“[I meditated for a long time] about the state of perpetual thankfulness that we as settlers should have for the privilege of our welcome to this place.” By “this place,” Mary Eberts, a longtime lawyer in private practice, means Canada. But when considering how long settlers have been dwelling on Indigenous land, she expresses that she “was thinking how presumptuous of [her] to thank someone for hosting [her] on this occasion.” Eberts spoke at the new installation of the Wallenberg Conferences – “that honour Raoul Wallenberg, the Swedish diplomat whose actions saved the lives of thousands of Jews in Hungary during the Second World War,” according to the conference page. The event, aptly entitled “Law vs. Justice: How the Courts are preparing the way for one last fatal round of treaty negotiations with Indigenous Peoples in Canada,” was organized with the help of the McGill Centre for Human Rights & Legal Pluralism. This event was also part of Indigenous Awareness Week.
Genocide is how Eberts likens the treatment of Indigenous people by Canada. The Convention on the Prevention and Punishment of the Crime of Genocide, which was adopted by the United Nations General Assembly (UNGA) on the December 9th 1948, states that there are five elements of genocide: killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about the physical destruction of the whole of part of the group, imposing measures intended to prevent birth within the group, and forcibly transferring children of the group to another group. “Certainly the intent was there [on the government’s behalf],” she asserts. Little doubt exists about whether there is substantial evidence to back this claim up.
Stephen Harper, Canadian Prime Minister, proudly exclaimed to the world at the G20 meeting in Pittsburgh in 2009 that, “[Canada...has] no history of colonization.” Conversely, Duncan Campbell Scott, a Canadian bureaucrat, prose writer, and poet, once proclaimed, “The happiest future for the Indian [sic] race is absorption into the general population, and this is the object of the policy of our government. The great forces of intermarriage and education will finally overcome the lingering traces of native custom and tradition.” He later followed up his previous comments with with, “Our objective is to continue until there is not a single Indian [sic] in Canada that has not been absorbed into the body politic [...]” Contrary to Harper’s claims, there are clear examples of colonization tainting Canada’s history.
Canada, by definition, is a settler colonial state. It is also one of four settler colonial states to vote against the UNGA Resolution on the Rights of Indigenous Peoples in 2007 (originally accepted 114 to 4). In 2010, it endorsed the resolution, but called it “aspirational” and not “legally binding,” reiterating that Canada was really trying to implement good and fair measures for Indigenous peoples because they had already apologized for the ‘Indian’ residential schools disaster. The fact that the Canadian government feels like it can wipe its hands clean of any responsibility with just an apology is in itself highly problematic, because, according to Eberts, “The dominant society coexists on and exercises exclusive jurisdictions over the territories and jurisdictions that Indigenous people refused to surrender.”
The Canadian Supreme Court has made it clear that Indigenous communities and the Canadian government should not resort to litigations in order to solve their problems, claiming instead that they need to turn to the negotiating table. To Eberts, the negotiation is an unequal one because the government has sovereignty, and First Peoples only have a right of occupation. “The First Peoples are going into this world of negotiation with more than one foot and one hand tied behind their back,” Eberts said.
Historically, Canada has a dreadful track record with negotiations. In 2007, it was reported that there were more than 1,300 claims filed against Canada. A professor at the University of Western Ontario made a conservative estimate that it would take the government approximately 50 years to resolve the claims filed at this rate. René Dussault, co-chair of the Royal Commission on Aboriginal Peoples, stated that Indigenous communities have less than a third of the land base accorded to them by the written terms of their historic treaties struck with the government. These failed, mainly because treaty terms were not carried out, or allocated land was later expropriated or sold, for highways, railways, hydro-lines, seaways, and cities.
Given the facts, one has to wonder what will happen at these negotiating tables. Eberts noted that the Federal government approaches these negotiating tables with a ‘take or leave it’ approach: “If the First Peoples don’t want it, then everything stalls.” The Crown’s Constitutional Duty to Consult and Accommodate Aboriginal and Treaty Rights makes it mandatory for the Federal government to sit and consult with First Peoples about whatever development project is being proposed or seeking a license.
Eberts stressed that, “The process does not give Aboriginal groups a veto over what can be done with land [...].” She added that, “The basis of consultation, or the duty to consult, is said to be the honour of the Crown: it is a principle that servants of the Crown must conduct themselves with honour when acting on behalf of the Sovereign.” So far, the representatives of the Crown in Canada have blatantly not conducted themselves with honour when dealing with Indigenous communities and land.
“The Supreme Court of Canada [acknowledges] that before the settlers came and stuck their flag on the shore, that Indigenous people had sovereignty over the land,” continued Eberts. The Supreme Court also fully acknowledges that Canada has a duty of reconciliation of land (among other things) to the Indigenous population, “but in my moments of cynicism,” Eberts claimed, “I think that the duty of reconciliations means that First Peoples have to reconcile themselves to the fact that they’re going to get kicked around by Canada yet again.”
In Ebert’s words, words that cannot be paraphrased, “Canada, do not do this in my name anymore, because I am sickened by what you do, I am ashamed by what you do,.Please treat First Peoples with respect and with dignity, and share Canada with them. Do not leave them [to] occupy the margins.” One solution to the problem is the answer of shared sovereignty over the land.
In direct response to her proposal, an Indigenous audience member responded, during the question and answer portion, that, “A shared sovereignty would be the Native people sanctioning thieves coming into our homes and stealing what is in our house, and then for us to say [that] we’re okay sharing what they have stolen from us.”
Essentially, Eberts’ closing statement holds an inherent truth that resonates with a long and problematic history of colonialism in Canada: “Canada does not have an [Indigenous] problem,” she declares, “Canada has a settler problem, and we have to fix it.”