Consider for example the experience of the Six Nations of the Grand River. By the Haldimand Proclamation, land purchased by the Crown from the Mississauga first nation was granted to the Six Nations “for them and their posterity to enjoy forever”. The Tract was 960,000 acres in 1784 – six miles deep on both sides of the Grand River from its head waters to Lake Erie. By 2001 they had been swindled down to 46,500 acres or 4.9% of the original land grant along with the consequent loss of potential income.  

The Canadian government’s Indian Act has been the “legal” means by which the colonizing government ensured that Canada’s indigenous peoples were maintained in a state of subservience, dependent on the federal government for good and bad. The loss of traditional lands was effected as “Indians” were enclosed and controlled on reserves.   Across Canada, lands once occupied by Indigenous peoples has been reduced to a tiny fraction - some guestimate 0.2% - of their traditional territories.   

Current statutes, legal interpretations, and international declarations like UNDRIP require the provincial and federal Crown to adopt a much more respectful approach to the land claims and rights of Indigenous people.  

Nevertheless, the federal government’s approach - past and present - to the legitimate land claims and treaty rights has revealed no generosity of spirit nor a will to ensure that Indigenous peoples are treated justly in court or by government policies. The Crown’s aim continues largely to be:  wear Indigenous claimants down, delay, cause high legal costs, and finally get the inconvenient claimants to agree to extinguishing their land and treaty rights. In return for a mess of pottage and government payment of legal costs, the Indigenous peoples are deprived of their birthright.  

Though few political leaders would confess that this is the aim, it remains the actual approach the Crown has taken to legal struggles over land and water claims. The fact that Indigenous legal  rights and claims have consistently been affirmed by courts, including the Supreme Court of Canada, has not changed the governments’ unstated approach.  Assimilation remains the implicit net bottom-line goal.

Exactly right, says Peter Best, a Sudbury, Ontario lawyer, who has authored an overwhelming tome of  700-plus pages to argue that the Crown’s implicit way is the right way. In his opinion the interpretations of the Supreme Court and other officials are a threat that can only lead to the diminution of Crown sovereignty. “There Is No Difference – An Argument for the abolition of the Indian Reserve System and Special Race-based Laws and Entitlements for Canada’s Indians” was published in 2018 by Best through the vanity press Tellwell Talent of Victoria, BC.

   

The essence of Best’s ardently argued case is that Canada should just repeal the Indian Act, disregard statutes , treaties, and proclamations of previous eras, dissolve reserves and forget about land and water claims and entitlements, and forget about Indigenous identity, culture, language, and spirituality.  Such a radical approach would avoid an “apartheid-like, separate-but-equal” injustice system, he claims. Instead, it would open the door to Indigenous people becoming part of the settler population with “full equality of rights and responsibilities.”

Aside from the glaring failure to observe “the rule of law” in this matter, Best has little patience for any residual moral or legal obligations to Indigenous people for the theft of their lands and the oppression they have experienced at the hands of colonial settlers and governments over the centuries.  Indigenous people should simply accept the reality of settler culture superiority and blend into the general Canadian culture.   Just how that culture might be defined is unclear - given Canada's multi-cultural reality and policies.  Nevertheless, two-row wampum be damned.

Best dismisses Indigenous culture in its various expressions, the loss of indigenous languages is not lamented, Indigenous spirituality is deemed vague and unsubstantial. Losing this element of diversity would be no great loss, Best claims,  because it only impedes their social and economic development. Diversity is nothing to be cherished. Instead, settler culture’s presumed “progress” is the dominant value to be pursued.

  

Says Best: “We need to restore to its former primacy our humanist legal, social and political model as the only one to be governed and guided by in the task of carrying out our duty to improve the situation of Canadian Indians. Only by doing so will they, as one of the founding peoples of Canada, be put on the shared path of meaningful progress toward true equality and social justice.” (p. 15) “Completing the process of legal integration and social assimilation with non-Indian Canadians is the only serious, beneficial and realistic way forward.” (p. 29)

The “us” and “them” style of Best’s discourse reveals the paternalism which too often has infected the settler mind. There is no room in his proposal for mutuality – the need for settler and indigenous to engage each other and to seek change in settler systems and selves so that indigenous peoples could really know themselves and be recognized as founding peoples. “We need to restore...” and carry out “our duty to improve the situation of Canadian Indians,” says Best speaking presumptuously for the settler community and paternalistically about the Indigenous peoples , with no sense that Indigenous peoples can speak and act for themselves.   

