Bruce McIvor - Standoff: Why Reconciliation Fails Indigenous People and How to Fix It

Standoff

Copyright Bruce McIvor, 2021

1 2 3 4 5 25 24 23 22 21

all rights reserved . No part of this publication may be reproduced, stored in a retrieval system or transmitted, in any form or by any means, without prior permission of the publisher or, in the case of photocopying or other reprographic copying, a licence from Access Copyright, the Canadian Copyright Licensing Agency, .

Nightwood Editions

P.O. Box 1779

Gibsons, BC V0N 1V0

Canada

www.nightwoodeditions.com

Cover design: TopShelf Creative

Typography: Carleton Wilson

Nightwood Editions acknowledges the support of the Canada Council for the Arts, the Government of Canada, and the Province of British Columbia through the BC Arts Council.

This book has been produced on 100% post-consumer recycled, ancient-forest-free paper, processed chlorine-free and printed with vegetable-based dyes.

Printed and bound in Canada.

Library and Archives Canada Cataloguing in Publication

Title: Standoff : why reconciliation fails Indigenous people and how to fix it / Bruce McIvor.

Names: McIvor, Bruce, author.

Description: Includes bibliographical references and index.

Identifiers: Canadiana (print) 20210271701 | Canadiana (ebook) 20210273763 | ISBN 9780889714205 (softcover) | ISBN 9780889714212 ( HTML )

Subjects: LCSH : Indigenous peoplesCanadaSocial conditions. | LCSH : Indigenous peoplesCanadaGovernment relations. | LCSH : Indigenous peoplesLegal status, laws, etc.Canada. | LCSH : Indigenous peoplesCanadaPublic opinion.| LCSH : CanadaRace relations. | LCSH : CanadaEthnic relations. | LCSH : Reconciliation.

Classification: LCC E78.C2 M35 2021 | DDC 305.897/071dc23

This book is dedicated to Emilie whose strength, support and clarity of vision have inspired me to imagine a better world and to play my small part in making it a reality, one step at a time.

Not long after I became a lawyer, I found myself one sunny day in a standoff on the edge of the Thompson River in Nlakapamux territory in the interior of British Columbia. Two clients and I were toe to toe with three government officials. No one spoke. The only sounds were the rushing water of the river in freshet and a woodpeckers hammering on a nearby tree.

While the anger and frustration engulfing our small group was palpable, stronger still was my clients resolve. It was their land. It was their responsibility to care for the river, the fish, the birds and the plants. Regardless of what happened in that moment, they would not concede, they would not back down.

Writing the essays in this book has been my attempt to use the development of the law around Indigenous rights in Canada over the last ten years to capture that moment in time, to help explain the legal and historical forces that created it and, hopefully, to suggest a way forward based on honesty and respect. Although all the essays are grounded in my knowledge of Canadian constitutional law and Canadian history, they are written for non-lawyers. Most began as opinion pieces and case comments I shared with clients, colleagues and a wider audience across Canada and around the world.

When I set out to put together this collection, I considered rewriting many of these essays with the benefit of hindsight. But I quickly realized this would deprive them of their value. By respecting their historical embeddedness and adding short addendums where helpful, I hope these essays capture how the development of Canadian Aboriginal law over the last ten years has simultaneously supported and thwarted the recognition of Indigenous rights and legal orders.

I have always believed there is much more to being an Indigenous rights lawyer than arguing cases in court. Being part of the national dialogue is just as important. This collection is my contribution to that dialogue. I hope all readers, Indigenous and non-Indigenous, find in it a moment that resonates with their personal history, with their values and aspirations, with their conscience and responsibilities. The possibility of resolving the standoff is born in that moment.

Professionally, I am nothing without my clients. Whatever value there is in this book is primarily due to their visions, teachings and patience. The entire team at First Peoples Law has been instrumental in bringing this work to publication. I am especially indebted to my colleagues Kate Gunn and Cody ONeil. Codys comments and editing skills improved many of these essays. He has an outstanding future in the law ahead of him. Kate helped me develop many of the essays, added valuable insights and corrected my mistakes. Kate is a top-notch lawyer, trusted colleague and dedicated advocate for Indigenous Peoples.

News of 215 Indigenous children buried on the grounds of the Kamloops Indian Residential School has shocked Canada and the world. Canadians are calling for real change in the countrys relationship with Indigenous Peoples. Apologies are not enough. The federal government must take a meaningful step toward dismantling the existing structures of systemic racism that led to the death of the 215 children and hundreds of other Indigenous children across the country. One such step would be for the federal government to repudiate the Doctrine of Discovery.

The Doctrine of Discovery is the Western legal principle that European countries extinguished Indigenous sovereignty and acquired the underlying title to Indigenous Peoples lands upon discovering them. The principle derives from an 1820s decision of the US Supreme Court. An early champion of the principle was US President Andrew Jackson, infamous for signing into law the Indian Removal Act of 1830.

The Doctrine of Discovery entered Canadian law in the 1880s through the St. Catherines Milling decision, the first major court decision to address the nature of Indigenous land rights in Canada. When the Supreme Court of Canada began its modern consideration of Indigenous rights in the late twentieth century, it relied on the doctrine to explain how colonizing European countries gained the underlying title to Indigenous lands.

Despite the appeals of intervenors in the 2014 Tsilhqotin decision, the Supreme Court refused to abandon the Doctrine of Discovery. Instead, the court perpetuated and reinforced the racist, dehumanizing and indefensible principle that with a sleight of hand the British Crown acquired the underlying title to Indigenous lands through a simple assertion of sovereignty. The Truth and Reconciliation Commission denounced the Doctrine of Discovery. Four of the commissions calls to action (45, 46, 47 and 49) urge governments and religious denominations to publicly disavow itCanadian governments have responded with silence.