00:00:00:17 – 00:00:20:10
Singing (Tla-o-qui-aht Master Carver and Historian Joseph Tutakwisnapšiƛ Martin, Board Director, IISAAK OLAM Foundation)

Woo woo woo ho ya.

(Eli Enns, Tla-o-qui-aht Nation Citizen, Co-Founder and CEO, IISAAK OLAM Foundation)
čukʷaa haʔuk!

Whoa whoa ho ya!
(Drumming)

00:00:20:10 – 00:00:51:04
(Eli Enns, Tla-o-qui-aht Nation Citizen, Co-Founder and CEO, IISAAK OLAM Foundation)

So the idea of Terra Nullius is a funny one. It’s controversial for a variety of reasons. And, one way, I think that’s – maybe a good approach is to look at the Indian Act from 1885 to 1951. During that period of the Indian Act. The Indian Act, by the way, was created in 1876.

00:00:51:06 – 00:01:29:15
But it had a variety of different versions. There was amendments and, whatnot along the way. Things were added, things were subtracted based on the times and the circumstances of the day. And, the 1885 to 1951 version of the Indian Act was, in my assessment of things, greatly affected by what became known eventually as the Red River Resistance.

00:01:29:15 – 00:03:03:05
And this was not just the Métis Nation. It was also, it also included First Nations of Northern Ontario, what we know today as Northern Ontario, Manitoba, like southern Manitoba, southern Saskatchewan.

It was not just the Métis, it was including the First Nations of those geo-political regions and, French diaspora. So following the aftermath of the Seven Years’ War, the remnants of New France were spread throughout North America, and there is a variety of small French settlements throughout the Prairie provinces.

And collectively, the Métis, the First Nations, and the French resisted the expansion of the British Empire through what was known as British North America at the time. The British North American Act of 1867, and what they required – and they were hot out of a war, by the way. They were 50, 55 years out of the War of 1812 with their cousins to the South, the newly formed United States of America.

00:03:03:05 – 00:03:37:14
The United States of America was only at that time 100 years old. You know, 1776 was the American Revolutionary War. You had the War of 1812, and then in this time of staving off of American expansionism, you’re looking at, 1770, 1767, the British North American Act, sorry, 1867, and then 1876 with the Indian Act.

00:03:37:20 – 00:04:40:02
And then there was this resistance. Some people sought to demonize. And during the last, however many decades, the Resistance of Métis, First Nations, and French settlements in northern Ontario, southern Manitoba, southern Saskatchewan was deemed to be a rebellion because that was convenient framing to justify the quelling of that rebellion by military style domestic police force, which was originally known as the North-West Mounted Police, and what would eventually become known as the Royal Canadian Mounted Police, the RCMP that we know today.

00:04:40:02 – 00:04:54:06
And it also justified the unlawful execution of the leaders of this so-called rebellion, which we now better refer to as a resistance.

00:04:54:06 – 00:05:22:16
So the Red River Resistance was French diaspora, First Nations, and their offspring, which was the Métis Nation that was born out of hundreds of years of coalescence. Geopolitically, economically, and genetic coalescence of European and Indigenous Nations coming together.

00:05:24:03 – 00:05:53:20
And so once the British North Americans and, you know, at that time, they were referred to as the ‘Redcoats’. So you might you might catch some of that in the sort of rhetoric of today, in the whole ‘No Kings rallies’, the ‘No Kings’ resistance, I would call it, rather than referring to it as a rebellion, as some might wish to.

00:05:53:20 – 00:06:19:22
And during those times that I speak of, when they were pushing northwest from around Thunder Bay, Ontario, and pushing to expand railways north into northern Ontario, northwestern Ontario, and then further through southern Manitoba, Saskatchewan, and Alberta. It was the coming of the Redcoats that was being resisted.

00:06:19:24 – 00:06:55:22
And, you know, if you remember from previous conversations, the Redcoats were inadequate during the War of 1812 to defend British North America against an attempt on total destruction of British North America that happened in 1812, the War of 1812, by the newly formed United States of America.

