Canada 360 | Long live the unceded territories?

(Moncton, New Brunswick) The news went unnoticed: last January, we learned on Radio-Canada that communities of the Wolastoquey (Maliseet) First Nation had initiated a lawsuit against the Government of New Brunswick for obtain a title on about half of the territory of the province.

On October 15, the government sent a note to all employees of the provincial public service prohibiting them from asserting during declarations of territorial recognition that New Brunswick was “unceded” territory. Feigning a feeling of panic, the government claims as justification that it is currently more than 60% of the territory that is claimed by the various aboriginal communities of the province.

Supporters of reconciliation have been furious ever since. Above all, they criticize the government for its unfriendly attitude and its contempt for the facts: in the whole of the Maritimes and therefore in all of New Brunswick, the Native communities have never signed a treaty formally ceding the territory. They also blame him for his authoritarianism of another age and his attack on the intellectual freedom of members of the public service. They are of course right. But by limiting themselves to these superficial critiques, they fall into what Taiaiake Alfred, a political scientist from Kahnawà: ke, points out as being the trap of recolonizing reconciliation.

Legally, unceded territory does not necessarily have to be surrendered. The land on which the town of St. John’s, Newfoundland is located, for example, is unceded Beothuk ancestral territory; however, the Beothuk did not survive the arrival of the Europeans, the territory will never be ceded to them. In New Brunswick, it is far from certain that the Native communities will succeed in convincing the judges that they do indeed have a right to a title over such a large part of the territory. What if they succeed? The province would remain easily recognizable: the members of the Wolastoquey First Nation know the limits of the Canadian regime and are essentially asking for recognition of a right to be consulted in the context of the exploitation of natural resources. They are not asking for any veto power, much less the right to expropriate anyone. In Canadian law, the scope of aboriginal title is ultimately quite limited.

Consulting the Aboriginals more, thanking them for their hospitality before the hockey games, or appointing a representative of the Queen undoubtedly participates in a generous intention, but these gestures do nothing to decolonize the country; the reconciliation they aim for is a reconciliation that takes for granted the legitimacy of existing colonial structures.

Legally, the territory of present-day Canada did not belong to anyone before the arrival of the Europeans. Today, it is approximately 90% owned by the Crown. The story of this takeover is complex, but one reality remains very simple: the land was seized by the European powers. This original acquisition is the heart of the Canadian colonial problem. Indigenous communities could not cede territory that did not belong to them. More prosaically, all the legally ceded territories (for example through the numbered treaties in the Prairies and western Ontario, or the James Bay and Northern Quebec agreement) were ceded in a legal context where unceded territory located on Crown land is Crown property. Let’s not be fooled by the rhetoric of Canadian legal jargon, the country has been despoiled.

Before the arrival of Europeans, members of the Wolastoquey, Mi’kmaq and Passamaquoddy nations were at home in what is now New Brunswick, still over 80% forest today. Without having ceded anything, they are today on reserves whose soil belongs to the Crown, claiming a vague right to speak out about the exploitation of forest resources located on Crown lands or on former lands of the Crown. Crown now owned by private operators.

Clearly, seen from New Brunswick, the unceded territories appear less as opportunities for reconciliation than a colonialist concept aimed at legitimizing a conquest. The starting point of a decolonization process is not the ritualized incantation of a declaration of territorial recognition, but the questioning of the original acquisition of the territory by the Crown.

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