Aboriginal Issues in Canada

A lot of nonsense is currently being spouted about the controversial topic of ‘aboriginal issues’ in Canada. In order to help disentangle this mess, I will here offer my thoughts on some pertinent aboriginal issues:

1. Aboriginal Title

Recently, the Supreme Court of Canada effectively established, with a decision, so-called ‘aboriginal title’ in vast swathes of land in British Columbia, with probable ramifications in other parts of Canada as well[1]. These lands were supposedly the ‘traditional’ or ‘ancestral’ lands of the Aboriginal groups claiming title to them. Was this a good decision by the court?

In any sensible set of rules for establishing initial title to lands, the title claimant must show that he occupied the land in question for a decent period of time and that he effected some sort of productive change in the land, such as clearing the land and making it suitable for cultivation. Did the aboriginal groups claiming ‘aboriginal title’ to these vast land areas do this? For most of the land in question, the answer is no. Rather, the land was part of their ‘traditional hunting/fishing grounds’ or some such.

This should not be sufficient for claiming full property title to lands. Otherwise, an individual could just catch one fish in an unclaimed lake and then claim the whole thing as his private property, or he could shoot one deer in a forest and then claim the whole forest as his own. This would not be a very intelligent way of determining initial title to lands, as the lands claimed by these hunters and fishermen would be too large for them to really care for and make productive. A smaller parcel claimed by a more intensive land-user such as a farmer is a lot more manageable by the claimant.

Can only land transformed into agricultural land be transformed into private property? This would seem to be unjustifiably biased in favour of agricultural uses. Thus, there should be a mechanism for transforming wilderness lands into private property. The creation of fences around the claimed property and paths/roads running through the claimed property could be a way of establishing title to wilderness lands, for the purposes of making it private lumber land or park land. Reasonable limits would have to be placed on this by the law and its judges to prevent people from claiming gigantic swathes of land via a giant perimeter fence and a sole path alone; but the general mechanism is sound.  

With these rules, what property claims by nomadic hunter-gatherers, as many of Canada’s aboriginal peoples used to be, should be recognized? Not many. Title to the land around their current camping grounds should be recognized, but only until they move on. Some aboriginal groups did supplement their hunting with agriculture, so title to the lands cleared and cultivated should be recognized.

2. The Treaties

The leaders of Canadian aboriginal groups routinely claim all kinds of special rights and privileges from the Canadian government, based on the existence of certain land transfer treaties signed in the 19^th century by aboriginal groups and the Canadian government. I will not go into the tortured legal interpretations which these old treaties have been given in order to make them relevant for the present day. Rather, I will argue that these treaties, because they concerned property which neither negotiating party should have had the right to, should be considered illegitimate and ignored.

The general aboriginal treaty process in Canada went as follows: the leadership of an aboriginal group claimed that they had sovereignty over a large swath of land and the Canadian government (or British colonial government, before Confederation) wanted to claim sovereignty over those lands for itself. With the significant military superiority of the settler government as the backdrop, most aboriginal group leaders decided to sign over ‘their lands’ via treaties, usually in exchange for some material goods, a bit of land to be ‘reserved’ for the use of the group, and general promises that the settler government would help look out for the well-being of the aboriginals in the group.

Let us take a look at what exactly was being exchanged here. The aboriginal leaders were giving ‘their lands’ to the settler government. How did these lands become ‘theirs’? Certainly not through the productive settlement and transformation of individually-manageable parcels of land, as discussed above. Rather, the aboriginal leaders claimed sovereignty over ‘their’ lands via naked assertion, coupled with ferocious violence used against any ‘trespassers’ from other aboriginal groups who encroached on these lands. No sensible set of property rules would allow such deeds to establish private property title over these lands. Hence, the aboriginal leaders shouldn’t have had the right to use these lands as a bargaining chip recognized in the first place.

How about the settler governments? If the modern, expansive interpretation of the treaties is to be believed, than the settler governments were pledging a constant stream of material aid to the aboriginals in the group for all of eternity. Was this material aid to be taken from the private property and estates of the negotiators and government officials of the time? No, the material aid was, and continues, to be transferred from the settler government’s taxpayers to the aboriginal groups. But, if a libertarian view is taken of the issue, this is just an illegitimate plunder contract; with the government to plunder the taxpayers and pledging to share some of the loot with the aboriginal groups. Even from the perspective of democratic theory such a transaction is dubious. Isn’t it undemocratic for the government of one time period to be making binding pledges involving the resources of the taxpayers of a future time period who had nothing to do with electing them?  