00:06:56:05 – 00:07:35:06
And so, as a result of this resistance – and by the way, the British North American government made promises. The only way, because the Métis and the French diaspora learned from the First Nations, a type of guerrilla warfare, like what today might be considered guerrilla warfare, which was, you know, in former times, European warfare, everyone would line up and, you know, you knew which team you were on, and everyone shot bullets at each other or cannons.

00:07:35:08 – 00:07:53:24
Well, Indigenous Peoples didn’t do war like that. We used advantages in knowledge of the Land and so, that’s why you may refer to it as a type of guerrilla warfare. And so their resistance was quite effective.

00:07:53:24 – 00:08:08:14
And to subdue the resistance, the British North American government made all kinds of promises. And you can look back into the recent court history.

00:08:08:14 – 00:08:32:21
And when I say ‘recent’, I’m going back to 2012. In the Supreme Court of Canada, it was proven beyond a reasonable doubt that there were promises made to Louis Riel and the leaders of the resistance to, for them to lay down their arms and cooperate with the British North American government.

00:08:32:21 – 00:09:08:09
And a part of that promise was what is modernly known today as Winnipeg. All of the land – and the Métis understood that Winnipeg is the confluence of two major waterways: the Assiniboine River and the Red River. And it’s really difficult to wrap our heads around this in modern times because we’ve become so dependent upon railways, highways, and airport traffic.

00:09:08:09 – 00:09:25:08
But if we put ourselves back into those times, the economic lifeline and the transportation corridors of North America were riverways, and everybody got around by canoe.

00:09:25:10 – 00:09:57:08
And so the confluence of, I mean, not solely by canoe, there was, there was overland transportation, modalities or whatever. But the confluence of these two rivers, the Red River and the Assiniboine River in what is today known as Winnipeg, Manitoba, was a strategic landholding that the Métis negotiated for in their surrender, to quell the resistance.

00:09:58:15 – 00:10:05:22
And of course, the Redcoats were in, hypertension state…

00:10:05:22 – 00:10:16:05
…so the British North Americans were readying themselves against an expanse of the newly formed United States of America.

00:10:16:05 – 00:10:36:00
In those times, the British North American government, now that they had a railway, they could move troops quite readily throughout the Northwest Territories.

00:10:36:00 – 00:10:52:03
After the quelling of the resistance, the British North American government was able to mobilize troops, domestic – it was the first military style domestic police force in the history of the world…

00:10:52:05 – 00:11:42:06
In the modern world. It was called the North-West Mounted Police, which would eventually become known as the Royal Canadian Mounted Police, the RCMP. And this is why there’s been so much violence by police forces against Indigenous Peoples, because that’s what they were created to do.

They were created to continuously suppress the resistance because after Louis Riel and others made a peace treaty for Winnipeg and other benefits, and assureties, by the way, he wanted Manitoba to be an independent territory: the territory of Assiniboia, independent of the Northwest Territories.

00:11:42:08 – 00:11:50:10
And in exchange for that, they laid down their weapons. But they were very swiftly betrayed.

00:11:50:10 – 00:12:27:12
And so that betrayal was well known. And the resistance continued. And so as a result of that continued resistance, the federal government of Canada under the Indian Act created a stipulation in the Indian Act of 1885, this new version of the Indian Act, that it was there forward illegal for three or more Indigenous men to gather collectively in a public space…

00:12:27:12 – 00:12:37:18
… so in a municipality or wherever, wherever they might be found, outside of the reserve boundaries, outside of the Indian reserve boundaries…

00:12:37:20 – 00:12:51:02
…it was illegal from 1885 to 1951 for three or more Indigenous men to be gathered in a public space…

00:12:51:02 – 00:13:27:15
… and the reason was that in those times, three Indigenous warriors were considered to be a militia by the domestic police forces, which were not very knowledgeable of the Land. And so three – the loose math is that for every one Indigenous warrior was equal on the battlefield of ten soldiers, American or British North American soldiers.

00:13:27:17 – 00:13:48:16
And so you can imagine three knowledgeable, Indigenous warriors was essentially a troop of 30 Royal Canadian Mounted Police, in terms of battlefield, sort of supremacy and…

00:13:48:16 – 00:14:07:17
And so that continued to 1951. And so anywhere three or more Indigenous men were observed, the police could lay charges and detain them, and incarcerate them under rule of law, under the Indian Act.

