In a previous article for this site, I set out to puncture the fable of Aboriginal title. Here my task is to re-examine the concept of Aboriginal nationhood and to revisit the legal atrocity that recently occurred in Richmond, a district of Metro-Vancouver, potentially removing paid, mortgaged, and vetted property rights from their owners in a battle concerning the relationship between private fee simple title and Aboriginal title over the same land. We are told the Cowichan tribe’s ancestors fished and hunted in the area over the summers of generations ago—a sufficient reason to underpin Indian title, apparently. A bit of oral history for which there is no material evidence and some very obscure Treaty language were enough to persuade the British Columbia Supreme Court to rule in favor of Aboriginal Rights over legal ownership.
The court decision has been brewing for eleven years, but private landowners were not given notice until now. They woke up one fine day to find they do not effectively own their bought-and-paid for homes. Aboriginal Title in Canadian law now furnishes legal recognition of pre-existing Indigenous rights to the use and occupation of the land in question, the victory of usufruct over replevin.
British Columbia is merely the most recent province in the ongoing frontier wars, the latest installment in what may appear to some as a far larger plan to potentially repossess the entire province in the name of the 200 bands that reside on the land. After all, the tribes regard themselves as the rightful landed proprietors, though one wonders if tribal forefathers ever considered the land they were on as “property” rather than “territory.” Obviously, they had never read, let alone heard of, John Locke’s Two Treatises of Government establishing individual property rights as a condition of democratic freedoms and the civilized structure of nation-states. Nonetheless, their descendants act as if they were actual “nations,” now engaged in a revanchist political policy of reclaiming not “property” but a lost allodium.
I do not accept the validity of their program nor the logic of the term “nations,” as the concept is properly understood. Nor should anyone. A nation consists of a group of people who share a set of common beliefs and values, speak and write a common language, occupy a definite territory, possess a formal legal code, exhibit a common ethnicity and ancestry, and are unified over a broad spectrum of ancillary qualities. This may appear to be the case with Canada’s Indigenous peoples, but it is not so.
Indigenous groups in Canada do have plainly distinctive customs and usages, but different from one another—these are not collective; speak over 50 separate languages; did not employ a developed writing system; have no systematic legal code; were and are scattered over widely separated territories in diverse groups too small for individual nationhood; have their own myths and oral records of derivation different from their congeners; and were often at war with one another—features making it impossible for hundreds of lineages or gens to form a single coherent nation or, for that matter, a plethora of single, sui generis states.
Books such as Histories of Nations by Peter Furtado and Nationalisms by Montserrat Guibernau present a good overview of the subject and are worth looking into. They make it abundantly clear that the species of Indigenous tribes we are focusing on are not nations and it is a mistake to call them that.
The 1933 Montevideo Convention on the Rights and Duties of State is a go-to tract that outlines the criteria for states or nations as comprising at least four elements: a permanent population; a defined territory; a government encoded in written law; and the capacity to enter into relations with other states via treaties, alliances, trade agreements, and the like, these latter being neither word-of-mouth, forms of intermittent barter, or merely domestic. Indigenous tribes, however, do not feature a permanent population, that is, one accounted for by a census; were often nomadic; did not possess written codes or documents; and did not enjoy the means to engage in formal, international relations.
Constitutive Theory takes the issue even further, affirming that states or nations exist as legal entities or “international persons” only when they are recognized by other states and must be fully capable of participating in the international system as mutual partners. We can add to these criteria other factors that go with statehood or nationhood, such as a recognizable flag; the ability to generate documentary muniments; the means to mint currency that is accepted and negotiable by other nations; the right to create ambassadors who bear immunity and diverse legal privileges; a viable postal system; concrete monuments of habitation; and so on.
Indigenous bands possess none of these attributes, or merely in a fluid and arbitrary way that does not produce a condition of objective confidence. Tribes are not nations. Canada’s aboriginal clans or groups are not states. The word “nation” does not apply. They were inhabitants of local, often insulated areas which they roamed at will. They were not what we might call “planetary people.” They did not, and do not, arrange liaisons with the nations of the world.
The attribution or acceptance of the word “nation” is a mere courtesy that has become a kind of guilty compliance with what the Aboriginals regard as their own particular identity. Despite their expressions of prestige or uniqueness, I see no imperishable splendor in the native escutcheon. Aboriginal “forms of knowledge” are either survival techniques or folkways, not methods of historical authentication or analysis predicated on reasoned inquiry in the search for scientific truth concomitant with universal assent, regardless of what Aboriginal leaders and their intellectual and academic supporters assert.
Similarly, Aboriginal claims, backed by the Western literary elite, of pastoral existence and amical relations with their surroundings are pure fabrications; evidence of protracted warfare and mutual slaughter are indisputable. The Iroquois massacred the Hurons, and the Inuit (Thule) replaced the Dorset (Tunlit) peoples. Olivia Patricia Dickason’s Canada’s First Nations (despite the inaccurate title) tells some of this story. What we are really observing is an aspect of internal protocols among governments and the literati that are laundered forms of political subterfuge, not expressions of empathy but of functional sentimentality regarding the Aboriginals among them.
There is an odor of fraud regarding the relation between the white majority who profit from association with natives, such as lawyers and politicians, or who feel ashamed of their own good fortune, on the one side, and the Aboriginal bands whose chiefs have played the system to their benefit, on the other.
In 2021, the Freedom of Information and Protection of Privacy Act (FIPPA), a Canadian provincial law as in British Columbia or Ontario, was amended to prohibit disclosures that “could reasonably be expected to harm the rights of an Indigenous people”—whatever that means. Business with Aboriginals need not be disclosed, which allows insiders, opportunists and Tribal authorities with government approval to plunder public funds. “There’s an ugly word for it,” writes Western Standard author Charlie Grahn, “Indigi-washing.” Public spending regarding indigenous people has been placed beyond scrutiny.
The upshot should be obvious. When it comes to the elevation of native tribes to the cultural peerage, do not fall for the “nation” story and be wary of officially produced public narratives and amended laws in favor of the Indigenous peoples. Reject convenient tall tales that readily circulate, whether of cadastral ownership of other people’s property, the justified need for softball regulation, inherent rights in defiance of historical reality and the results of conquest, business secrecy and absence of public transparency, and especially common pedicide in the Residential Schools, fictions thoroughly debunked in seminal books such as First Nations: Second Thoughts, The Scarlet Lesson, and Dead Wrong, plus a just released documentary film Making a Killing. We need to recognize that our Truth and Reconciliation Commission is distinguished by the lack of truth and the deceit of reconciliation. And we need to understand that a province and a country are not garage sales.
I believe Indigenous tribes must advance of their own accord without cosmetic assistance and wasted money distributed from taxpayer resources by inept or corrupt politicians and ignorant bureaucrats. This is not happening to any meaningful degree and there is much indulgent depravity in band and reservation life. This needs to be recognized and fought. Like first-and-second generation immigrants who depended mainly on their own means and skills, Indigenous peoples should be expected to eventually prosper by dint of struggle and application, striving to “make something of themselves” in the surrounding culture. The ball, as they say, is in their court. They must come to terms with their own social ills and contribute to the benefit of the larger country of which they are a part rather than claiming a nationhood they have never had.
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