Unceded: Why we acknowledge, or don’t, that B.C. First Nations never signed away land

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Who, ultimately, possesses the land?

That is a question at the root of the territorial acknowledgments that have become pervasive across Canada, a sombre public rite.

But it’s not only non-Indigenous Canadians who undergo conflicted feelings, whether gratitude, guilt or consternation, when politicians, school principals and others open a gathering by acknowledging they’re on the “unceded traditional territory” of the Wet’suwet’en, Algonquin, Musqueam or other First Nation.

Indigenous people talk of their mixed emotions, including pride and feeling recognized. But they also talk of a sense of being diminished by an acknowledgment that can seem like posturing or a way to avoid delving into the gritty complexities of the country’s heightened land conflicts, a topic that Indigenous people themselves differ over greatly.

Acknowledgments raise concerns about the ramifications of Canada’s colonial history, which regularly featured Indigenous groups “ceding,” or giving up, their traditional territories to settlers.

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As the Canadian writer Stephan Marche once said, “Acknowledgments force individuals and institutions to ask a basic, nightmarish question: ‘Whose land are we on?’”

Two questions stand out.

One is: Do land acknowledgments consign the people who recite them to certain obligations, morally or legally?

The second question, which is especially key for B.C., is whether it’s logical to insist on referring to “unceded” territory if it’s increasingly likely many First Nations do not intend to sign treaties that would ever cede land.

The answer to the first question, about obligations that go along with acknowledging unceded territory, is open-ended, bewildering and often highly charged.

In the 1990s, land acknowledgments were part of internal protocol among the more than 18 Coast Salish nations, says former Tsawwassen First Nation chief Kim Baird. Through acknowledgments, neighbouring First Nations “showed respect for whose territory they were on, while also introducing a little about your own lineage.”

They began to be widely recited by non-Indigenous people after the 2015 release of the Truth and Reconciliation Commission report, even though they’re not mentioned in the report’s 94 “calls to action.”

UBC law professor Jocelyn Stacey, who specializes in Indigenous issues, says she hasn’t considered the full legal implications of land acknowledgments. But Stacey, whose email signature states she is on “xʷməθkʷəy̓əm (Musqueam) Traditional Territory,” says they should at least compel people to ask permission before entering a traditional territory.

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The multicultural City of Richmond, however, is among those concerned there could be larger legal implications to citing “unceded territory.” Its councillors are not offering land acknowledgments because the city is facing overlapping land claims litigation from the Musqueam and Cowichan peoples.

A majority of councillors in the sprawling suburb of Surrey also rank among the relatively few holdouts, refusing to agree this spring to begin meetings with a land acknowledgment. The Ontario Medical Association recently stopped them, too, worrying they have become “token.”

Tough-talking Grand Chief Stewart Phillip, who has been president of the Union of B.C. Indian Chiefs for 23 years, says the reluctance to offer land acknowledgments “reveals an inherent racist attitude … in regard to people of colour.”

The second question — is it misleading to acknowledge “unceded” lands? — shifts the issue away from idealism to realpolitik: Most First Nations that never signed treaties that cede land have little wish to do so now.

That’s especially the case in B.C., which is unusual in Canada for the lack of treaties signed before the 1900s. SFU public policy analyst John Richards believes the term “unceded” is a carry-over from three decades ago, when many believed the path to reconciliation meant signing treaties leading to Indigenous self-government.

That era has receded. Phillip is among those who oppose B.C.’s entire treaty process, saying it’s “fundamentally flawed” and will lead to the “extinguishment” of First Nations’ entitlements to territories.

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Last year, when the hereditary chiefs of the Wet’suwet’en and their supporters blockaded trains and vehicles to protest a B.C.-government-backed natural gas pipeline across traditional territory, one of their chiefs, Na’moks, made it clear he has no intention of ceding land.

“This in no way resembles any form of treaty. We’re not here for a treaty,” Na’moks said. The hereditary chief acknowledged, however, the elected, mostly female band chiefs of the Wet’suwet’en disagree with him on what to do with the land. Division runs deep.

While debate flies over how many of B.C.’s 200 First Nations are serious about treaty negotiations, even the B.C. Treaty Commission, which has tried to put the most positive face on things since it began 28 years ago, admits only seven have been completed.

While most of the more than 400 First Nations in the rest of Canada signed treaties centuries ago, the B.C. Treaty Commission website suggests about half of B.C.’s First Nations are not even in negotiations. And only a handful are anywhere near the end of the six-step process, which critics say is glacial and inconclusive.