00:14:08:02 – 00:15:14:09
And so in 1951, all of that changed. And, the result, the reason why that changed was because of the Universal Declaration of Human Rights in 1948, which gave way to subsequent international agreements, including the Geneva Convention on the Status of Political Refugees in 1951.

And the Canadian government, as you may know, Canada played a lead role in the war – World War II – and so American diplomats, and politicians, and political philosophers played a major hand in the early development of international law. Which, of course, was spearheaded by the Universal Declaration of Human Rights in 1948, like I mentioned, and then the subsequent international agreements and international law there forward.

00:15:14:09 – 00:15:46:14
And so after 1951, these guys came home to Canada and they said, well, we have this new international law that Canada is subject to, by the way, and this is a really important point, and this is why I go to R2P (Responsibility to Protect), and this is why I go to how IPCAs are a corrective measure in helping Canada to adhere to its own constitution, and then to international law, including human security, the responsibility to protect and promote human security.

00:15:46:14 – 00:16:29:12
So when these guys came back from Geneva in the summer of 1951, they realized that they had domestic law that was incongruous with the newly forming international law. It was actually violating international law. And so what they did was they overhauled the Indian Act in 1951, and after October of 1951, again it was legal for the Sundance, the Potlatch, the feast of the dead, sacred, political, spiritual ceremonies of Indigenous Peoples.

00:16:29:14 – 00:16:45:13
It was also there forward legal for a First Nation to pursue a land claim, and it was also legal for three or more Indigenous men to gather in a political space. Sorry, in a public space.

00:16:48:15 – 00:17:06:22
Now, how we’re getting to Terra Nullius here, in the way, the way Terra Nullius has been, has influenced geopolitics in Canada is kind of, a bit of a smoke and mirrors scenario. And this is what I’m getting at here.

00:17:06:22 – 00:17:35:12
So after 1951, even though the prohibition on three Indigenous men gathering in a public place – that was no longer, de jure, it was no longer in law, but de facto, this practice by the Royal Canadian Mounted Police continued into the 1990s and the early 2000s.

00:17:35:14 – 00:18:07:02
And arguably, it’s still continuing on in various pockets of the prairie provinces today, where even though there’s not a law that prohibits three or more Indigenous men to gather in a public space, the practice is that the police will still come. They’ll pull you over. And their standard questioning is, “What’s your name? I want to see identification”.

00:18:07:04 – 00:18:37:24
“Where are you coming from? Where are you going to?” They immediately put your name through a computer system to see if there’s any outstanding warrants or whatnot, and then they will ask to search your possessions on your person. So, like, whatever’s in your bag or whatnot, like. And so, even regardless of police warrants, this was the practice, up until the 90s and early 2000s.

00:18:37:24 – 00:18:38:20
And so…

00:18:38:20 – 00:18:55:04
… so even though there was no longer a de jure kind of, regime in law that allowed RCMP to do this, in de facto in practice, they still did do, they did that…

00:18:55:04 – 00:19:07:08
…and so when you look at Terra Nullius and the claim that this is no one’s land, in de jure, that actually was never true in Canada.

00:19:07:21 – 00:19:36:11
It was never true. And that goes back to the Royal Proclamation of 1763. We spent time looking at that in one of our previous čukʷaa haʔuk series. The Royal Proclamation of 1763 was King George the Third’s extension of chivalry after the defeat of the French in the Seven Years’ War – it’s going back to the 1750s now.

00:19:36:11 – 00:20:10:15
The immediate outcome of the Royal Proclamation of 1763 was the Treaty of Fort Niagara 1764. And essentially what King George said in his proclamation is that all of your land – I recognize your jurisdiction, and nothing will happen on your land until there’s a proper Treaty in place. As per the tradition of your people.

00:20:11:02 – 00:20:40:24
And so this necessitated the Treaty process. So even if you look at the modern, the so-called modern Treaty process in British Columbia, when in 2000, 2001, when Gordon Campbell was justifying to the provincial citizenship of British Columbia, why are we still negotiating treaties with First Nations? That was supposed to be done, you know, a hundred plus years ago.

