A fundamental gap remains between how many Canadians see this country and the realities of living under a colonial settler state. Public commitments made by our governments to truth and reconciliation often do not match their actions behind closed doors.
From courtrooms to truth commissions, this episode is about the ways the Canadian settler state continues to suppress the legal systems, governance structures, and lived experiences of Indigenous peoples - and the difficulties seeking justice and truth within colonial legal systems. But we’re also looking at the profoundly important work of those fighting to make the truths of Indigenous people known.
In this episode Ry Moran speaks with David Paterson about the barriers in getting truths recognized in the Canadian courts, and with Marion Buller about the difficult work of truth-telling in this country through the Missing and Murdered Indigenous Women and Girls Inquiry.
David Paterson: https://www.whiteravenlaw.ca/david-paterson
Marion Buller: https://www.uvic.ca/socialsciences/careers/departments/anthropology/profiles/buller-marion.php
Truth and Reconciliation Commission of Canada Reports: https://nctr.ca/records/reports/
National Inquiry for Missing and Murdered Indigenous Women and Girls Reports: https://www.mmiwg-ffada.ca/
Delgamuukw Supreme Court Judgement: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1569/index.do
Episode Transcript
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[This episode contains discussions of Canada’s Residential School system and Missing and Murdered Indigenous Women and Girls. Please take care while listening. Resources for support are available on our website, should you need them.]
Ry Moran
In 1987, the Gitxsan and Wet'suwet'en First Nations took the province of British Columbia to court to assert their sovereignty and inherent rights and to their traditional lands.
This historic case – now known as Delgamuukw v. British Columbia - ignited after the BC government allowed clear cut logging on Gitxsan and Wet'suwet'en lands without any consultation.
David Paterson
It was - it was sort of an indicator of - of where things were at, at that point, there was simply the province denied that there ever were any Aboriginal rights or titles.
Ry Moran
David Paterson was on the legal team representing the Gitxsan and the Wet'suwet'en. One of the first major hurdles they faced in court was getting the Canadian legal system to recognize Indigenous oral history as evidence – something that had never been done before.
David Paterson
There was an attempt to actually demonstrate to the court the validity of oral history through scientific evidence.
Ry Moran
They recounted a house story from the house of Ma Deek, a Gitxsan oral history – or adaawk. It describes a community living at the banks of a small lake being disrespectful of the fish and creating waste through overharvesting.
David Paterson
And in response to this misbehavior, a giant grizzly came tearing down the mountain slope towards the lake, ripping up trees and causing all level of mayhem and crashed into the lake and the lake, then over onto the village, wiping it out.
Ry Moran
Next the team brought in some experts.
David Paterson
One was ethnobotanist, who did testing at the bottom of Seeley Lake and one was a geological expert who also did testing and both of them independently came up with results that there had been a landslide into this lake, some 4,300 years ago, I think they came in within 50 years of each other in terms of their description of what happened. And we also had a witness who had been an eyewitness to a major landslide and described what it sounded like and what it looked like. And that very much corresponded to what the adaawk described.
Ry Moran
The team explained to the judge that the story was a description of an event that had been passed down over centuries.
David Paterson
The judge had some trouble understanding what to make of it. And the lawyer who was who was speaking at the time, said, ‘well, if you were watching it, you might call it a landslide and if it was an insurance agent, you might have called it an act of God, and - and the Gitksan referred to it as a giant grizzly bear. But the fundamental fact is unmistakable that what they saw happened, regardless of whether they described it the way you would have described it, was provable and demonstrable.'
Ry Moran
But that same BC Court judge refused to recognize these oral histories as a legitimate form of evidence.
David Paterson
And so, what the judge said is, ‘all of this oral history is just stuff people have been told. They have no knowledge, direct personal knowledge of any of these things. And furthermore, it's polluted, because all of the evidence is coming from people who have a vested interest in the outcome.’ That caused the judge a great deal of problems. And as a result, he threw out almost all of the evidence of the Gitksan and Wet’suwet’en.