First Nations differ widely over acknowledging ‘unceded’ land

Compared to land acknowledgments in Eastern Canada, which rarely mention “unceded,” the emphasis in B.C. on reciting that most of the land has not been ceded appears to be an attempt to drive home the moral onus on settler society to come to some sort of settlement.

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“Unceded territory, put bluntly, means blatantly stolen land,” Métis artist and educator Suzanne Keeptwo declares in her new book, We All Go Back to the Land: The Who, What and Why of Land Acknowledgments.

Keeptwo maintains most land acknowledgments, even those spoken from the heart, “just aren’t good enough.”

She joins many Indigenous people in saying acknowledgments are increasingly experienced as “tedious, performative, tokenistic and rhetorical.” Her book pushes for non-Indigenous community leaders to spend more effort and money to prepare expansive land acknowledgments, preferably delivered by paid Indigenous elders.

“They — colonialist society, Euro-Canadians and new Canadians — have come to claim the land as their own,” says Keeptwo. Instead of advocating the ceding of land, she wants North America’s “Original people”  to stand up for something larger — sovereignty. The first paragraph of her book says: “I firmly state that the belief systems and ethics of the Original people were far superior to European belief and value systems.”

While Keeptwo campaigns to improve land acknowledgments, Ellis Ross, a former chief councillor of the Haisla First Nation south of Kitimat, simply dismisses the rites as “empty gestures.”

The MLA for the riding of Skeena says they “do nothing for the real issues facing First Nations — like poverty, suicides or children going into government care or imprisonment. I’ve yet to meet anyone who uses this language talk about anything meaningful or practical, something which addresses the social issues that we face today.”

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Ross thinks most Canadians have no idea what “unceded” means.

“The word is meaningless without context,” Ross says. “People from all walks of life don’t know much about the nature of Aboriginal rights, title case law, the Indian Act, Section 35 of the Constitution Act (which in 1982 recognized the rights of Indigenous peoples) or treaty negotiations.”

Ellis, who is running for the leadership of the B.C. Liberals, compares advocates’ need to stress that land is unceded to “tearing down statues” of colonial figures.

Tsawwassen’s Baird, who generally approves of land acknowledgments because they move Indigenous issues into a wider sphere, says the term “unceded” is more of “a political statement” than a legal one.

“It means we’ve never given up our land, regardless of what’s been imposed on us. And it means First Nations want their rights recognized and respected — without having to give up anything.”

The downside is “many people repeat the term without even knowing how it’s spelled or what it means. It defeats the purpose,” Baird says, referring to the way some incorrectly spell the word as “unseeded” or even “unseated.”

Squamish Nation councillor Khelsilem tends to agree, expressing his skepticism on social media.

“Do not know how to non-awkwardly tell people when their awkward land acknowledgment is not needed. … Sometimes (they’re) so cheesy and unnecessary,” Khelsilem tweeted.

Canadian society, Khelsilem says, seems to have accepted the “truth” bound up in land acknowledgments. Now, the focus, he said, is on “the need to move to the reconciliation work.”

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SFU’s Richards, a specialist in Indigenous policy, believes not much is to be gained by analyzing what people mean when they cite unceded lands. He calls it a “fashionable gesture” that has become outdated.

Rather than offering up slogans, Richards refers to how Gareth Morley, a lawyer in the B.C. Attorney General’s office, says a great deal of “practical wisdom,” not rhetoric, is needed to resolve land conflicts.

Under Ellis’s leadership, the Haisla chose not to pursue the kind of self-government that would include ceding some traditional territory, preferring to opt instead for side agreements. Ellis, for instance, signed a $50-million deal with Kitimat LNG to build a liquefied natural gas plant on a Haisla reserve.

“I took my band out of treaty negotiations because I could see we could achieve everything we wanted without the complex and costly exercise of treaty negotiations — or settling rights and title overall,” Ellis says.

“Our band’s attitudes weren’t easy to change. We went through community infighting, backed by external meddling. It was the darkest days of my life. But today’s success of our bands and people made it all worthwhile.”

As a result of entering into ancillary agreements rather than “ceding” land, the Haisla continue to receive government funding for housing, health care and other services, while members forgo paying certain taxes.

That mirrors the general strategy of Greater Vancouver’s Musqueam, Squamish and Tsleil-Waututh Nations, which have signed multibillion-dollar agreements that provide them control over large swaths of high-priced urban land.

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The Squamish Nation, with Khelsilem as spokesperson, is planning 11 condo towers on the Kitsilano side of the Burrard Bridge. The Musqueam are building luxury condos near the University of B.C. All three First Nations are combining to do extensive development along Vancouver’s Cambie Street and on the one-kilometre-long Jericho Lands.

