’t care,” he tells me.
Lebourdais is adamant: “There is no reason for an 18-year-old person to be on welfare. No good reason, anyway. You’ve got both arms, both legs, you got a dog with you for your eyesight. We’ll get you a job, whether it’s washing cars or washing dishes. If you think you’re worth more than that, go apply yourself, because I’m not going to cut you a check.” Lebourdais says people are better off this way – “you have better self-esteem, better values, better thoughts, when you have a real paycheck.”
Lebourdais sees the alternative everywhere he looks. In the Kamloops band, he says, “there are families that think, ‘The government owes me a house, so I’m not paying for this one.’” They don’t pay their mortgages or take care of their homes because they think that’s the band’s responsibility. Lebourdais doesn’t want that to happen to Whispering Pines.
Keith Matthew, former chief of the Simpcw band, which, like Kamloops, is part of the Shuswap Nation, recalls that when he was growing up “there wasn’t really much of an economy at all” on his reserve. “We still had an Indian agent,” he tells me, referring to the person sent by the Ministry of Indian Affairs to oversee all the activities of the reserve. In 1975, Matthew’s father was one of the band members who occupied the Indian agent’s office. “We were kicking the Indian agent out of our lives on an everyday basis,” Matthew says of the occupation, after which money began to flow from the federal government directly to the band. “That was an important turning point in our history.”
That was also the time at which the residential school was closed down. Matthew went to a local school nearby. Today, he says proud
ly, “My community is one of the highest educated ones in Canada per capita. We have our first medical doctor. We have people training to be lawyers. We have lots of teachers.” Unfortunately, says Matthew, because of the constraints of the Indian Act, “it’s tough to build an economy on the reserve . . . and two-thirds of the Simpcw live off reserve.” But like the Kamloops band, their neighbors 50 miles to the south, the Simpcw are trying to build up the infrastructure so that once they’re given more economic and political autonomy they’ll be poised to take control.
Because the Simpcw live in a very rural area, there’s a limit to how much they’ll be able to collect in property taxes, but they’ve started a group of band-owned companies in order to supplement their reserves. There’s a power line construction company and an environmental consulting company, for instance.
And ten years ago, the Simpcw launched a partnership with a heli-skiing company. For $1,500, thrill-seekers can go to the top of a mountain in a helicopter and then ski down. “It’s a very high-end clientele,” says Matthew. But the deal almost didn’t happen, because the band had difficulty coming up with its portion of the start-up money. “We found out in a hurry that we’re a bad risk.” They had no collateral to put down. But in 2003, there was a huge fire in the valley near their reserve. They bid on a job to remove all the salvage wood. They sold the wood and then used that money to invest in the heli-skiing venture.
The New Trail of Tears Page 5