Ry Moran
Because the Canadian legal system struggles to recognize Indigenous Truths – at times representing outright hostility to these truths. It is interested in detail, in maintaining ways of knowing and being that made sense within colonial court systems – core tenets that rest on rejections of Indigenous ways of knowing and being.
David Paterson
So, what the court was grappling with is not directly the question is what is truth but what can be identified as truth in a legal proceeding.
Ry Moran
The Supreme Court eventually recognized oral history as a legitimate form of legal evidence.
But this case still represents the hostility towards Indigenous knowledges and histories with the colonial legal system.
David Paterson
Up until that decision, there was an enormous handicap for Indigenous peoples attempting to bring materials before the court, simply because the European court system was not suited to the reception of the kind of evidence which was valid among Indigenous peoples.
Ry Moran
There is a fundamental gap between how many Canadians see this country and the realities of living under a colonial settler state. The commitments made in public by our governments to truth and reconciliation often do not match their actions behind closed doors. Arguments made in courts across this country often reveal a far more overtly aggressive state – one highly intolerant to Indigenous rights and title – and a country deeply rooted in colonial practices and ways of knowing and being.
From courtrooms to truth commissions, this episode is about the ways the Canadian settler state continues to suppress the legal systems, governance structures, and lived experiences of Indigenous peoples - and the difficulties seeking justice and truth within colonial legal systems.
We’ll also look at the profoundly important work of those fighting to make the truths of Indigenous people known, and the personal toll this work often takes.
We’re talking with David Paterson about the barriers of getting truths recognized in the Canadian courts –
David Paterson
And there's a difference between detail and truth. And what you heard at the TRC, and you recognize it when you see it, is truth. But the court doesn't function that way.
Ry Moran
And with Marion Buller about the difficult work of truth-telling in this country through the Missing and Murdered Indigenous Women and Girls Inquiry –
Marion Buller
Fear of the truth, fear of the truth coming out of people knowing, of the public knowing what actually happened. Because if people don't know, they can't hold you to account.
Ry Moran
My name is Ry Moran and this is Taapwaywin: talking about what we know and what we believe, a podcast from the territories of the Lekwungen peoples and the Libraries and Archives of the University of Victoria.
[theme music]
Ry Moran
I got to know David Paterson through my work with the Truth and Reconciliation Commission. David is one of the lawyers that fought hard as an advocate for Survivors in the early stages of residential school litigation.
David Paterson
I'm David Patterson. I'm a lawyer practicing in Vancouver. I've been practicing in the field of then, Aboriginal, now Indigenous people's rights, since about 1985. And I'm currently the chair of the Committee on Indigenous peoples for the International Bar Association.
Ry Moran
Having worked in the field of Indigenous rights for several decades, David has been a part of many landmark moments in Indigenous law – from the Haida Nation’s defense of Athlii Gwaii Lyell Island to the negotiation of the Indian Residential School Settlement Agreement.
Beginning in the mid 90s David became involved in the early stages in what would become another major Indigenous legal battle.
David Paterson
And I got involved with residential school cases in the fall of 1994. And it was Gitksan who originally were the original plaintiffs in the Blackwater case, including Willie Blackwater himself. Later on, that case picked up more people and eventually, by the time it went to trial, I think there were about 30 people involved.
Ry Moran
There is a long history of resistance by Survivors, their families, and even entire communities to the abusive residential school system.
And starting in the 1990s, Survivors began turning to the courts as a way of pursuing justice for the abuse they experienced, filing increasing numbers of civil and criminal suits against former residential school staff, the churches, and the federal government.
When David joined the legal team representing a number of Survivors in what would become the Blackwater case, the hope was that they might be able to reach a settlement between all the parties as a way of avoiding a prolonged trial.
David Paterson
And the decision was to start with - with the Alberni school, in part because there were a number of cases there and Arthur Plint had already been criminally convicted. In fact, he pleaded guilty, there was not - wasn't even a trial over the issue.
Ry Moran
They also decided to begin with the Alberni Residential School because it had been run by the United Church.