00:20:41:01 – 00:21:11:02
Why are we still talking about this? Well, Gordon Campbell was actually forced into that conversation by the Supreme Court of Canada, which cited King George’s Royal Proclamation of 1763 and the necessity of honouring the Crown, upholding the honour of the Crown, to maintain legitimate sovereign authority on the lands that we know today as Canada.

00:21:11:02 – 00:21:14:08
Terra Nullius was never an act of consideration.

00:21:14:11 – 00:21:30:00
It was always predicted that there would be a requirement to negotiate treaties, and in that very requirement to negotiate treaties was an inherent acknowledgment of sovereign jurisdiction.

00:21:30:00 – 00:21:42:02
And that’s why, for those of you who are in attendance at the gatherings with the T’Sou-ke Nation, that’s why I always play up the Douglas Treaty. The Douglas Treaty…

00:21:42:04 – 00:22:15:24
…you know, a lot of people believe that it’s not worth the paper that it’s written on, you know, but there’s, I will give you two examples. One is the Tŝilhqot’in Supreme Court decision of June 26th, 2014. The Supreme Court of Canada granted or acknowledged Aboriginal Title to land in the Tŝilhqot’in after 25 years of litigation.

00:22:16:12 – 00:22:59:01
And then contrast that with the Douglas Treaties on southern Vancouver Island, including the T’Sou-ke Nation. And the advantage that the T’Sou-ke Nation has is that even though that Douglas Treaty might not be worth the paper that it’s written on, it is an acknowledgment that is undeniable by anyone.

It’s undeniable by the feds, the provinces, the local government that when Europeans first arrived, they acknowledged the T’Sou-ke Nation as a Nation, that they entered into a Treaty with.

00:22:59:01 – 00:23:10:11
That acknowledgment in and of itself is what the Tsilhqot’ins fought for in a dehumanizing process over 25 years.

00:23:10:13 – 00:23:34:12
To prove so-called strength of claim. They made a claim to the area in the Tsilhqot’in and around Fish Lake, in the Nemiah Valley and Xeni Gwet’in. They laid claim to that, and then they went to court for 25 years to prove their strength of claim…

00:23:34:12 – 00:23:44:09
… you know, and if they had a piece of paper, a Treaty, that strength of claim would have been undeniable for anyone.

00:23:44:11 – 00:23:53:09
Now, that’s not to deny the dark history of Treaty violations.

00:23:53:09 – 00:24:19:09
These Treaties, at the very least, are undeniable evidence of the de jure inapplicability of Terra Nullius in those in British North America, the Dominion of Canada. What we know today is the nation-state of Canada.

00:24:19:09 – 00:24:24:17
Now, I stress the point de jure.

00:24:24:19 – 00:24:33:01
Remember, there’s a difference between de jure and de facto, right? De jure is ‘in law’ de facto is ‘in action’.

00:24:33:01 – 00:25:05:08
And then when you take that and lay that over the Terra Nullius argument – and that was brought up, by the way, in the deliberations of the Supreme Court of Canada in the Tsilhqot’in court case, that Terra Nullius was never in law an act of principle, but it was in practice, because King George’s Royal Proclamation of 1763 was not honoured.

00:25:05:10 – 00:25:43:15
That’s a really important point here. And therefore, one could argue, in a referral case to the Supreme Court of Canada or a collective class action lawsuit by First Nations in B.C., that every single land transaction, even the survey of land that has happened in the province of British Columbia, was unconstitutional at its very core, because it did not honour King George the Third’s Royal Proclamation of 1763.

00:25:43:15 – 00:26:19:05
The main point I was trying to get to there was that there’s some laws that are enforced and there’s other laws that are not enforced. And interestingly, the Constitution and King George’s Royal Proclamation of 1763, the Treaty of Fort Niagara in 1764, and the subsequent Treaties are not being enforced.

And I would actually, I’ve fantasized about approaching the higher commanding officers of the Royal Canadian Mounted Police and challenging them to say, well, “Why don’t you guys enforce these laws?”

00:26:19:05 – 00:27:03:15
“You’re enforcing these laws. Here’s a spectrum of laws that there are in Canada to enforce. And why do you choose to only enforce these laws?” “What if we as First Nations paid you to enforce treaties?” As an example. Or Section 35 of the Canada Act of 1982? This is the beautiful rabbit hole that we go down in this, you know, some type of thinking of Terra Nullius, and how it’s been applied and misapplied, inappropriately applied, in a Canadian context.

