The struggle for aboriginal rights and rule of law

People's Front Public Forum on Political Renewal

TORONTO -- ON SATURDAY, October 23, Bill Lightbown, an Aboriginal elder of Kootenay ancestry, addressed the People's Front Public Forum on Political Renewal on the subject of The Struggle for Aboriginal Rights and Rule of Law. A retired fisherman, Lightbown is past president of the BC Association of Non-Status Indians and founding member, as well as past president, of the United Native Nations of British Columbia.

Lightbown began his presentation by saying that while the subject he would be addressing relates particularly to the Aboriginal peoples, it has its reflection in the broader question of what kind of society we want to live in. "What do we really want?" he asked. "What kind of a place do we want to live in, in terms of relating to each other, and I think that's what the discussion here is all about. Every part of this discussion is related to creating a better society."

Every society must be based on rule of law

Lightbown emphasized the importance of society being based on rule of law.

"Every society in the world," he said, "no matter where it is, has to be based upon an agreement and an understanding of the rule of law. ... (T)hese laws also have to apply to every person in that particular society, whether they happen to be the police, or leader of the government of the day."

He then turned to the situation in Canada, reiterating his main point: "There is the absolute need, at this particular time, to identify and establish the kind of laws by which we all must live. This is not a matter of an imperative that is dictated and handed down. It is the responsibility of all citizens to be involved in deciding and laying out those kinds of laws by which we all have to live."

Canada: "a structure based on quicksand"

By way of introducing his remarks on the situation in Canada, Lightbown said: "You cannot create a sound, strong structure based upon quicksand. It has to have a solid base and it has to be based upon the truth and the reality of the country and the people in it. Presently, Canada is based upon a lie. (It) is based upon assumptions and the breaking of laws, moral laws, and what are becoming accepted international laws."

The assumptions, he said, are "that you can go onto somebody's property and plant your flag and declare your ownership of that particular property by planting that flag (and) that this gives you some legal right to take control of that particular area (and) decide the conditions under which the rightful owners can continue to reside on the land."

"This is what has happened in Canada," Lightbown said. " Europeans came to this continent, planted their flag, declared themselves the new owners of the land, and declared their jurisdictional right to lay down the laws, rules and regulations that would apply from that day forward."

Lightbown stated that this process, which was carried out through all sorts of methods to assert power and authority, took place throughout the continents of the Americas, noting that the Aboriginal population in North and Central America numbered in excess of a hundred and fifty million in pre-colonial times.

Canadian genocidal policy

Stating that the treatment to which the Aboriginal peoples were subjected "cannot be called anything other than genocide," Lightbown explained: "It destroyed the cultures of the Aboriginal people, their languages, their independence and their right to self-determination, the right to make their own decisions. It is very clear that this is a form of genocide." Using the issue of residential schools to make his point, Lightbown said that it is only recent years that the injustices committed against the Aboriginal peoples have come to the attention of the Canadian public and that it still only has a small amount of information and understanding about some things. "You only have a small inkling of the damage that was done to our people at that time," Lightbown said, adding that Canadian have "to begin to understand what this whole Aboriginal issue is all about."

"The Indian Question"

Lightbown then went to the period between 1890 and 1900, when the governments of Canada became concerned with what they referred to as "the Indian question." He described their approach: "We're going to have to solve "the Indian question." We are going to take your children and put them in schools and we're going to do all of these other kinds of things, and by 1910 there shouldn't be any Indian problem left because all of the Aboriginal people will have become part of the body politic and their condition will be no different than that of any other citizens."

The reality proved quite different. "The reality ," he said, "is that we were denied access to the opportunities that non-Aboriginal people in this country were given, the opportunity to access education and jobs. We were told: 'You should come and get an education because there is a place for you in Canadian society.' A lot of our people did get educated and when we got there into Canadian society, we suddenly found out there were no place for us. There was never any intention of creating a place for us."

