The Importance of Integrating Indigenous Laws into Specific Claims Resolution
There is a need to creatively and meaningfully include Indigenous laws and ways of reaching resolution in resolving specific claims.
Canada’s reserve policy:
Displaced Indigenous Peoples from their territories;
Forcibly disrupted family, community, and Nation relationships, including with territory and resources.
A tool of Aboriginal Title denial and often a symbol of a failure to honour treaty promises.
Sometimes missed is the way in which Canada’s reserve policies were part of larger efforts to deny Indigenous laws.
While the reserve system was being implemented, laws and policies were enacted to prevent Indigenous Peoples from advancing their rights through legal or political action:
Potlatch prohibitions made gatherings where land claims or collective actions might be discussed illegal.
Women and their children and grandchildren were forcibly from their home communities – by laws that said they lost status or definition as an “Indian” and it was illegal to reside on reserve lands (contrary to many Indigenous laws). Gender inequality in the Indian Act meant that Indigenous women who married non-Indigenous men lost their legal Indian status – it was illegal for them to remain in their home communities.
Indigenous Peoples were prevented from hiring lawyers to pursue land claims from 1927 – 1951.[1]
The original policy was that all village sites, resource use areas, grave sites, and enclosed (fenced) lands would be reserved for Indigenous Peoples.
In many cases, the lands that were actually reserved or set aside were lands that were not considered usable or arable lands by Newcomers. In some cases, the reserves were difficult to access, or were otherwise unable to support Indigenous Peoples and their economies.
For example:
Many reserves that were created as fishing stations were so small that very little use could be made of them (especially as the fishing stocks dwindled and disappeared) and many were not even accessible because they were hemmed in by private lands.
In other cases, reserves were set aside but without a water allocation (or with a water allocation made later so below in priority to settlers who were granted higher priority). This meant that many reserve lands in desert-like areas were unusable because they lack water for domestic or agricultural or other purposes that might allow the Indigenous Peoples to sustain themselves on that land.
Lands were reserved but then cut off, sold, or taken for other purposes; and
Other areas, such as the federal government’s failure to fulfill treaty obligations or protect promised access to water or fish.
Even after reserves were created, they were subject to cutbacks where Newcomers and their governments or industries found other uses for lands reserved for Indigenous Peoples.