How a people, its chiefs and a chief justice have bravely ennobled the Canadian spirit.
Product of a fair deal: the author's prized deerskin gloves, purchased from an Aboriginal elder of the Tsilhqot'in nation.
Years ago, I came into possession of a pair of deerskin gloves through a transaction that involved two parties who brought different things to the table: me (the money), and an elderly aboriginal woman (the gloves). The exchange was, I believe, a fair one. She set the price, I paid it; she got the money, I got the gloves, which have remained among my most prized possessions.
The transaction was conducted with free and informed consent, a rare thing in this country when it comes to dealings between white settlers and Indigenous peoples.
Ours was admittedly a very small deal, but where it took place recently has become a very big deal in Canada. At the time, I was in Xeni Gwet'in, or the Nemiah Valley, in the heart of a large swath of territory claimed as their own by the Tsilhqot'in Nation -- the People of the Blue Water. (The Xeni Gwet'in are one of six communities that comprise the Tsilhqot'in national government.)
Xeni Gwet'in Chief Annie Williams served as translator and witness to the purchase of the gloves, but mostly she was helping me understand why the Xeni Gwet'in had, in 1989, unilaterally declared their territory to be an "Aboriginal Wilderness Preserve."
There was no legal force behind the declaration at the time, but the Tsilhqot'in people had a history of bucking convention that stretched back to one of the great moments of resistance in B.C. history, the so-called Chilcotin War of 1864. Then, an attempt to build a road from Bute Inlet up to the Cariboo goldfields was brought to an abrupt and bloody end when several members of the road crew were killed; in retribution, six Tsilhqot'in men were arrested, tried and eventually hanged, even though they were later proven not to have taken part in the original war party.
The upshot was the road never got built. Until the 1980s, when an explosion of logging and logging roads spread across the Chilcotin Plateau, the Nemiah Valley remained one of the remotest and most spectacular (undeclared) wilderness areas in all of Canada. Then, a few years after the Haida Nation out on the coast made its stand against B.C.'s logging companies, the Xeni Gwet'in made theirs.
According to Nen Duh Nen Jid Gwezit'in (the Nemiah Declaration of 1989), there would henceforth be no more commercial logging in the Nemiah Valley. There would be no mining, no flooding or dam construction on the area's principal lakes, and tellingly, no commercial road building. The declaration ended, "We are prepared to enforce and defend our Aboriginal rights in any way we are able."
That process formally started a year later when new Chief Roger William launched the Nemiah Trapline Action seeking a declaration of Aboriginal title over 438,000 hectares of the Cariboo-Chilcotin region. Soon an insult was added from Taseko Mines to the injury caused by commercial logging, as they'd discovered a large deposit of copper and gold near Teztan Biny (Fish Lake) and planned to flat out destroy the entire lake in order to get the gold out.
Said by some to be the image of Chief Klatsassan, among the six Tsilhqot'in members hanged in 1864 by the Crown for waging war on road-building settlers.
The court process in defence of the Tsilhqot'in's rights and title -- a long, ugly, unseemly and expensive battle, as they always are -- ended a few weeks ago when the Supreme Court of Canada affirmed Aboriginal title a quarter of a century after the Tslihqot'in called the question.
That might seem like a long time, but as Roger William said in a deposition opposing the mine two years ago, the struggle dates back to 1846, even before the Chilcotin War, when the British Crown asserted sovereignty before British Columbia even joined Confederation, something the Tsilhqot'in now view as merely the first chapter in a long "story of betrayal" for which governments have only now been called to account.
Super Unlawful BC
The Chilcotin resistance, then, is actually older than British Columbia itself. "Despite the horror we suffered, our story of resistance continues to be a story of Tsilhqot'in triumph," William said in 2012. Indeed, there is no greater triumph in the history of Aboriginal rights in this country than the affirmation by the Supreme Court of Canada in late June that the Tsilhqot'in have been telling truth all along.
By my reckoning, that means not a single deal that governments and industries have done with Aboriginal people in the entire history of this province has been lawful. They have consistently, repeatedly, deliberately and devastatingly denied Aboriginal people the right to free and informed consent and have shown contempt not just for their legal rights, but for their cultures, their well-being and their fundamental right to self-determination.