David Paterson
We thought the United Church of all of the various churches involved in residential schools would be the one most amenable to reaching some sort of a settlement. I think we had a hope that - that we might avoid the necessity of trial that we might be able to negotiate some sort of agreement. As it turned out, United Church shortly thereafter retained insurance counsel whose job is to fight claims, not settle them. And the case was on.
Ry Moran
The first major task of the Blackwater team was establishing joint liability of both the church and government for the abuses suffered by former students.
And at every turn, the government and church both tried to argue their way out of responsibility.
David Paterson
And so we got into a great big argument actually lasted about three weeks, where the government said, ‘well, the church ran the schools, and all we did was pay tuition.’ The church turned around and says, ‘well, actually, they were government schools, we just - we just provided teachers and staff there.’
Ry Moran
The United Church even tried to argue that it should not be held responsible because they were a charitable organization, and that being held liable for the crimes of their employees would potentially discourage participation in future charitable activities.
David Paterson
We argued that it was a joint enterprise that both of them had a stake in the process, both of them were committed to it from the beginning, they collaborated in it at every level and so on. And ultimately, that argument succeeded.
Ry Moran
A large part of this podcast, we're talking about, not only the power of truth telling, but of course, the forces that operate against those truths coming out. And I've heard it firsthand from Survivors that were even involved in that case that that process of cross examination over and over again, was brutal. Can you paint as a bit of a picture in terms of, you know, setting kind of the environment in which these truths were emerging in and some of the tactics that were being used by the church and Canada at that time?
David Paterson
Well, I - I hesitate to use ‘tactics’ because lawyers were doing what lawyers always do, they go to win cases and they ask questions and they try to get clear and consistent answers. But it's a bit of the same kind of story in a very different way that you had in Delgamuukw. And that is you have people who have no written records of what happened to them. So there - there was very little contemporary evidence, and you have people recalling traumatic experiences that happened decades earlier –
Ry Moran
As children too, right? As young children.
David Paterson
In fact, I had cases going back to the 30s, you know, you had you had the kind of - of evidence that you would expect of somebody trying to recall these sorts of details. But it was impossible. You know, now, 'when you went to the residential school, how did you get there? I got taken on a boat, and where did you sit on the boat? Well, I sat here. And what were you wearing? Which way were you facing? Who was sitting next to you? Who was sitting behind you? Where was the brother sitting? Now was - were you able to see him? When, where' – like, massive amounts of details. The question would go on for days, questioning of traumatic events.
I saw things like, for example, fellow was asked a question about his abuse and was obviously being traumatized and didn't say anything was just sitting there. I don't know, he may have been gathering his thoughts. He may have been wishing he was the hell out of there, who knows. But the lawyer for Canada says, 'let the record show that it's now been two minutes since I asked that question,' you know, sort of leaving the inference because of course, time won't show up on the transcript, but leaving the inference that he's taking his time to make up something.
Ry Moran
Government and church counsel demanded a level precision and detail from Survivors that was impossible to provide.
I have to admit that even for me, hearing these stories now makes me beyond infuriated.
David Paterson
I saw cases where people would tell stories of more than one occasion of abuse but would get the facts muddled between them. In a standard court proceeding, that's the end of the case. And very often you would get, asked for evidence about, you know, somebody would come into the dorm and molest them. And so, there'd be a great deal of description, and then the lawyer would sum up and say, 'that was the first occasion, right?' And they would say that, and then 'what was the next occasion? And how many days later or weeks later or months later was that? And what day of the week was it? What time of day was it' and so on and so - and then carry on the second one and then try and go to a third one. Well, there may have been 30 or 40 assaults. And at the end of the day, what you would see people is just bail out of the thing because they couldn't deal with this. And in their head, they had no way of separating that many incidents. Anyways, it was all just one great big trauma that was indistinguishable. And what was clear was that somebody had suffered multiple sexual assaults at the hand of an adult predator.
