Delgamuukw and decolonization

December 11, 2021 marked the 24th anniversary of the Delgamuukw ruling by the Supreme Court of Canada. Celebrations of this pivotal moment are conspicuously absent in our society. In fact, it is probably a safe assumption that many living on the land in question, and across the rest of British Columbia—much less the entire country—are not aware of what the Delgamuukw ruling is or what it represents.

The Delgamuukw decision confirmed that inherent Aboriginal title to unceded land exists where Indigenous peoples have evidence, such as oral histories, demonstrating historic (pre-sovereignty) governance and stewardship of territories of residence and land use. In the Delgamuukw case, both the Wet’suwet’en and Gitxsan nations clearly demonstrated fulfillment of the criteria laid out, and therefore have legal authority to rights and title over their territories.

Given that many Canadians lack general knowledge about Aboriginal title, the higher education sector, as a collection of sizable public institutions tasked with knowledge construction and distribution, has a significant opportunity to fill the gap.

Recently uncovered evidence points to why Delgamuukw is not well known despite being central to the highly publicized ‘conflict’ involving Coastal GasLink’s pipeline project under construction on Wet’suwet’en territory. The fact this landmark legal case threatens ‘business as usual’ across BC is a truth that governments of all jurisdictions, as well as private enterprise and Crown corporations, have coordinated to keep quiet.

A thorough investigation by The Narwhal reveals the extent to which industry and government actively aim to achieve settlements that effectively extinguish Indigenous title to unceded land. In light of these revelations, post-secondary organizations face a critical and desperate need for public support of the rule of law, which is trampled upon on a daily basis.

No agreement, no forfeit

Most of the land across BC is unceded and is not included in the numbered treaties between Canada and First Nations which established treaty land, also called Crown land (the numbered treaties are shared partnership agreements that were signed from positions of mutual strength for mutual benefit, and do not constitute land cessations even though they have been implemented as such).

In situations where no treaties were signed, such as the territory involved in the Delgamuukw decision, legal authority to exercise Aboriginal title can be established, as both the Gitxsan and Wet’suwet’en nations did through evidence of their hereditary chief system of governance structures that have existed from time immemorial. The governance structure of the Wet’suwet’en nation, for example, includes five clans and 13 hereditary house groups (see this infographic on the Unist’ot’en webpage).

The inherent rights of Indigenous peoples who establish Aboriginal title to unceded land include decision-making authority over large scale projects that occur within these jurisdictions. Extractive industries seeking access to resources from within Indigenous territories must have consent from the Indigenous people who have title to the land.

The hereditary chiefs of Wet’suwet’en have not given consent to pipelines crossing their territory due to the ecological impact of oil spills and other potential disasters, which threaten pristine ecosystems relied upon for clean water and for traditional land use practices.

The Constitution of Canada (particularly section 35), the Supreme Court of Canada, and the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), as well as Wet’suwet’en and Gitxsan laws, all agree on the inherent rights that exist from Aboriginal title to the land.

And yet, on a regular basis, in the service of private corporations and at the behest of the provincial government, heavily militarized RCMP officers with semi-automatic assault rifles forcibly remove Wet’suwet’en elders, hereditary chiefs, women, and children from their own land and homes. In one such recent incident, journalists covering these events were arrested and thrown in jail by the RCMP—freedom of press violations that Canada routinely condemns the world over.

Where has the public voice of our higher education institutions been in the wake of these events?

Call it what it is

In recent years, post-secondary institutions (and a good many other organizations) have increasingly been paying lip service to ‘decolonization’ efforts. This is ostensibly being done in a spirit of reconciliation, and certainly some tangible steps are being taken toward implementing the Truth and Reconciliation Commission’s 94 Calls to Action.

For example, the University of British Columbia has an Indigenous Strategic Plan that underscores the need to uphold Indigenous rights, and acknowledges campus locations built on unceded land (it does not address Aboriginal title to unceded land). Within the action items of the plan, Goal 2 speaks to the implementation of a communications strategy to raise awareness about the unceded land upon which various campus buildings are located, but the scope is limited to an internal audience.

Likewise, Simon Fraser University acknowledges the unceded land upon which its campuses are situated, and is undertaking a number of initiatives to advance reconciliation. Again, however, the scope of these initiatives focus on the need for internal change, and Aboriginal title is not addressed.