The report of the Truth and Reconciliation Commission is one of many powerful expressions of Indigenous concerns and hopes. In relation to land issues, “Call to Action #47” demands repentance and transformation: “we call upon federal, provincial, territorial, and municipal governments to repudiate concepts used to justify European sovereignty over Indigenous peoples and land, such as the Doctrine of Discovery and terra nullius, and to reform those laws, government policies, and litigation strategies that continue to rely on such concepts.”

The reality is Indigenous people are clearly seeking to affirm their identity, their rights and claims to their territories, their ways of being, and their right to determine their own future. To assume this could simply be achieved by enforcing assimilation has long been tried and has failed spectacularly.  

The ritual recognition of Indigenous lands by which so many meetings and events are started in our time is not doing the job. These brief preludes to the real business of public gatherings remain hollow as long as there is no significant movement toward overall justice for Canada’s Indigenous peoples and specifically the crucial land claims issue. 

  

The UN Declaration on the Rights of Indigenous Peoples, recently approved by the Parliament of Canada, is clear about the need for the Crown to respect the land claims of Canada’s Indigenous peoples. Articles 26 to 29 are a direct challenge to the concept of Crown lands and other treaty lands which have been stolen from Indigenous ownership and control.   

One of the great challenges in the overall struggle for justice is that Indigenous peoples have relatively few  independent revenue sources. The result, if not the intention, of the government, is that the Indigenous peoples are dependent almost entirely on government-controlled funding sources. The one who pays the piper calls the tune. This dependency pattern has undermined Indigenous agency and has delivered most Indigenous peoples into poverty.   The Restitution Fund could contribute to the opposite.. 

The dependency pattern must eventually come to a negotiated end. In the meantime, Indigenous peoples must have a reliable and adequate source of funds that allows them to address priorities that go well beyond what the Crown is and has been funding. The Restitution Fund would go a long way to providing a significant pool of money permitting Indigenous peoples to pursue legal and social issues and goals which they determine to be priorities over and above current government funding. 

Hence, the Fund would be administered by an authority of, by, and for Indigenous peoples. It would be replenished on an ongoing basis by the amount collected through the levy on real estate sales. The Fund would not replace current government funding programs.  These would continue until a more just and permanent comprehensive relationship arrangement is negotiated or litigated and agreed upon between the provincial and federal Crowns and Indigenous peoples.

No doubt there would be some who with  Peter Best would express their total opposition to this proposal and the ongoing process of gaining justice for Indigenous peoples.

But there is also a growing number of Canadians of goodwill seeking to add substance to the hollow ritual recognition of the traditional territories of (northern)Turtle Island’s Indigenous peoples. Their aim is reconciliation.   They hope the Indigenous - settler relationship which has been skewed and destructive since Europeans came to Turtle Island willsome day be healed. A Restitution Fund rooted in acknowledging the need to resolve the land issue would be a giant step in this direction.  

It is common knowledge as Martin Luther King Jr. proclaimed poetically that “the arc of the moral universe is long, but it bends toward justice.” With mutual respect, with the intention of seeking  new ways of relating, and with a commitment to reconciliation, I believe that arc's length might be shortened and peace may be born of justice.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ 

As a settler (and first-generation immigrant to Canada), I propose this path and Fund cautiously. I have consulted with some Indigenous friends and understand that they and other Indigenous folks may welcome others’ ideas.  But in the end, they need to make up their own mind about the ways toward reconciliation.

I also understand that there is concern that a proposal like the Restitution Fund may create a settler backlash and further complicate the relationship.  Perhaps.  But doing more of what has already be tried doesn't augur well for justice either.

I would welcome any feedback and any opportunity to engage in conversation about the ideas in this series of blogs. And if there are groups of people, especially Indigenous people, who wish to run with some or all of these ideas, I would gladly stand behind them and support them as may be appropriate  and helpful. My aim is justice and peace rooted in mutual respect and authentic reconciliation - for me rooted in deeply held faith convictions.

On the residential market alone about $3 billion would be raised. Add to this, the real estate transactions for industrial, commercial, and institutional properties. Determining the current  total dollar amount of these non-residential transactions has been a challenge I have not yet been able to overcome.   A partially informed guestimation suggest a total revenue of at least $5 billion per year..