So what now?
For those of us who have documented, or joined, or merely followed -- in the media and the courts -- the struggles of the Nisga'a and the Haida and the Tla-o-qui-aht and the Tsleil-Waututh and the Haisla and the Gitga'at and the Heiltsuk, and indeed, all the First Nations of Canada, including the Tsilhqot'in -- what do we make of all this? Of this most famous of victories?
Outside Taseko Mines Ltd. 2012 annual meeting, from left: Tsilhqot'in national government Chief Joe Alphonse, Xeni Gwet'in Chief Marilyn Baptiste, Union of B.C. Indian Chiefs vice-president Bob Chamberlin, president Grand Chief Stewart Phillip and Council of Canadians chair Maude Barlow. Photo by David P. Ball.
Well, let's first accentuate the positive. Make no mistake, this is a spectacular victory for the Tsilhqot'in and an emphatic rebuke to the swindlers who have ruled and attempted to ruin this province since they first clapped eyes on the place. Finally, a rare serving of natural justice, and from the darkness of modern times, some news that offers a glimmer of hope for a better world.
But while pausing to savour what has just been won, it's hard not to worry that the barbarians are still at the gate, and may be all the more dangerous for being wounded.
To go back to Xeni Gwet'in for a moment, I bought those gloves when on assignment for CBC television visiting the Nemiah Valley to report a documentary series called The Battle for the Chilcotin. It was the first of many docs I was privileged to do for CBC that focused on the struggle of B.C. First Nations -- the Cheslatta, flooded from their lands; the Haisla, trying to save the Kitlope from logging; the Ingenika and Fort Ware people, flooded from their lands; the Nuu-chah-nulth, fighting for their place in the battle over Clayoquot Sound, and many more.
Those halcyon days, when CBC journalists were allowed to tell Canadian stories to Canadians, when we even dared to air the complaints of Aboriginal people at the downstream consequences of our having built an unnatural economy from the unchecked extraction of "natural" resources -- those exuberant, story-telling days have given way to a harrowing hollowing out of our public broadcaster to the point that, to cut costs, we are witnessing the imminent demise of in-house documentary production. Whose vision of Canada does that serve?
Where fear and favour abound
And it's not just the CBC. Where to look, across Canada's increasingly barren media landscape, for an articulation -- without fear or favour -- of what the Tsilhqot'in case means for Canada? We need good journalism because as the Tsilhqot'in case so aptly underlines, governments and industries can't be trusted to tell the truth. But what we get instead is mere reaction. "It's justice, but it means chaos," goes one headline in the Globe. In the National Pest, the front page declares "Ruling a 'game changer,'" while in the conjoined Financial Pest, "Pipelines take a hit" competes in the same edition with "'Sky is not falling' in B.C.," either because the paper cannot make sense of what the ruling means or it simply doesn't want to allow for the fact that maybe the sky, its resource grubbing sky, actually is falling in B.C. Although their business models are failing, our media corporations are as complicit in clinging to the status quo as our energy corporations, our miners and our logging companies. Seek no great truths from them.
Our governments? Prime Minister Stephen Harper leads a government that cannot be trusted on a single important issue, least of all any file that concedes anything to the environment or the natives or worse, both at once. B.C. Premier Christy Clark has to be running him a close second on that front, which makes it all the more odious to see her suddenly scurrying around the north of the province convening "chief-to-chief" meetings with native leaders she has hitherto ignored. They may be chiefs, but she isn't. Chiseler-to-chief meetings would be a more accurate phrase.
Our bureaucracies? There are good people in Ottawa and Victoria, but guess what they are doing during your summer break? They are grinding out talking points, protocols, positions, counter-positions, assessing damage control and cooking up generous lashings of spin in service of Premier Clark's interpretation that there is "some good stuff in the Supreme Court decision" that she thinks provides certainty and could even help "really reinvigorate the treaty process."