And so, this whole process became enormously traumatizing for individuals, because they would walk away from it, feeling like somebody was accusing them of being a liar. You know that they weren't believed. And it was, it was very, very difficult and required a great deal of courage to essentially put their way through that.
Ry Moran
But the denial of someone’s truth is also a form of violence.
David Paterson
It was a very difficult case. It was very hard on the plaintiffs, it was aggressively fought, and they were aggressively cross examined. There were two suicides in the course of that case, one before the trial began, and one during the trial, so it was a very tough haul for people. And - and it can't be said enough the weight that those people took on the shoulders because they eventually set pattern for better or worse, which became the foundation for the ultimate settlements that occurred later on.
Ry Moran
As a mechanism that supported and justified domination for so long, the Canadian legal system was simply not equipped to handle with care the nuances of residential school Survivor’s claims.
European laws and practices that had been weaponized to suppress Indigenous rights were used again within the courts to diminish, challenge, and poke holes in the lived experiences of residential school Survivors. The Truths of Survivors were questioned simply as a matter of course.
David Paterson
And there's a difference between detail and truth. And what you heard at the TRC, and you recognize it when you see it, is truth. But the court doesn't function that way. The court is functioning on the basis of evidence, and what precisely has been proved and not proved. And it was a particularly unsuitable environment for bringing these kinds of cases, much as the court has largely been an unsuitable place for handling Aboriginal rights cases, though it's become more open in recent decades.
But when details vary, how do you get to the essence of what is true? And what does it mean for something to be true? And you know, if you can't reconcile – whether it's through compensation and damages or apologies or whatever it is – but if you can't reconcile without acknowledging somebody's truth, then you've got to be able to find a way of determining what truth means in these circumstances.
And truth doesn't mean that it was a Wednesday and not a Saturday, who cares?
And my experience is that you saw the truth, you could identify it, it was sitting there in front of you.
And it only required you to open your eyes and open your ears and listen.
[music]
Ry Moran
Blackwater was only the beginning of the flood of lawsuits filed by Survivors against the government and churches.
By October of 2002, more than 11,000 cases had been filed by former residential school students.
Faced with an overwhelming number of claims, the Canadian government and churches agreed to begin negotiations on a settlement.
When the Indian Residential School Settlement Agreement was finally approved by all of the participating parties in 2006, it would go on to award over $5.5 billion dollars to residential school Survivors.
It was the largest settlement in Canadian history at the time.
[music]
Ry Moran
A portion of the funds from the Indian Residential School Settlement Agreement were set aside by Survivors for the creation of the Truth and Reconciliation Commission.
The TRC spent eight years diligently working to collect the testimony of Survivors and reconstruct the history of the residential school system. To do this work, the Commission also needed access to records and archives held by the Canadian government and various religious entities.
And despite parties of the Settlement Agreement agreeing to produce any and all relevant documents to the Commission when requested, roadblocks were continuously placed in the path of the TRC, something I discussed with my producer Karina.
Karina Greenwood
So what kinds of difficulties did you have at the TRC with obtaining the documents you needed to conduct your work?
Ry Moran
So this is a huge, complicated, hours long question. So I don't know if we necessarily have time to cover everything.
There was already early tension around document production between the TRC, the government, and Catholic entities.
So government record production was a whole other kettle of fish. So you have all these religious entities. And first of all, I mean, we know more as a society now about who these entities are and how they operated. But remember, going back in time, we were still kind of at the discovery phase in terms of where these sets of records were.
Then we had to go to individual government departments. And that was like, I mean, just roadblock and barrier after barrier, after barrier, we had to negotiate all these individual MOUS with departments. I mean, everyone was different. They were always changing, they would take time, then it actually came down to the production and there was different scoping and stuff.
And then on the Library Archives Canada side of things Canada basically took the position, they read into the definition of their obligations, and said, ‘Shall compile in an organized manner and provide access to their archives.’ And they said, well, that sentence is actually two different things we have to compile and we have to provide you access to our archives, but we don't actually have to produce anything from our archives. So that was a big challenge, because there was tons of records there. We ended up pulling something like well over a million documents out of library archives, Canada, on residential schools.
