It's actually surprising there are so few native blockades, considering the violence that's been done to First Nations communities A Six Nations protester mans a barricade in April near Caledonia, Ont. It seems that our dominant society is incapable of really hearing, understanding and acting swiftly, broadly and generously upon native grievances.

Andrew Orkin, Citizen Special
Published: Wednesday, May 10, 2006
Ottawa Citizen

This time the Indians are occupying a new non-native subdivision on land they say is theirs in Caledonia, Ont. A court injunction issued by a non-native judge is being defied. Citing signs of Warrior involvement or the influx of Indians from other communities, the OPP raided the occupation and arrested the occupiers "without violence." Many more Indians then barricaded Highway 6. Six Nations Band Council says the occupiers are renegades and there is no recognized land claim involved. The Haudenosaunee blockaders have allegiance only to their ancient Six Nations confederacy traditional government. They are demanding nation-to-nation discussions with the federal Crown.

Frustration grows among local non-natives. Some are claiming that Caledonia is theirs by virtue of "conquest." Ministers and the provincial and federal governments say the occupiers are "illegals" because the Indians "sold or surrendered" their land in the 1800s and now have only a reserve. At the same time, these ministers call repeatedly for a peaceful outcome. Ironically, a judicial inquiry into the shooting death of Dudley George at Ipperwash a decade ago grinds on in Forest, dissecting that Indian land occupation and its own ex parte (only one side appeared in court) injunction, renegades, police raid, arrests, ministerial pronouncements of illegality, and the state use of force.

It may be beneficial, and maybe even save some lives, if we explore the meaning of some of the key terms here.

Illegals: An injunction means the Indian occupiers are "illegals," right? The mayor of Oka said so in 1990; Mike Harris said so in 1995; and Ontario government officials say so now.

Wrong. It means only that a court, usually on the basis of a summary ex parte injunction hearing, has ordered the occupiers to leave or face arrest. The municipality in Oka in 1990, the Ministry of Natural Resources at Ipperwash in 1995, the City of Hamilton in the Red Hill Valley in 2005, all had injunctions, as does the developer at Caledonia.

At Ipperwash for example, other courts found later that aboriginals had acted with "colour of right" because of their genuine and well-founded belief that the land was rightfully theirs. At Oka, Burnt Church and Ipperwash, occupier-arrestees were mostly or all later acquitted of all charges.

Conquest: Here I will quote the globally important 4,500-page 1996 final report of the Royal Commission on Aboriginal Peoples (RCAP) authored by (among others) Supreme Court Justice Bertha Wilson and Quebec Court of Appeal Justice Rene Dussault (which unfortunately sank unread like a stone soon after it was released): "There was no conquest. Early in the contact period the relationship was one of peaceful coexistence and non-interference.

It was mainly after Confederation that Canada began to appropriate large tracts of land to house the ever-increasing influx of settlers and that the process of colonization and domination of the aboriginal population began. No one asked them whether they wanted to be British subjects or Canadian citizens. They were simply herded into small reserves to make way for development and at Confederation were assigned to the exclusive jurisdiction of the Parliament of Canada."

Indians from other communities: In October 1995, the federal government invited and sponsored Canadians from every direction to converge on Montreal for a giant demonstration to help defeat the secessionists and save the nation. Ahem ... Indians can't do that too, to assist their ancient nation?

Land claims: Here again I'll quote Wilson and Dussault et al: "Opinion is virtually unanimous that the present system does not work. The system is generally inequitable, inefficient, time consuming and far too expensive. And it places the Department of Indian Affairs in a clear conflict of interest as funding agent, defence counsel, judge and jury.

"... One of the most significant weaknesses of comprehensive land-claims policy is the lack of any provision for interim measures before submission of a comprehensive claim and during negotiations. Governments are free to create new third-party interests on the traditional lands of aboriginal claimants right up until the moment a claims agreement is signed. It should not be necessary for aboriginal people to mount blockades to obtain interim measures while their assertions of title are being dealt with."

