GIESBRECHT: Who owns Alberta? The Indians?

This Indian chief, Trevor Mercredi, says that he and his fellow Indians do. This is how he puts it: “Well, you know, the leverage is always there," Mercredi said. "Our Treaty Nations own the land and resources. Whether the province or the federal government like to promote that idea, it's the truth and the fact of the matter.".Treaty 8 First Nations chiefs shred Smith over Alberta's referendum to hold an independence referendum.Mercredi is one of eight Indian Chiefs who are currently opposing Premier Danielle Smith’s proposed Alberta independence referendum, arguing that unilateral provincial action violates constitutionally protected treaty rights and nation-to-nation agreements. They are also actively involved in an ambitious effort to drastically expand tribal (collective) rights, and “rewrite” the treaties.So does Mercredi own Alberta? Yes, in a sense, he does.Under the Natural Resources Transfer Act of 1930 (NRTA), the Government of Alberta holds the title to and manages most public lands and natural resources "for all Albertans" (1, 2). Mercredi and his fellow Indians are Albertans and Canadian citizens.In that sense, they “own” the land.But here’s where Mercredi is wrong: Mercredi’s “owns” no more or less of Alberta than does any Albertan. He appears to believe that his racial origin, treaty rights, or a Section 35 “duty to consult” gives him a superior ownership right. He’s wrong..The reality: Most of Alberta is covered by Treaties 6, 7, and 8. In these agreements, Indians agreed to “cede, release, surrender and yield up" any land interests they had in their former hunting lands to the Crown. In exchange, they secured rights to land reserves and the ongoing right to hunt, fish, and trap across unoccupied Crown land until that land was needed by the government for other purposes. There was some other compensation as well, such as the guarantee of a day school if they wanted it, some limited and temporary farming supplies, as well as the standard $5 per year per signatory. But in agreeing to become loyal Canadians, the Indians also received all of the benefits that a few thousand years of European development had brought, and were catapulted those thousands of years into the modern world. It wasn’t a bad bargain for those who were prepared to accept the many benefits of the “colonizers.”But the right to hunt and fish on unoccupied Crown land until the land was needed by the government for other purposes is certainly not the “ownership” of Alberta that Mercredi claims. Any Albertan who buys a hunting licence is entitled to hunt on that same Crown land. In essence, the treaties gave Indians a free hunting licence. The numbered treaties were modest agreements, and definitely not the grand “nation-to-nation” international agreements Chief Mercredi and his associates claim them to be.But it is thanks to those signed treaties, and the surrendering of their land interests by Alberta’s Indians, that the Aboriginal title and “modern treaty” war that is now raging to the west of Alberta in British Columbia is so far ending at the Alberta border. As of now, the courts are not interfering with the very clear permanent surrender that is definitively stipulated in every one of the numbered treaties.The federal government in 1870 was crystal clear in their instructions to the treaty negotiators. They were to make sure the Indians understood that they were ceding and surrendering their land rights in return for the treaty benefits. Alexander Morris, who negotiated most of those treaties, was scrupulous in making sure that the Indians knew exactly what they were signing.He also made the signatories aware that the treaties would not give them a pension for life. The Indians were expected to provide for themselves, like every other Canadian. The Indians also promised in the treaties to stop their inter-tribal wars and be peaceful and loyal subjects of Queen Victoria. The treaties were practical agreements that would help the Indians make the difficult transition to the modern world. “Sharing” was definitely not what the treaties said. The treaties all clearly say “surrendered.”But I said “So far” because Chief Mercredi and his colleagues are now arguing that their ancestors didn’t surrender any rights at all — that they just agreed to “share” the land. If the judiciary validates the perspective that the land was never legally ceded, it follows that Aboriginal title was never extinguished. This would theoretically clear a major legal hurdle for First Nations seeking declarations of Aboriginal title within established treaty zones. [1, 2].If they succeed in persuading a court to accept their argument, Aboriginal title concepts will be introduced into Alberta, and a version of what is playing out in BC will begin to occur in Alberta, Saskatchewan, Manitoba, and Northern Ontario. How this will work in eastern Canada, which is already seeing Aboriginal title and other Indian land claims, is an unknown. I think it is reasonable to predict that with the huge gains the BC Indians are making, there is simply no way that the numbered treaty chiefs, like Chief Mercredi, will be satisfied with their modest treaties.I don’t think I am being hyperbolic when I warn that versions of what is happening in BC will spill across their