Feb 16/98: BC Report suggests war with natives


British Columbia Report
February 16, 1998
Dave Cunningham

[S.I.S.I.S. note: The following mainstream news article may contain biased or distorted information and may be missing pertinent facts and/or context. It is provided for reference only.]

Contrary to the experience of the US, where many native Indian bands were forced to surrender their lands in bloody conflict with conquering frontiersmen, colonization in BC, was a relatively peaceful affair. The colony's first governor, James Douglas, immediately began setting aside land for Indian reserves upon taking office in 1858, a process the province continued until 1924, when the federal government declared that BC had fully discharged all its native land obligations.

The recent Supreme Court of Canada Delgamuukw decision, however, has left some theoreticians wondering whether BC might have avoided its current native obligations had it opted instead for a more warlike approach. And, if so, would a present-day, technical "declaration of war" by Canada against its self-governing native bands - resulting in a forced surrender of their title - now extinguish it retroactively? "I don't like to get into that line of thinking," says Mel Smith, a constitutional lawyer in Victoria. Still, there have been several armed stand-offs in recent years between Indian warriors and Canadian Forces, including in Oka, Que. Ipperwash, Ont. and Gustafsen Lake, any one of which could well have escalated into a more prolonged battle.

That being the case, Mr. Smith says the hypothetical scenario may not be entirely outlandish. Legal rulings confirm that colonies established through conquest have significantly fewer obligations to their native populations. For example, the Privy Council declared in its 1938 Summit v. Strickland ruling that English common law could be introduced to settled colonies only to the extent such laws were "applicable to the conditions" of the colony. "Where, however, the territory was acquired by cession or conquest, it has always been considered that there was an absolute power in the Crown."

Jeffrey Tuomala, a lecturer in the law of war at the US Marine Corps University in Quantico, Virginia, says the American government signed treaties with several of the Indian bands that it had defeated in battle, treating them as "foreign" people, and awarding them in some cases near autonomy under US sovereignty. However, there was no international law at the time obliging the Americans to do so. The treaties resembled "acts of goodwill" more that legal compensation. Still, the legality of title extinguishment through cession has been overturned this century by the Hague Convention of 1907, and the Geneva Convention of 1949, which enable military conquerors only to "occupy" foreign lands, and for fixed-time periods.

As such, it is likely that any present-day "battle" between Canada and its Indian bands would leave native title intact, says Mr. Tuomala. Besides, says Mr. Smith, the military scenario presumes a leadership resolved to take a tough stance with natives. "I think the natives would win," he says. "[Aboriginal Affairs Minister John] Cashore would sue for peace in the first half hour."

[S.I.S.I.S. note: Mr Mel Smith has been constitutional advisor to 4 BC provincial governments including the NDP. His book Our Home or Native Land includes a forward by Rafe Mair, a former BC Cabinet minister and hotline host, who is also a constitutional advisor to the current NDP Premier Glen Clark.]

Letters to BC Report: bcreport@axionet.com

Back to SIS