What we found along the way, too, is that they were you know, Library Archives Canada - I honestly believe through no fault of their own, as a country we have done an extraordinarily poor job in investing in cultural heritage and also a very poor job in investing in archives generally. So we found that they had this massive backlog of boxes that hadn't even actually been accessioned yet, so the boxes had been sent, from the government department to Library Archives Canada, I mean, some of these boxes literally had been sitting there for like 20 years, 30 years with a big layer of dust on the top of them had never been opened, we don't didn't know what was in them, and we opened them up. And that was so important, because in some of those documents, we actually found proof of attendance, that then actually directly changed compensation to Survivors where they had been previously denied those years of attendance at the schools and then receive compensation, according to the, to the government afterwards, because so much of the compensation process relied on actual paper evidence saying you were in the school this particular year. And of course, due to these archival processes and stuff getting lost and burned down or destroyed. A lot of survivors were not given their proper compensation.
I mean, there were so many steps along the way that were very, very difficult. At the end of the day, it should have been a lot easier. And it was really, really, really, really, really difficult. It was difficult, like on an emotional level, it was difficult on a logistics and operations level. Like on a on a safety level, too. I mean, we would have like I had people yelling at me, like all the time, like, you know, honestly, I mean, this is truth be told, like Catholic lawyers screaming at me, like red faced, like, sort of standing over me and super aggressive. When I was asking for documents, government officials doing the same thing. Yeah, like yelling, yelling. And it was just a really, it was a really hard place to be and to tell you the truth.
And I know the commission was concerned about a lot of things as one, we couldn't ever undersell the responsibilities that we had, we couldn't we couldn't self censor in a way or we couldn't agree to anything less than the most principled of approaches. And that meant full, comprehensive, complete look everywhere, we want it all searches. Because we couldn't do anything else other than that, like I mean, the on a, on a most fundamental level of principle and responsibility and accountability to the to our mandate. We couldn't do anything less than that.
And there is no excuse for parties, religious entities, government of Canada to not be prepared. We remember at the end of the day, the TRC was just there to fulfill their own agreement. The parties settled this and came up with this deal on their own. So when we showed up and started knocking on doors, and people said, ‘well, we're not ready’ or ‘this is too difficult,’ or ‘this is too hard.’ It was kind of like what do you mean, like, you've had years if not decades to prepare for this. And now we're here. Get it going.
[music]
Ry Moran
During our time at the Commission, we heard from many Survivors and communities about the pressing need for an inquiry to investigate violence against Indigenous women and girls. In the TRC’s final report, the41st call to action pressed for the establishment of a national inquiry.
After decades of work by grassroots activists, community members, survivors, and their families, in 2015, the federal government finally agreed to set aside the funds needed for the long-awaited inquiry.
And Marion Buller was asked to lead the work as Chief Commissioner.
Marion Buller
Well, good morning. Good afternoon. Good evening. My name is Marion Buller.
Ry Moran
A member of the Mistawasis First Nation, Marion completed her law degree here at UVic before beginning her career in civil, criminal, and human rights law.
Marion Buller
And then I was commissioned counsel for the Caribou Chilcotin Justice Inquiry, a very intensive learning opportunity for me. And after that, I applied to be appointed as a Provincial Court judge. And I was. Then I was a Provincial Court judge here in BC. For 22 years, I was the first First Nations woman to be appointed to any court in British Columbia, a responsibility I took very seriously.
Ry Moran
Here in BC she also started First Nations/Indigenous Courts and the Aboriginal Healing Family Courts.
Marion Buller
And after 22 years, I was appointed as chief commissioner, the Chief Commissioner for the National Inquiry into missing and murdered Indigenous women and girls. Now I'm back practicing law part time, to kind of complete the circle, and very honored to be the Chancellor of the University of Victoria.
Ry Moran
What a journey hey?
Marion Buller
And it's not over yet.
Ry Moran
It’s not over yet by any means.