The Caledonia occupiers are explicitly not asserting a "land claim." They are simply taking back their land because they state it has been stolen from them by the Crown and they have no faith that it will be returned through a land claim, especially once it has had subdivisions built on it.

Surrender or sale: RCAP found that "Land reserved for aboriginal people was steadily whittled away after its original allocation. Almost two-thirds of it has 'disappeared' by various means since Confederation. In some cases, the government failed to deliver as much land as specified in a treaty. In other cases, it expropriated or sold reserved land, rarely with First Nations as willing vendors. Once in a while, outright fraud took place.

"Even when First Nations were able to keep hold of reserved land, the government sometimes sold its resources to outsiders. "... The history of these losses includes the abject failure of the Indian Affairs department's stewardship of reserves and other aboriginal assets. As a result," RCAP found, "aboriginal people have been impoverished, deprived of the tools necessary for self-sufficiency and self-reliance. It is hardly surprising that the most intense conflicts between aboriginal and non-aboriginal people centre on the use and control of land."

Blockades: As native frustration inevitably grows at the uselessness of official processes, they resort to blockades. It surprises me there are so few of them, because at the current rate the many thousands of outstanding land claims will take many centuries to be addressed.

More important, is it not high time for the dominant society -- the non-native "rest of us" -- to realize that the corrosive, transcontinental 200-year-old legal and physical blockade and siege by the Crown and its settlers of entire aboriginal societies and their people, governments, economies, legal systems, territories and resources is still under way?

From my study of history in such contexts as minority-rule Rhodesia, apartheid South Africa, Czarist Russia, Nazi Germany or colonial India, it seems to me that dominant societies are not particularly good at recognizing the essential structure of systemic injustices being maintained or perpetrated in respect of subjugated peoples while it's all under way.

They are also not particularly attentive to or comprehending of victims' contemporaneous entreaties that what's being done to, or with them, is fundamentally wrong, and why.

That's all left for much later, if ever, when the monuments and museums of regret get built, or the truth and reconciliation commissions get staged, or occasionally when things just go seriously wrong.

In the 30 years I have lived in Canada, I have heard indigenous populations cry out that they they are experiencing unjust impoverishment, displacement, dispossession, racist oppression and abuse, neglect, state violence or even cultural genocide at the hands of the Crown.

We may disagree with their various characterizations, but it seems to me that our dominant society is determinedly incapable of really hearing, understanding and acting swiftly, broadly and generously upon the elements of native grievances and complaints that are demonstrably true.

I have also heard some remarkable non-native expressions of sympathy, understanding and solidarity, but much more frequently and consistently, and sometimes from surprising sources, I have heard strong skepticism, rejection, dismissal, hostility and mean-spiritedness, and ongoing insistence on policies of assimilation, extinguishment and renewed coercion.

I have lived through numerous aboriginal blockades and occupations, and have even come to represent some of their players and victims as legal counsel.

Canada, it now seems to me, is a colonial country that is still insistently in the very depths of its colonial experience. It is not meaningfully discussing or commencing its long-overdue decolonization any more readily. Rather, it is still engaged in ignoring, perpetuating and entrenching, or even denying it. Wilson, Dussault and their fellow RCAP commissioners reported a decade ago that "We have before us an agenda of decolonizing the relationship between aboriginal and non-aboriginal people in Canada -- an agenda that the experience in other societies demonstrates is not an easy road to follow."

A good place to start attending to all this -- remembering that colonialism is a violation of human rights that harms and stunts present and future generations -- might be to discuss and clarify the terminology we all use, and to start taking to heart some of the many clarion commission reports and court judgments from recent decades that warn that the path we are on is fundamentally wrong. Andrew Orkin is a Hamilton-based human rights lawyer who has represented aboriginal peoples in a number of Canadian provinces and territories.

© The Ottawa Citizen 2006