The University of Northern British Columbia has a similar acknowledgement of unceded lands on which certain campus facilities are located. And, while its Indigenous Service Plan invokes the provincial government’s passing of legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples Act, there is no connection made to the legal authority this provides in cases where Aboriginal title exists.

Examples of so-called decolonization and Indigenization initiatives within post-secondary organizations are increasingly the norm.

Part of what is problematic, however, stems from the term ‘decolonization’ itself.

Linguistically, the use of the prefix ‘de-‘ indicates undoing or reversing something that was done. As a result, it begs consideration of the narrative that the term serves to reinforce: the idea that colonization is some action that was completed in the past.

The fact that colonization is ongoing in Canada is an uncomfortable truth, and it is morally and emotionally easier to carry on as though the project of colonization resides in a distant past that we can disassociate from. If this wasn’t the case, then influential public organizations such as post-secondary institutions might respond differently—they might have adopted a different term and accompanying actions to address the reality of the present situation rather than vague ‘decolonization’ efforts.

As it stands, post-secondary institutions are uniquely positioned as large public organizations to take more meaningful action toward truth and reconciliation, specifically regarding clear instances of ongoing colonization.

The documents and email correspondence recovered by The Narwhal investigation reveal lobbyists from various sectors, including oil and gas, mining, real estate, and forestry pressuring the government to obtain surrender of Indigenous rights and title.

The following organizations and individuals were named in the investigation, and they actively attempted to undermine the significance of Delgamuukw immediately following the Supreme Court’s ruling: BC Council of Forest Industries (then VP Marlie Beets); Fisheries Council of BC (then president Mike Hunter); BC Cattlemen’s Association (then director Mary MacGregor); and the BC Ministry of Forests – Aboriginal Affairs (then director John Caul).

Securing certainty for continued and unfettered access to unceded lands for extractive and other industrial activities continues to be the aim. This represents active and ongoing colonization, where the only acceptable way forward for the status quo is seeking a final solution of extinguishing Indigenous rights and title to the land.

Any public lip service paid to ‘decolonization’ by post-secondary organizations ought to be backed by a moral obligation to act in the face of colonial harms being perpetrated today.

Responding in real time

There are great strides being made within academia as far as embracing and adopting decolonial pedagogies and research frameworks such as Two Eyed Seeing (Etuaptmumk), which intentionally incorporate Western scientific methods together with Indigenous ways of knowing and being. However, despite leading to a more comprehensive body of knowledge and understanding, academic work by its very nature is slow. It is careful and deliberate in the service of theory building and testing, in order to inform good practices.

While such work is critically important, it is not enough, particularly when rights violations are happening in plain sight: industry disregard for constitutional rights upheld by the Supreme Court, displays of gross militarization by the RCMP, and government jurisdictions at the federal, provincial, and municipal levels enabling both.

It is not sufficient for post-secondary institutions to merely make public statements about what steps are being taken with regard to decolonial efforts within higher education at the curricular and research levels.

As influential public institutions, a responsibility exists at the organizational level to publicly name and condemn clear instances of ongoing colonization that are happening—particularly for institutions built on unceded land, which includes the majority of BC.

Representation matters

Unless one is directly experiencing colonial violence in the here and now, it may be difficult to respond with urgency to the ongoing crimes of colonization taking place on unceded land. This is why representation matters. People of privilege, the vast majority of folks in leadership and decision-making roles, have the luxury of understanding colonial oppression only as an abstract concept. Thus, the public response from academic organizations speaks to abstract ideas of truth and reconciliation.

We must ensure leadership positions are occupied by Indigenous people, those who have direct community experience and can speak to landmark legal rulings about Indigenous rights and title so that public organizations are truly representative. There are plenty of qualified candidates—people with the requisite education and experience who also have elders, aunties, cousins, and community members being violently removed from their own land and homes. These are the voices post-secondary can and should amplify.

Wet’suwet’en and Gitxsan nations, along with other First Nations, have gifted our society with an opportunity for the redress of historical wrongs. There is an alternative way forward, together, with the well-being of the land and our relationships to it and to each other at the forefront.

Given the increasing regularity of natural disasters we are facing due to climate instability, standing with local communities to ensure healthy ecosystems that provide for our collective future is an urgent public responsibility. There’s no time like the present to celebrate Delgamuukw.

Brian Lorraine is an education professional, musician, and occasional freelance writer.