Ry Moran
Speaking with Marion – it was disappointing to hear that many of the difficulties we experienced at the TRC in trying to get access to records persisted when the National Inquiry began their work.
Marion Buller
Oh, accessing evidence, always a problem with the TRC, with the work we did at the National Inquiry.
Ry Moran
The greatest difficulties the Inquiry experienced were with the RCMP, which accounted for 39% of all unsolved cases reviewed by the Inquiry.
The Government of Canada resisted disclosing necessary RCMP documents, and many of those received by the Inquiry were effectively meaningless because they were so heavily redacted.1 The government also provided the Inquiry with a production schedule that saw some files compiled and ready almost two years after the Inquiry’s closure. Considering the government also refused to grant the Inquiry its requested two-year extension, this production schedule was a major roadblock to truth-telling efforts.2
Marion Buller
When we were doing our work at the National Inquiry and requesting documents, I knew from the get go, that we weren't going to get a lot of it. I just knew, because that's how government works. I knew that from being a lawyer, I knew that from being a judge. And I knew that there would be hoops that we would have to jump through to get documents, and even then we wouldn't get all that we wanted or needed, because of fear.
And why? Why does that happen? Fear. It's just fear of being caught out. Fear of transparency. Fear of the truth, fear with the truth coming out of people knowing of the public knowing what actually happened. Because if people don't know, they can't hold you to account.
Ry Moran
And I mean, speaking from firsthand experience, it was emotionally expensive to like the emotional labor associated with this, just the level of frustration, the feeling of just sometimes not winning. It was it weighs on, it weighs?
Marion Buller
I think it does, it does. And that's part of the strategy. And I think the saving grace that I had through the work, we did the national inquiries, knowing that the strategy is just simply to wear you down. And so what you have to do is just dig in your heels and say, ‘Okay, bring it on.’
Ry Moran
While there has been some progress in recent years improving access to important government documents and information – reflecting back on my own efforts to get access to records, there’s still a resigned realism that I hold now that is very similar to what Marion describes.
In hindsight, I would have approached my work at the TRC and NCTR with the recognition that we would be lied to, that information would be held back, and that everything we were told was subject to change.
If I were to start over again, I would be guided by the knowledge that withholding information is one of the oldest games in the book, and the bedrock through which powerful institutions maintain their authority.
Despite the difficulties, after two and a half years the National Inquiry released its 1,200 page report and their 231 Calls to Justice – marking another major milestone in expanding knowledge of important and necessary Indigenous truths.
Marion Buller
I think now, as a result of our report, in particular, the National Inquiry’s report, I think people now are starting to grasp how Indigenous women have been marginalized. And the reasons for the marginalization have been beyond their control. Basically, because of colonization.
I think people are starting to become a little more accepting of our use of the word ‘genocide,’ because the numbers keep increasing. I think, now, so much is coming to light about racism, systemic racism, in particular, in policing, we're talking about systemic racism, that was never as part of our national vocabulary. So there are a lot of things that are kind of bubbling to the surface genocide, systemic racism, marginalization, either incompetent or inadvertent or something, policing, the impact of the residential school system that continues through generations, the fact that children are still being taken into foster care at alarming rates. I think these are all starting to bubble up. What I'm finding, though, is how media is, well, some members of the media anyway, are starting to change how they report. And I'm finding some comfort in that.
Ry Moran
In 2019, when the Inquiry released their report, they included a supplemental legal analysis of genocide, providing a background for the Inquiry’s findings.
Ry Moran
I know one of the things that the inquiry did very specifically was issue a complete and separate report on the use of this term in a very substantial legal analysis. Presumably, because we knew this was going to be an uphill battle, trying to educate Canadians on the presence of such horrific human rights violations and really crimes against humanity right in our midst. And perhaps you could just give us a window into that.
Marion Buller
Well, you're correct. We did the supplemental report on genocide, because we knew there would be pushback, and denial. And there still is, but that's why we had that report done. And you know, to me, it's just so obvious when you go through the United Nations definition of what genocide is. We ticked off all the boxes, and then some, which was quite shocking. Even for me, I wasn't expecting that.