The old history is what we live today

Lightbown said that "to build a good place for all of us to live in this country, we have to start at the beginning." He argued against the notion that he frequently hears, according to which there is no point in raising "old history." "That old history," Lightbown pointed out, "is what our people are still living today. We are still suffering under that old history. When that has been remedied, maybe we can take our place in society with the rest of people, side by side working together for a common cause."

He said that while he, as an individual, can say that he is "already half-way to standing side by side with the rest of Canadians," the issue of the Aboriginal peoples as a collective people whose rights are denied, remains.

Recognizing the existing laws

Going further into the matter of rule of law, Lightbown said that some of the existing laws in Canada do protect the interests of the Aboriginal people. "There were laws written during the colonizing process, starting back in the late 1600's and through the 1700's, that clearly established the recognition of the sovereignty of the Aboriginal nations in North America and clearly identified their right to self-determination within their territories without any infringements by non-Aboriginal people." These laws, he said, clearly established that territories that had not been ceded by the Aboriginal nations to Britain did not fall under the jurisdiction of the new colonial government, he said.

Lightbown repudiated the notion that like "old history," "old laws" should be kept as part of the past, citing the Royal Proclamation of 1763 as an example. "In fact, it is not old law," he said, "It is new law and it was clearly established again in 1982 when the British North America Act was returned to Canada as the Canadian Constitution with some changes." In this regard, he said that one of the important changes brought about in the Constitution was the recognition of the existence of Aboriginal rights, as well as the legal process that must be followed to establish non-Aboriginal sovereignty over the Aboriginal territories, a process requiring the consent of the members of those various Aboriginal nations.

Besides the Royal Proclamation of 1763, there were dozens of other proclamations and Privy Council laws established through the colonizing process, Lightbown said. Furthermore, he explained, all of those laws that were not rescinded before 1982 are now part of the Canadian Constitution. On the significance of this, he said: "They are protected by the Constitution and cannot be rescinded by any government, without the agreement of the Aboriginal people in this country. Now if you don't think that this is a powerful legal weapon, you're mistaken because it is."

Lightbown then dealt with the problem of the refusal of the governments to recognize Aboriginal rights, notwithstanding their Charter protection.

"The reality," he said, "is that we have gradually been forced into a position of having to go through the courts and begin to establish the recognition of our legal, legitimate rights through the court process. This is going to accelerate." He said that the Aboriginal people themselves, in instances such as the negotiations in B.C. thought "we would be able to sit down with honourable governments and develop new treaty processes that we could all live by."

He continued, "Those of you who are not familiar with the so-called treaty making process going on in British Columbia would probably assume that it will solve this great problem and finally restore the rightful ownership of the land to the Aboriginal people. In fact, they were very, very dishonourable in their treatment of these matters at the negotiating table."

He emphasized the dishonesty and lack of integrity on the part of government representatives, as well as noting that Canadians are kept uninformed about these matters. "What you get is what they want you to hear, what they want you to know about the process," he said.

"What they are really going to do, because of their dishonesty and lack of integrity, is drive us back into the courts. It is going to happen. It has to happen because we are dealing with dishonourable people in government. We are not dealing with the citizens of Canada."

In conclusion, Lightbown told the Public Forum:

"When that time comes, I expect right-thinking citizens of Canada to be there behind us and demanding that the courts deal with these processes instead of attempting to stonewall us by saying, as the Supreme Court of Canada did when we finally made it to the courts with our legal questions: 'Oh, we're not going to deal with this legal question in the Supreme Court of Canada because it's not in the best interests of Canada. Never mind the law, never mind what the law says. We're not going to deal with it, because we might have to recognize that the territory that is in question actually belongs to the sovereign nation that still exists there.' They are not going to be able to do that without support from the citizens of Canada. That is what I call upon you to recognize today. I call upon you for that understanding and the knowledge that if we're going to create a better society in Canada, you must support the Aboriginal people in their struggle for the clear recognition of their legitimate rights. That is what I ask for today. Thank you."

TML Weekly of November 15, 1999

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