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A new Declaration of Independence

The Lakotah-Sioux have re-declared their independence, and are hoping to secede from the United States. As the Western Standard discovers, the Lakotah's struggles bears a striking resemblance to the struggles of the Nisga'a in British Columbia.

Terrence Watson - February 4, 2008

Consistent with their right to self-determination, the Nisga'a people would be able to make and enforce their own laws, bound only by the Charter of Rights and Freedoms. They would have the authority to exclude any non-Nisga'a from government, but would be required to consult with non-Nisga'a before making decisions that "directly and significantly affect them."

The Nisga’a Treaty was not without its critics. According to the CBC, Gordon Campbell, the then-opposition leader in British Columbia, vowed to challenge it in courts. Like the Canadian Constitution Foundation, a privately funded constitution group, Campbell and others have charged that the Treaty illegitimately creates a "third level of government," in addition to government at the federal and provincial levels. Because control over the land was given to the Nisga'a people as a whole and not to individuals, some have claimed that the Nisga’a Treaty is racist. In 1996, then-Reform M.P., and current Liberal M.P., Keith Martin called it "apartheid," saying in Parliament that "it creates different laws for different people. It is by definition racist."

These are important charges. However, Section 25 of the Charter of Rights and Freedoms states that Charter rights should not be "construed as to abrogate... any aboriginal, treaty, or other rights or freedoms that pertain to the aboriginal peoples of Canada." Section 35 of the 1982 Constitution Act affirms that such aboriginal rights do exist. Taken together, these two provisions indicate not only that aboriginal peoples have certain distinct rights, but that these rights must coexist with (and are not "abrogated" or "derogated" by) Charter rights.

While Canadian law recognizes the existence of aboriginal rights, it has been up to the courts to determine just what those rights are. A significant step in this process came just prior to the Nisga'a Treaty, when the Supreme Court of Canada affirmed the existence and limits of "aboriginal title" in its 1997 Delgammukw v. British Columbia decision. According to Robert Mainville in his extensive 2001 overview of aboriginal treaty rights, "Aboriginal title provides to the concerned Aboriginal Peoples the undisturbed and exclusive use of the land for a large variety of purposes that need not be tied to traditional Aboriginal activities."

While aboriginal title "cannot entirely be explained in terms of traditional common law property" it does involve a right to the land itself. The recognition of aboriginal title entitles aboriginals to challenge the Crown and other entities to explain whether and how that original title was lost, or "extinguished" with respect to a given piece of land. As Mainville explains, the Delgammukw decision "directly addressed the nature of Aboriginal title, the proof required to establish such a title, the circumstances under which Aboriginal title may be infringed... as well as the manner and circumstances by which Aboriginal title might have been extinguished prior to the Constitution Act, 1982."

There are many legally legitimate ways for Aboriginal title to be extinguished, as happened when European settles bought land outright from its Aboriginal owners. According to Hamar Foster of the University of Victoria, British Columbia never reliably recognized the existence of aboriginal title, and thus in some cases took land without making treaties with its native peoples. In making use of the land without proper legal title, British Columbia harmed the Nisga’a and other native groups. According to Foster, the Nisga’a commissioned a study showing that non-natives extracted between two and four billion dollars from the territories of native groups since the late 19th century. Compared to this, the $196.1 million given to the Nisga’a as part of the Treaty is small compensation. It’s owed at least in part because British Columbia has refused to deal in good faith with its native peoples in the past. Aboriginal title is a concept recognized not only in other parts of Canada, but in places as far away as Australia, in which colonial or former colonial powers are beginning to recognize the claims of their aboriginal peoples.

British Columbia's obstinate refusal to recognize the legal concept is going to cost it a little. However, the Nisga'a Treaty may also produce what the Supreme Court in its Delgamuukw decision hoped for--"the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the crown." Along with the establishment of the territory of Nunavut in 1999, the Treaty is an example of how modern, post-Charter Canada has come to what might be called a "joint sovereignty" arrangement with its aboriginal peoples. In comparison, according to Russell Means, the Lakotah want the U.S. out of their territory, and there has been discussion of placing liens on public property in the new nation if the federal government does not start negotiating a diplomatic relationship. If the Lakotah secessionist plans were entirely successful, North America would be the home of at least four full-fledged nation-states (the others being Canada, the United States, and Mexico.)

The comparison of Canada's dealings with its native peoples--represented by the Nisga'a Treaty--and the Lakotah secessionist bid in the United States reveals a stark contrast and a clear choice for these countries and other colonial powers: they can continue to deny or diminish the harm done to their aboriginal peoples, or they can deal on a good faith basis with their claims and admit that the conquest of North America was not bloodless, nor has its results been unassailably just.

More articles by Terrence Watson