border and come east. The courts have shown an amazing willingness to give Indian claimants what they want. Our Supreme Court has even thrown out many of the rules of evidence and normal limitation rules to make sure that their claims succeed. The Cowichan case is just an extreme version of what the SCC decided in cases like the Delgumuukw case, which literally invented Aboriginal title. The end result is that Chief Mercredi might eventually get what he wants — a superior collective “ownership” right for Indians.But wait a minute, how did this happen? Wasn’t Canada built as a nation of equal rights for all? And how did such a thing as the tribal rights Chief Mercredi relies on ever find their way into our legal system?Here’s what John A. Macdonald had to say about tribalism and tribal (collective) rights: "The great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion as speedily as they are fit to change."That’s pretty clear. He had just as much respect for tribalism and tribal rights as I do — zero. And that’s the direction our Supreme Court took for the first hundred plus years of Canada’s existence. The Supreme Court, in the St. Catherine’s Milling case, ruled that treaties gave Indians a collective right — a usufructuary right — to hunt and fish on treaty lands (until the land was needed by the government for other purposes). But, with the exception of that, and other minor collective rights, those are the only collective rights Indians possessed.Pierre Trudeau, like John A. Macdonald, was another very smart Canadian, like him or not. Here he is in a 1973 clip explaining why returning to some imagined tribal past is a very bad idea for Canada, or any country. He stood up to the Indian activists who wanted to do exactly that, and said “No.”Unfortunately, our post-1982 Supreme Court lacked his wisdom and was suckered into going down the tribal rights rabbit hole..Exactly what to make of this transition from a country of equal individual rights to one where one racial group has exactly those same individual rights, plus a whole grab bag of tribal (collective) rights as well, is not something that I’m capable of describing in a short article. I certainly didn’t vote for it, and I don’t think you did either. How some illiberal expropriation vehicle called “Aboriginal title” became senior to the individual’s right to homeownership that we all thought was sacrosanct; how one ethnic group could exclude all other Canadian citizens from public parks; how pure eugenics, like “Indians have an inborn ability to steward the land” could take hold, while ordinary Canadians were trusting in their courts and politicians to ensure that exactly such race-based policies could not happen in Canada, or why our courts are putting our basic homeownership rights in jeopardy needs to be studied. How did we get here? No Canadian voted for it. For reasons I don’t understand, our own Supreme Court seems to have decided that individual rights should be secondary to collective rights for one racial group. And there were foolish politicians, like Justin Trudeau and David Eby, who seemed eager to take this regressive return to tribal rights even further.I will be accused of alarmism by describing what is happening now in BC in such apocalyptic terms by some of the same people who brought that benighted province to this point. According to them, this is just a question of correcting “historical injustices,” and we should trust the same courts and politicians that brought BC to this perilous point to set things straight. And those same people will dismiss my warning that what is happening in BC is heading our way. But they will be particularly dismissive of the argument that a few of us have been making for decades now: This entire Indian apartheid system — a system that was supposed to be temporary — must be phased out. The Indian Act, with its reserve system, Section 35, and even the treaties, must all go. They have all been weaponized and monetized into a Frankenstein monster that not only acts as a wrecking ball on our economy but is currently destabilizing an entire province. A national referendum, opening up the Constitution, the threat of provinces separating — whatever it takes. A system that makes chiefs and their lawyers rich and everyone else poorer — including 95% of the Indian population — must be put out of its misery.No matter how difficult this process is, and no matter how expensive, the process must start. Canada must once again become a nation of individual rights. Tribal rights and all race-based policies must be consigned to the trash can John A. Macdonald had in mind for them.Because if we don’t start dismantling this wretched Indian apartheid system, Chief Mercredi and his privileged colleagues might indeed end up “co-governing” Alberta — and the rest of Canada too.The counter is “It can’t be done.” My reply: “It has to be done.”The best spokesperson for something that resembles this point of view is Professor Bruce Pardy. Here are a couple of links. https://frontiercentre.org/category/leaders-on-frontier/https://podcasts.apple.com/ca/podcast/leaders-on-the-frontier/id1677169741The best book on the subject is senior lawyer, Peter Best’s There Is No Difference.

GIESBRECHT: Who owns Alberta? The Indians?

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