If anything comes out of the work that we have done, it's to educate the media, if nobody else, that there's more than one type of genocide, or more than one type of vision of genocide or portrayal of genocide, than what has happened in the past. And my dear colleague, Commissioner Robinson said, ‘genocide in the context of MMIWG2S is death by a thousand cuts, but still death.’ And so a lot of our work we knew was going to have to educate the media about how they portray this. And now the word is being used sometimes even in the right context. But at least, it's part of our national vocabulary. And I think that's important because that's the truth.
Ry Moran
Digging into your dear work of the of the reports that you - you authored and the team authored at the at the inquiry. So the reports are out they've been made public. What are the truths that people have heard now, do you think, and what are the truths that people are still grappling to understand?
Marion Buller
When I look back on the work that we did do at the National Inquiry, what I learned and was still very impressed by is how every day, family members and survivors of violence, as well as the missing and murdered, had to fight for recognition and acknowledgement of their humanity, that they had to fight for acknowledgement of their intelligence, they had to fight to be acknowledged, as a human being, they had to fight the assumptions that they were drunk or drug seeking, when they were seeking legitimate medical attention. The education system abandoned them, the child welfare system, and policing saw them and still see them as easy prey. They've been pushed to the margins of their own communities, their own families, and they have to fight to be acknowledged as human beings. And imagine that every day to have to fight for your legitimacy as a human being. It's mind boggling that you have to do that.
Ry Moran
That humanizing seems, so critically important, because so much of what we're talking about here are human rights, violation of human rights, inherent human rights. I mean, injuries to humanity as a whole by virtue of, you know, these long standing patterns of colonization.
Marion Buller
Well, you know, it's it just shows that how embedded colonial thinking, colonization is in not only, sort of the, the social structure of Canada, but internationally, as well. That there has to be this fight for the acknowledgement of humanity, and how, how wrongheaded that is, and I hope in my grandchildren's generation, they'll look back at us and, and shake their heads and think what crazy thinking was that, that people had to fight to be recognized as human beings. How fuzzy thinking was that? That's my hope for the future that they do that.
[music]
Ry Moran
Towards the end of our conversation with David, he described a case he is currently work on – one where familiar roadblocks are already appearing.
David Paterson
The Haida are involved in a court case against the province of British Columbia for title to all of Haida Gwaii.
Ry Moran
But the Haida nation and the federal and provincial governments are also negotiating outside of court. And in August of 2021, they formalized an agreement for their negotiations, titled ‘a Framework for Reconciliation.’
David read us a portion of the agreement:
David Paterson
… 'British Columbia recognizes that the Haida nation has inherent title throughout, and rights with respect to Haida Gwaii terrestrial,' that is a land base, 'including the inherent right of self-government. Canada recognizes inherent Haida, title and rights are at Haida Gwaii terrestrial including the inherent right to self-government. The parties recognize that the inherent title and rights,' Haida title and rights, 'include the right to make laws and manage lands and resources in Haida Gwaii.'
Ry Moran
But as there is a court case pending, much further down in the text of the agreement there are provisions that read:
David Paterson
‘This agreement in any related negotiations are without prejudice, and cannot be used, construed or relied upon by any party in any proceeding, as evidence or admission of the nature scope or content or geographic extent of Haida Nation’s Aboriginal rights, including title, nothing in this agreement will be construed as affirming, recognizing, altering, abrogating or derogating, from any title or rights of the parties.
But what you have - what you have here, in my view is the two-faced position of the government, which is that, yeah, sure we'll sit down and talk with you, we'll negotiate, and we'll negotiate on fairly broad grounds. But if you don't kind of deal with us, here's what's waiting for you in court. And none of this is going to count for squat.