Thus, the vaunted treaties were agreements involving property which neither party should have had the recognized right to. As such, there is no reason why we, in the present day, should care what they said or consent to be bound by them.

3. Reserves

Modern Canadian aboriginal reserves are horrible little pockets of communism; frequently accompanied, unsurprisingly, by abysmal living conditions. Legal title to all lands in the reserves is held by the Crown, which basically means the Canadian federal government.  However: “First Nations have a recognized interest in reserve land that includes the right to exclusive use and occupation, inalienability and the communal nature of the interest.”[2]

Thus, the official title to the land is held by the federal government, while the political leadership of the reserve, the ‘band government’, has a recognized, protected interest in the land. Unfortunately, the individual aboriginal reserve inhabitant has no legal title or protected interest in the land that they occupy and use.

All individual reserve aboriginals can get is an ‘allotment’ of land which gives them ‘lawful possession’, but not ownership, of the land. These allotments must be approved by the Band Council and the federal Minister responsible for aboriginal issues. Individuals can transfer or sell their allotment to another band member or lease their land to a non-band member, but these transactions must first be approved by the Minister and the Band Council[3].

Over the years, the federal government has granted ‘First Nations’ more and more ‘self-government’ rights. This means that reserve affairs are increasingly administered more by the band governments of the reserve and less by the federal government itself. But the main issue with the reserves is not which government controls the awesome, communistic powers over individual reserve inhabitants’ lives; it is the fact that these powers exist in the first place! Neither detached federal government bureaucrats nor petty local ‘band’ tyrants should be able to wield such powers over individual aboriginal reserve inhabitants. These individuals should be granted full private property rights in the lands and houses that they possess and use.

4. Special Privileges

As discussed above, aboriginal groups claim that the old treaties entitle them to special privileges and material assistance from the Canadian government. For aboriginals living on reserves though, these privileges are counterbalanced by the horrible reserve policies discussed above. I would say that the best course would be to reverse the horrible reserve policies and reverse most of the special privileges based on illegitimate treaties at the same time.

I would, however, recommend keeping one of the special privileges intact. Currently, all income earned on reserves is exempt from taxation. Also, goods bought on or delivered to a reserve are exempt from sales taxation[4]. This privilege should be maintained in order to give reserve communities a badly-needed economic boost and because the government already has enough money to squander as is. Also, hopefully this would help ease the opposition of aboriginal ‘advocacy groups’ to the reforms proposed, although I am not exceedingly optimistic on this front.

5. ‘First Nations’

I refuse to use the politically-correct term, ‘First Nations’, to refer to Canada’s aboriginal peoples for a reason. It is highly unlikely that the ethnic groups that we currently call the aboriginal groups of certain regions were the ‘first’ ethnic group to inhabitant that territory. If the history of other parts of the world of which we know more about is any indication, the ancestors of the current aboriginal groups probably expelled, interbred with, or exterminated the ethnic group or groups that had previously inhabited that territory. That earlier ethnic group had probably done the same with an even earlier group, and so on.

To call the current aboriginal ethnic group living in that territory the ‘First Nation’ of that territory would be equivalent to calling the Franks, the Germanic tribe that invaded and conquered most of modern France after the collapse of the Western Roman Empire, the ‘First Nation’ of France. This would obviously be absurd as we know that an earlier people, the Gauls, inhabited France before the Frankish conquest. Just because we don’t know the characteristics of such an earlier group of inhabitants in the Canadian case, doesn’t mean that they didn’t exist; in all likelihood they did.

Besides the factual error involved, another reason why I object to the term ‘First Nation’ is because it reeks of a kind of racist superiority complex. If the white inhabitants of European countries insisted that non-white inhabitants call them the ‘First Nation’ of the country, all the leftists who love calling our aboriginals ‘First Nations’ would be outraged at the audacious racism. And yet, this is exactly what the Canadian aboriginals are insisting upon; they can just get away with it more easily because they’re not white. And every good anti-racism advocate knows that only white people can be racist…

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[1] http://www.theglobeandmail.com/news/national/supreme-court-expands-aboriginal-title-rights-in-unanimous-ruling/article19347252/

[2] https://www.aadnc-aandc.gc.ca/eng/1100100034737/1100100034738

[3] https://www.aadnc-aandc.gc.ca/eng/1100100034737/1100100034738

[4] http://www.cra-arc.gc.ca/brgnls/stts-eng.html#hdng3