Kent McNeil, an Osgoode Hall law professor emeritus, explains the approach. It should be possible for Indigenous groups, he says, to gain greater negotiating power with governments without ceding their “inherent” traditional rights, as referred to in Section 35 of the Constitution.

By stitching together lucrative side agreements with governments, McNeil says, Section 35 potentially gives First Nations more “self-governance authority” than would a treaty, which comes with “clearly defined powers” that are more narrow.

Complicating things even further, the B.C. Treaty Commission goes out of its way to encourage wary First Nations to enter the process by making the bold statement they don’t really have to “cede” any land — treaties “do not extinguish Indigenous rights and title.”

Tsawwassen treaty doesn’t include word ‘ceded’

First Nations in B.C. that have signed full treaties, which bring self-government, are the northern Nisga’a, Vancouver Island’s Maa-nulth, Sunshine Coast’s Tla’amin and Metro Vancouver’s Tsawwassen.

Despite decisive displays of improvement on Tsawwassen First Nation land in South Delta, the nation is often attacked by other Indigenous leaders who state, among other things, that the TFN ceded its inherent claim to 99 per cent of the territory over which members once roamed.

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What the TFN ended up with is jurisdiction over seven square kilometres of property in South Delta at the entrance to the ferry terminal, a region roughly twice the size of Vancouver’s Stanley Park.

Critics, including the Union of B.C. Indian Chiefs, say the Tsawwassen First Nation could have carved out a better deal. Resistance to the TFN deal has also long come from neighbouring First Nations, including on Vancouver Island, who make competing claims to the same territory.

Tsawwassen Chief Ken Baird feels the sting of the complaints. He is “disillusioned” when he sees other tribal groups “becoming very prosperous” without taking on the obligations of a treaty. The majority of the Tsawwassen First Nation’s 480 members, however, have chosen to focus on building two shopping malls and large tracts of housing.

The current chief’s sister, Kim Baird, who negotiated the 12-year-old treaty, wishes Indigenous activists would stop “beating up” the TFN. “The activists hate the treaty process so much; they say we’re sellouts because we’ve ceded and given up everything.”

Adding another twist to the puzzle around the word “unceded,” Baird explains that, even though the Tsawwassen signed an agreement that gave them authority over a defined chunk of land, she made sure the word “ceded” was nowhere to be found in the deal.

“Instead of saying we’ve ceded the land, I simply say we’ve sorted out our agreement with Canada about our territory. We can really, really get hung up on these legal terms. It’s too easy to get really obsessed about terms, which have very little impact on people’s day-to-day lives.”

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Every First Nation will have to come up with its own assertions and negotiations about territory, she says. “There are many paths to reconciliation. They will be super-complex and long-term. We’re only at the beginning.”

A broader view of land acknowledgments

For yet another perspective on land acknowledgments, there is Harold R. Johnson, a former trapper, logger and Crown prosecutor who now lives on Gabriola Island writing books.

The Métis author of Firewater: How Alcohol Is Killing My People (and Yours) generally likes territorial acknowledgments because they “make our story stronger.” Putting it more profanely, Johnson says they’re a way for people to “show they give a s—t.”

Since he recognizes most Indigenous people didn’t get much from their early treaties while settler society “got the right to build cities,” Johnson supports almost any effort to strengthen respect for Indigenous peoples’ relationship with the mountains, animals and rivers. Regardless of treaties or billion-dollar side agreements, Johnson says there is still lots to work out about what Indigenous “sovereignty” will exactly mean. It will take generations to clarify.

He muses about the importance of sharing the land. “What’s important is protecting the land for everybody.” As a lawyer, he’s open to talking about deals and unceded land, but he wants to remind people that treaties are about much more than legal contracts.

In that way, he adopts the universalistic approach of Robert Joseph, a hereditary chief of the Gwawaenuk First Nation on Vancouver Island, who says land acknowledgments are an act of reconciliation, “a very decolonizing and Indigenizing act.”

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But Joseph also reminds people that, no matter how much rage they feel toward settler society: “No one is leaving.” In other words, tens of millions of people who have indirectly “benefited” from colonialism are not about to depart the country.

Johnson and Joseph believe Indigenous people, European settlers and more recent immigrants and refugees will have to come to some understandings. Indeed, Johnson would like to “protect the land for everyone,” since he considers it sacred.

“I’d like to see an acknowledgment of the shared Earth.”

Taking a broad philosophical approach to the difficult question “Whose land are we on?” Johnson suggests territorial acknowledgments could actually be a way for all Canadians to affirm: “I belong here. I don’t own the land. It owns me.”

dtodd@postmedia.com

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