So, it's about time, in my view, that, quite frankly, the government said the same thing in public, that it's saying in courts, and that the government, on behalf of all of the people of Canada, including the Indigenous people, take a position that it stands by, and it takes that position in negotiations, and it takes that position in court. And it says, if we have to go to court, we're going to go to court over the things that we can't resolve in negotiation. But we're not going to backtrack.
Ry Moran
I couldn't agree with you more there, David. And I've said previous, I mean I’ll say it again now, that if you want to get a sense of the true Canada, in many ways, look at what Canada is saying in court, because you get a very, very, very different approach, hostility, and you know, we're supposed to have open court, it's supposed to be transparent. But in reality, it's not anywhere near as open as these public demonstrations and these public agreement signings, all that kind of stuff. I mean, what happens in court, and oftentimes, the words that are shared there, are not heard by the public, and they represent a Canada that still does not see the rights of Indigenous peoples as being in the best interests of the collective whole. And, of course, these are things that run directly contrary to UNDRIP, and many, many other, you know, fundamental - fundamental human rights processes.
David Paterson
Well, and that's an important point there, because, in fact, we're dealing with two of the most progressive - on Indigenous issues - governments in the country, and the only two governments that have formally adopted UNDRIP. And this is what we're getting from them.
I guess the question that I have in relation to Indigenous peoples, is whether - or the extent to which - they should be forced to resolve their claims in the colonizers court. And we're not anywhere near there yet. But there's no reason in principle, why somebody isn't hauled before court in - in an Indigenous community or in a First Nation, and said, explain yourself, and there will be consequences. And why shouldn't there be consequences? Why do we concede that the European courts are the ultimate decision maker in this process?
They were not upholding the rights of Indigenous people, they were upholding the rights of settlers to take their land. And that's been the story throughout the colonial era. So how long this period lasts, I don't know. But it is important that - that the courts not be seen as the solution to the problem.
Marion Buller
You know, our existing methods for dispute resolution really aren't working. And you know, what the first question should be, in my view, is, well, what would be the traditional Indigenous way of dealing with this type of problem? And let's learn from it, let's see what we can do to make our issue, our problem solving better.
Ry Moran
Progress has been made in the past few years in increasing access to documents and records held by Canada and other entities.
The establishment of the National Centre for Truth and Reconciliation created a home for the records and stories of residential school Survivors, ensuring those truths were preserved for future generations.
The 2014 Supreme Court decision that acknowledged Tsilhqot'in title, and Canada and BC’s adoption of the UN Declaration on the Rights of Indigenous Peoples all likewise represent positive steps forward.
But as David’s description of the Haida Gwaii negotiations or the recent disappointing outcome of the Nuchatlaht court case illustrate – there is significant progress that still needs to happen to ensure our institutions fulfill their promises and obligations, and that the truths and rights of Indigenous peoples are respected and upheld across this country.
[music]
This podcast was created through the direct team work of an incredible group of people. It was written and produced by Karina Greenwood and myself, editing and consulting by Cassidy Villebrun-Buracas, mixing and mastering by Matheus Terra, and music by myself, Ry Moran.
Special thanks to the University of Victoria Libraries team that assisted in countless ways on this production.
Maarsi to our guests Marion Buller and David Paterson.
Taapwaywin is made possible through the University of Victoria Strategic Framework Impact Fund, and with direct support from the University of Victoria Libraries and CFUV Radio.
This podcast was created in unceded lək̓ʷəŋən and WSÁNEĆ territories.
This podcast is created through direct work of an incredible group of people. It is produced and written by Karina Greenwood and Ry Moran, with editing and script support by Cassidy Villebrun-Buracas, mixing and mastering by Matheus Terra, with music by Ry Moran.
Special thanks to Christine Walde, Emily Garry, Kaelan Smith, Lisa Abram, Molly Hanley, Samantha McFarlane, Sophie Beriault, and Julia Cutolo Brusco for all their work and support on this project.
Taapwaywin is made possible through the University of Victoria Strategic Framework Impact Fund and with support from the UVic Libraries and CFUV Radio. This podcast was created on unceded lək̓ʷəŋən and W̱SÁNEĆ territories.