#MYRECONCILIATIONINCLUDES

The report of the Truth and Reconciliation (TRC) came out on June 2, 2015 with 94 Calls to Action.  It is a comprehensive body of work containing 388 pages that documents the Truth of what really happened in Indian Residential Schools. 

I have taken the time to review the recommendations and they hit on many important areas needed for reconciliation. This body of work was done through much tears, heartfelt grief, and reliving the traumas of residential schools by all those who gave testimony to the TRC.  The Truth and Reconciliation Commission was the result of a settlement of several class actions suits where residential schools survivors were suing the Canadian Government for horrendous abuses they suffered.  The financial risk to the Federal government was huge so it isn’t any wonder they agreed to the Truth and Reconciliation Commission (TRC).

Seven years later, the report is now out and has gained a lot of attention and many groups and people are determining how they can implement the recommendations.

I support the recommendations and the hard work of the TRC. The report is one that the survivors of residential schools and the multi-generational descendants of survivors have been waiting for a long time. Kudos to the whole team at the Truth and Reconciliation Commission and especially to the  Chief Commission Justice Murray Sinclair and Commissioners Willie Littlechild and Marie Wilson.  Well done!

But I have to say, there is one thing that I have a hard time understanding why one of the Calls to action is put the way it is. Maybe it is my interpretation but I would like to see this call to action put differently in an easy to understand manner. The call to action that I have a problem with is Action 52.  My reconciliation does not include this call to action in this way:

52.  We call upon the Government of Canada, provincial and territorial governments, and the courts to adopt the following legal principles:

 i)              Aboriginal title claims are accepted once the Aboriginal claimant has established occupation over a particular territory at a particular point in time.

 ii)             Once Aboriginal title has been established, the burden of proving any limitation on any rights arising from the existence of that title shifts to the party asserting such a limitation.

First of all, First Nations are not a “claimant,” we are the owners of the lands and resources within our territories.  Why do we have to establish our occupation over a particular point in time when it should be the Canadian government that should have to establish how they have any right to our lands.  Establishing our occupation is still a big burden for First Nations people if we have to do it according to Government policies such as strength of claim. 

This Call to Action does not reflect the fact that as First Nations people, we have been here since time immemorial.  In most of British Columbia there has not been treaties with the exception of Treaty 8 in North Eastern BC and the Douglas Treaties on Vancouver Island.  There was never wars between First Nations and Canada where Canada could claim victory and the land. Nor can the Canadian government claim discovery or terra nullius as those principles have been discredited by the International Court of Justice and now by the Supreme Court of Canada. There is no legal method in international law that the Canadian government can legally own our lands.  Yet they say they have Crown title when they have not legally acquired title from First Nations.  In the minds of many First Nations people, the lands were stolen from us.

The Supreme Court of Canada has acknowledged title to the land as being with the Canadian government’s without explaining how the lands within our territories were allegedly taken over by the Canadian government without war or treaty and somehow acquired title. The Tsilhqot’in decision at the Supreme Court of Canada paragraph 69 on aboriginal title describes it this way:

“At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province.  This Crown title, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival.  The doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation of 1763.  The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.” 

The courts have never explained how the Crown acquired radical or underlying title to all the land in the province.  Just that it was done through assertion of European sovereignty.  This is not an acceptable international legal principle for acquiring the territory of another Nation. The definition of terra nullius meaning the land belonged to no one never applied in Canada-which logically means the land belonged to the First Nations people and still does. 

#Myreconciliationincludes Canada admitting that aboriginal title exists and that they must resolve this with First Nations. Not through dragged out treaty negotiations where the federal and provincial crowns do not change mandates to keep up with court rulings such as Tsilhqot’in and Haida.  Not through colonial policies or imposed laws, but through genuine, progressive, good faith and timely negotiations.  We have long lived with this travesty of justice where the entire burden rests on First Nations to prove aboriginal title and all the condition imposed by the courts. Canada could never meet such a burden and yet First Nations are held to such a high standard. Court cases through the years have tried to prove aboriginal title.  The earliest case was the Calder case in 1973 where the court was split and there was no decision. Delgamuukw took 13 years to move through the court systems with years of preparation before that. Tsilhqot’in finally were declared to have aboriginal title in 2014 but it took 25 years to prepare and get through 3 levels of court. If reconciliation is truly to be achieved, First Nations title must be acknowledged and agreements made on what that means, compensation, and jurisdictions. Title has taken too long to resolve and has been an issue since the non First Nation people arrived in our lands.

I know that we all have different wants and needs for reconciliation and they have been expressed in the #myreconciliationincludes on twitter, well, this is mine and is not meant in anyway to detract from the report of the TRC, it comes from the perspective of a First Nations person who lives with Hupacasath/aboriginal title every day of her life and has spent over twenty five years struggling to resolve the issues around aboriginal title. I continue to call on governments, organizations, and people to implement the Calls to Action of the TRC and try to change the course of history from its downhill spiral.

 

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