PART TWO

Denial

How do the Crown and industry dispossess Indigenous peoples of land and waters today?

In this section, we examine how Canadian law is used to deny recognition of Indigenous peoples’ inherent rights, in order to better understand Crown motivations and techniques of dispossession.

Five main sources of alienation:

01. The Problem of Crown Land

89% of the land in Canada this country has been roughly divided between the federal and provincial governments, with territories primarily falling under federal influence. This is a profound and fundamental source of alienation for Indigenous peoples because Canada relies on doctrines of discovery to claim underlying title to Indigenous lands.

The legal system has entrenched this presumption. Even where Indigenous nations have proven in courts the continuity of occupation, use and unceded title, from pre-contact to the present, according to Canadian law, there is no legal pathway to resume full jurisdiction and governance authority over Indigenous lands.

02. Resource Nation

Crown lands have long catalyzed economic growth for this country. Through claims to absolute authority and underlying title, the provincial and federal Crowns grant “user right” access to state corporations and private companies to build hydro and energy corridors, transportation infrastructure, and enable mining, forestry, and oil and gas development. They also alienate Indigenous peoples further from the land and water. 

Billions of dollars worth of resources are extracted annually, fragmenting Indigenous territory into islands amidst development. Mapping extractive industries offers a revealing depiction of the scale of contemporary resource development, land alienation, denial of Aboriginal rights, and erasure of Indigenous law.

“The vast majority of natural resource extraction is based on the leasing, permitting, and licensing of Crown Land…access to state corporations and private companies to build hydro and energy corridors, transportation infrastructure, and enable mining, forestry, and oil and gas development. They also alienate Indigenous peoples further from the land and water.”

– Land Back: A Yellowhead Institute Red Paper, page 25

03. Injunctions and the Police

When First Nations contest the authority of the province or the regulatory processes that fail to acknowledge their lack of consent, companies can take advantage of a legal system built to protect the interests of property. One legal mechanism in particular – the injunction – is used to expedite the use of force against First Nations.

In Reconciliation Manifesto, Secwepemc leader Art Manuel called injunctions a “legal billy club” because they are designed to move rightful title-holders off their land through force when they refuse to comply with decisions that deny their inherent rights.

After poring over the injunction cases, we found that 76% of injunctions filed against First Nations by corporations are granted, while 81% of injunctions filed against corporations by First Nations are denied.

04. Cumulative Impact

While extraction is approved one project at a time, its impacts compound over time. The loss from earlier periods of land alienation and ecological destruction — from railway expropriation to dam flooding — also increase the ecological instability of regions and watersheds. We want to draw attention here to the issue of cumulative impact on Indigenous territories and on the well-being of communities as a crucial aspect of land alienation.

Cumulative impact is a matter that involves:

  • Consent: If the total impacts of development are not transparent, how can First Nations make informed decisions about extraction or development on their territories?
  • Legal and policy blindspots: A lack of any real solid cumulative effects assessment abounds in the regulatory process and the courts have not been any better.
  • Compounding ecological grief and violence of colonization: The result of this development and encroachment is not merely an issue of shifting land tenures. Denial of Indigenous rights and access to the land is tied to assimilation, language and cultural loss.

05. Patriarchy

Land alienation must also be understood through gender dynamics, which are instrumental to how land loss and dispossession unfold and impact people’s lives. Gender is also critical to the ways in which the right to consent is denied to Indigenous peoples.

Women, queer, transgender, gender diverse, and Two-Spirit people have never been the beneficiaries of these new distributions of power through colonization. Rather, they were targeted and disempowered, removing the challenge they posed to the patriarchy of Western systems of governance. This system was in many cases internalized by Indigenous communities and often reproduced through misogyny in First Nation governments. Women and queer Indigenous people are excluded from management, jurisdiction, decision-making in contemporary policy and politics, which results in, amongst other things, environmental (and sexual) violence.

“I see the expression of heteropatriarchy in our communities all the time – with the perpetuation of rigid (colonial) gender roles, pressuring women to wear certain articles of clothing to ceremonies, [and] the exclusion of LGBQ2S individuals from communities and ceremonies, the dominance of male-centred narratives regarding Indigenous experience...”

-Leanne Simpson, “Queering Resurgence: Taking on Heteropatriarchy in Indigenous Nation Building”

To read the full analysis of this section, download the Land Back report.

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