Really? What possible reason is there for any First Nation to stay in treaty talks that have only gone on as long as they have because the issue of title was not resolved? It is resolved now, and not in favour of the Crown. So the bureaucracy is assuredly scrambling to parse and elide the Supreme Court's decision in order to best arm the premier for a battle she has already lost when she walks into an "all-chiefs gathering" on September 11. If there were a kind of Geiger counter that measured hypocrisy, it would be deafening that day.
And what of the Aboriginal leadership? It is at just such a time that we most miss the oratory and diplomatic skills of former National Chief A-in-chut Shawn Atleo. That's not to confuse Atleo with the Assembly of First Nations, a flawed and now discredited organization that was both a launch pad and bomb crater for Atleo's leadership ambitions. Atleo will re-emerge at some point, and there are other good Indigenous leaders out there too. Roger William, for one, deserves centre stage in what happens next. He has proven himself immune to the blandishments of pretty much all comers, and the last thing First Nations need is for this coming September 11 to be remembered as a day of appeasement.
Supreme Court Chief Justice Beverley McLachlin: a string of judgements that restore a noble vision of Canada.
This is, after all, their moment. Our First Nations finally have a judgment that recognizes the enormity of the misjudgments that have been the only constant in the colonization of Canada. At a time when there is an almost pervasive loss of faith in the public institutions of this country (and many other countries for that matter), how much we yearn for our newly empowered First Nations communities to make decisions that have eluded all but one of our cornerstone institutions in Canada, by which I mean the Supreme Court of Canada itself.
Alone among our public institutions, the Supreme Court has managed to sustain a vision of a Canada that remains recognizable to Canadians, including our very first Canadians, and much of the credit for that can be laid at the feet of Madam Justice Beverley McLachlin herself.
It is one of the happier accidents of history that it was in 1989, the year the Tsilhqot'in launched their case in the B.C. Supreme Court, that Beverley McLachlin was promoted from being Chief Justice of that court in order to take up an appointment to the Supreme Court of Canada. She has served that court ever since, the past 14 years as its Chief Justice, and it was she who wrote the 8-0 judgement in favour of the Tsilhqot'in.
A moonlight mind
You can put it down to mere coincidence, but I believe there is an almost dreamlike serendipity in the fact that the most powerful judgment ever written in favour of Aboriginal rights in Canada -- possibly the most powerful such judgment anywhere in the world -- was written by arguably the only national leader in Canada whose stature has risen, not fallen, in the 25 fractious and dispiriting years we have just lived through.
Madame Justice Beverley McLachlin is not just a great judge at law, she is the greatest living judge of our national character, and its greatest defender. Masterfully, she has time and time again found a moral centre, all be they couched, as of course she must, in legal arguments that have confounded the worst excesses of a polity that has long since lost any sense of what Canada stands for. For two and a half decades now, she has exhibited a legal dexterity, an intellectual agility, purposeful leadership and enormous personal courage in taking on cases of such weight and complexity that any single one of them would defeat most of us to even understand, let alone render judgment on.
Tsilhqot'in Chief Roger William, upon hearing news of his people's court victory on June 26, 2014.
Just the other day I heard U.S. Supreme Court Associate Justice Stephen Breyer describe someone with a rare clarity of thought as having a "moonlight mind," and he could well have been describing Canada's Chief Justice. In recent months, her court has clarified many important issues for Canadians. On labour rights, the Court found for the union after a Walmart in Quebec closed its doors when workers dared to organize; on privacy rights, the court said police need a warrant to access our information stored with Internet service providers; on prostitution, it has stood up for sex-trade workers; on criminal justice, it has curbed the Tories' over-reach for mandatory minimum sentences; regarding its own composition, the court outright refused to be saddled with Stephen Harper's unqualified choice for the bench, Justice Marc Nadon. This has been every bit the doing of Beverley McLachlin, the most trusted voice in the land. And now this. In crafting the Tsilhqot'in decision, she ends a journey that she and Roger William set out on 25 years ago. They took very different paths to arrive at the same place. Between them, they have given a face and a voice, and finally, the force of law to help Canadians come to terms with the fact that we are all People of the Blue Water now. Indeed, we always have been.