00:27:03:17 – 00:27:05:02
So

00:27:05:02 – 00:27:28:11
Terry Dorward (Tla-o-quit-aht Citizen, President of the Board and West Coast IPCA Conservation Director, IISAAK OLAM Foundation)

You know, the idea that, you know, nature is a wilderness. You know, that there’s anarchy. There’s, you know, there’s no law there. And, you know, as we know, as Indigenous People, even the animal kingdom has order to it.

00:27:28:13 – 00:27:40:16
So just because it’s not, you know, familiar to European concepts doesn’t mean it doesn’t exist.

00:27:41:05 – 00:28:11:07
Eli Enns
Yeah. That would be a perfect segue into the conversation about the totem pole. Because in the conversation about the totem pole we talk exactly about what you’re saying Terry, is how Indigenous Nations have deciphered natural law by observing the animal kingdom, as you say. And then we have sought to mimic that in our own social institutions and practices.

00:28:11:09 – 00:28:18:11
And one of the forms that has taken in a Canadian context is the totem poles.

00:28:18:11 – 00:28:46:23
Terry Dorward
Concepts like Terra Nullius, you know, led to a lot of the laws, that are here today that Canada still benefits from the Doctrine of Discovery and, you know, and sorry if you if you mentioned that already, but it does have a huge impact on, you know, how laws are set in this country and how Indigenous People are viewed.

00:28:46:23 – 00:29:15:06
So, I think there’s a great challenge there when it comes to, you know, court challenge when, you know, if courts would, would allow it, you know, to have a challenge, you know, like Terra Nullius and the Doctrine of Discovery because it would totally rewrite and, you know, hopefully bring in new concepts like Ethical Space.

00:29:15:06 – 00:29:30:01
Eli Enns
And interestingly, all of those laws, like the Mining Act, the B.C. Forestry Act – all those laws are actually unconstitutional because they do not adhere to Section 35.

00:29:30:03 – 00:29:34:01
That’s the whole point. You know.

00:29:34:01 – 00:29:40:13
Ideally, like, I mean, and you can try to correct that through the courts, but good luck.

00:29:40:15 – 00:29:57:07
Even when we win in court, and we have been winning in court for 30 years, various levels of government are actually denying those court decisions. They’re not even following their own judiciary. They’re not following their own constitution.

00:29:57:07 – 00:30:06:22
You know, you know, we’re…it’s a live conversation in the United States today because Donald Trump is denying court orders.

00:30:06:22 – 00:30:30:24
He’s, you know, he’s violating all kinds of state law. But here in Canada, it’s sort of whispered about, and it comes out in Idle No More. Now, Idle No More 2.0, but people end up just calling that…. they look at that, “Oh, what did the natives want now? Oh, they already get everything for free.”

00:30:30:24 – 00:31:16:03
“What do the natives want now?” You know, rather than taking a good, hard look at the sort of legislative discontinuity, maybe that was the word I was looking for, Monica. The discontinuity between natural law, Indigenous law, Treaty, constitutional, federal law.

There’s a diagram probably on Monica’s desk there somewhere. I know I might have one of that diagram of how law is layered upon the Earth, and, the original squiggly line, which, hopefully people are somewhat familiar with that.

00:31:16:05 – 00:31:19:09
It can help, like, with all this stuff I’ve been talking about today.

00:31:19:09 – 00:31:45:24
The whole idea here is that if we come back into continuity with Mother Nature’s law, then we increase the probability – well, number one, we decrease the damage, we minimize damage, and we increase the probability of success and abundance for future generations.

00:31:45:24 – 00:31:46:22
Singing (Tla-o-qui-aht Master Carver and Historian Joseph Tutakwisnapšiƛ Martin, Board Director, IISAAK OLAM Foundation)

Woo woo woo ho ya.

00:31:47:04 – 00:31:57:08
(Eli Enns, Tla-o-qui-aht Nation Citizen, Co-Founder and CEO, IISAAK OLAM Foundation)

čukʷaa haʔuk!