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“We ask that you please forward our petition to the ministry in Ottawa. The chief and councilors got together to consider our miseries, how we are prevented from fishing, how we are put in prison for fishing. It was established by treaty that here, where we live, only Indians should dwell, and that the fisheries should be our fisheries all around, this was agreed on August 9, 1836 by Sir. Chief FB. Since that time we have never made any other agreement with the government whereby the government could come into possession of what was ours, until this day we have never received anything for which we should cease owning this. that our ancestors once possessed.”
Petition from the unceded territory of Wiikwemkoong dated July 9, 1894.
The authors of this historic petition were not lawyers or jurists. But in a short paragraph, the words woven together by the creators of the petition of Odawa Mnis (Manitoulin Island) summarize along with any legal manuals or appellate judgments the significance and effect of the Royal Proclamation of 1763, the Treaty of Niagara of 1764 and the status of unceded Indigenous lands in Canada.
And the law’s response? Take two current examples that still exist and are happening in this country.
First, the long-standing historic claim by members of the unceded territory of Wiikwemkoong. The above petition finds its genesis in the Manitoulin Island (McDougall) Treaty of 1862. Wiikwemkoong did not sign or approve this treaty, hence its description of “unceded Indian reserve”.
Since October 6, 1862, Wiikwemkoong has protested against this treaty, demanded its annulment, petitioned the Governor General, participated in disputes to protect its fishing grounds and fishing stations, sent letters to the Superintendent of Indian Affairs and to the Minister of Indian Affairs. Indian Affairs and Northern Development and sent delegations to meet with government officials.
Over the past 46 years, Wiikwemkoong has:
- issued a declaration on August 7, 1975, reaffirming its sovereignty over its offshore islands;
- filed a claim with the Specific Claims Branch of the Government of Canada, 1984;
- issued and filed a declaration in the Ontario Superior Court of Justice, 1997; and
- began formal negotiations with the Crown in 2006.
To date, no final settlement agreement has been signed. Yet throughout all the intervening historical years, Wiikwemkoong continued to experience dispossession and loss of use of its lands, waters and resources. He also witnessed the merger and the creation of a new municipality despite his objections. But the slow and slow clock for justice continues to ring, month by month, year by year and decade by decade, without a final resolution having yet taken place.
The second example is that of the Wet’suwet’en and Gitxsan peoples and their unceded territories in British Columbia. Their legal claim to declarations of Aboriginal title and jurisdiction over their traditional territories was filed in the Supreme Court of British Columbia in 1984. The trial decision was rendered in 1990, after a trial involving 318 days of evidence and 56 days of oral argument.
The trial decision in favor of the Crown was overturned in 1993 by the British Columbia Court of Appeal. On appeal, in 1997, Canada’s highest court ordered a new trial (Delgamuukw v. British Columbia  3 RCS 1010). In doing so, Chief Justice Antonio Lamer wrote these oft-repeated words:
“By ordering a new trial, I am not necessarily encouraging the parties to initiate a trial and resolve their dispute through the courts. As was said in Sparrow… subsection 35 (1) “provides a solid constitutional basis upon which subsequent negotiations can take place”. … Further, the Crown has a moral, if not legal, obligation to enter into and conduct these negotiations in good faith. ”
And the law’s response? Thirty-seven years after entering the Canadian legal and judicial system in good faith (1984) and honoring court processes in pursuing assertions and statements regarding identified lands in British Columbia, a final trial or settlement outstanding legal claims with respect for land rights, title and jurisdiction has not been met.
And as recently as November 18-19, 2021, heavily armed and militarized RCMP officers re-entered the unceded territory of the Wet’suwet’en people and forcibly arrested elders, legal observers, media representatives, supporters and various citizens of the Wet’suwet’en Nation.
When it comes to claims and lawsuits in Ontario (and likely similar in other provinces), there is a rule of civil procedure known as the General Principle. It states in part:
1.04 (1) These rules are to be interpreted liberally in order to ensure the fair, quickest and least costly decision of each civil proceeding on the merits.
I do not adhere to this legal rule and slogan when the “civil proceeding” or legal claim relates to issues of indigenous lands and resources. I do not accept that people of power inside and outside the Canadian justice system really take to heart that in these kinds of cases, “justice delayed is justice denied”. All of this with the result that these important cases will go unresolved or unresolved for decades and generations, while the rest of the world, including the legal world, will miss it.
The hard and unfair fact is that a chronic and insidious cancer of delay, both inside and outside the courts, is infecting cases relating to indigenous lands and resources, slowing their resolution at breakneck speed, if not never.
“Unceded” overturns the ideals of the law and the promises of a fair and speedy resolution of such disputes. And when that happens, the rule of law, a fundamental tenet of our Constitution, begins to unravel and its promise as the intentional order of social relations in Canada slowly but surely begins to unravel.
“This is not reconciliation – this is not the way to do it.”
Unceded territory of Dini ze Woos-Wet’suwet’en – November 19, 2021.
The Honorable Stephen O’Neill is retired from the Ontario Superior Court of Justice where he was a judge from 1999 to 2015. Since 2016, he has been a partner with Nahwegahbow, Corbiere, Genoodmagejig, Lawyers.
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