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Canada’s constitutional story may have begun in 1867, but the real story of our home? It started long, long before.

“I’m Ojibwe and I’m also from the Turtle Clan.”

Shianne McKay is a community builder who has worked to advance Indigenous decision making.

“One of our creation stories is that a long time ago there was a big flood that washed away everything. One central figure, Nanabush was his name, was travelling along, sitting on a turtle’s back. And they are in this ocean of water, and there’s all these animals sitting on the turtle. They’re trying to find a new land base. So, they all take turns trying to swim to the bottom to grab some land. The way that I was taught, it the muskrat – the smallest one, the smallest little voice – saying ‘let me try’. And all the bigger animals were laughing at him, like, ‘yah, go ahead’. So, he did. He tried. He lost his life, but he came up clutching in his little paw some land. And they put that land on the turtle’s back and from that grew North America – which we call Turtle Island.”

That’s Shianne’s culture’s origin story. Every culture has one. Mine. Yours.

The reason I bring up this one? For the over 50 Indigenous nations that preceded present-day Canada, the one commonality between most origin stories is a reverence for this land and its inhabitants.

You see, land matters. Land is home. It defines who we are and what we believe.

To understand, let’s start here with Indigenous leader Larry Casper. You might here these quotes a few times, but it’s important to really understand Larry’s words.

“We all are inherently úcwalmicw (the people of the land), wherever you originate from.”

Larry is a member of the St’át’imc nation and has been an advocate for his people and his land – our people and our land – for much of his life. Indeed, caring for this land matters deeply to his people because of their history on this land.

“(The St’át’imc and Indigenous connection to place) stems from the historical length of time that the St’át’imc have lived on this land. It seems only natural that a relative newcomer population would not share this same connection to the land, as they have not been here long enough to establish this deep relationship.”

Which is an interesting perspective on how different cultures value land. So too is this:

“The St’át’imc world view of ownership of land or territory still varies from the modern practice of fee simple or site-specific ownership of land and/or properties. We are more like ‘caretakers’ of the land for the benefit of our future generations. We have a responsibility to pass this knowledge and practice on to our children and fellow human beings.”

And yet site-specific ownership of land is very much how western society works. And since about the Royal Proclamation of 1763, that’s how the Crown has recognized Indigenous rights and title.

You probably remember this from Ian Waddell’s story:

King George declared that Indigenous land existed prior to the arrival of settlers and that their arrival didn’t change land ownership. Indigenous ownership – there’s that word again – could be sold, but only to the Crown, said the decree. No settler could just take land that wasn’t theirs and all transfer of land from Indigenous nations to the Crown had to be settled through legal treaties.

This tattered old document?

It’s literally used as case law in today’s court cases – and so too are historic treaties signed when King George still reigned.

Treaties. Oh dear.

Take it away Joe Urie:

“This goes back to the spirit of treaty. It was meant to be this partnership. It got a little lopsided (along the way). A little bit is an understatement.

Joe, founder of the Jasper Tour Company and champion of Indigenous tourism, is right. The spirit of treaties was certainly lost along the way.

Look, treaties are a lesson onto themselves. And each Indigenous nation that signed one has their own story that they need to tell. Hear them. But when discussing decision-making in Canada today, there is one very big, very important thing you must know about treaties: Not every nation signed one.

The Inuit didn’t. That’s why the Northwest Territories split in 1999 and Nunavut was created.

Also!

Almost every nation found in present day British Columbia didn’t sign a treaty either.

What does that mean?

Well, you know how before a Vancouver Canucks game you hear a land acknowledgement? You remember when the speakers reference their unceded territory? The ‘unceded’ part of the land recognition is really, really important.

You see, a vast majority of British Columbia is unceded, First Nation territory – and who owns what, in western societal terms, is very much in dispute.

Though a modern-day treaty process is underway – it started in BC in 1990 – there have only been a handful of treaties signed. And given the lack of progress, it’s why you see disruption and frustration. On all sides.

Here’s an example:

When a government issues a permit for any kind of activity on public or Crown land, the Crown – or the entity that has been granted authority on behalf of the Crown, say, a resource development company – must have negotiated in good faith with the Indigenous nations who have laid claim to the land in question before the permit was issued. If they didn’t? Even in the eyes of some?

It’s all going to court.

And that might make you angry or happy or indifferent, but remember, on this count at least, your opinion doesn’t matter.

What does?

Section 35 of the Constitution Act. And you can hate Section 35 because you think it bungs up business or because you think it doesn’t go far enough to deliver social justice, but don’t forget how the last two times we tried to change the constitution ended.

In fact, the results of constitutional reform have been so poor, it now is seen as political suicide to even try to amend it.

So, what does this all mean? Confusion! Confusion and frustration is what it means.

And when things get confusing and frustrating because of a constitutional clause, you can bet your very last Loonie that the debate will end up in the Supreme Court.

That’s why we’ve seen cases like Sparrow and Delgamuukw and Blueberry River and so many others that are shaping Canada in ways big and small. I’m not going to break them all down, but you should check them out. Like, maybe not read the entire decisions written by the good Justices (unless you plan on going into Aboriginal law…or the resource extraction business…or politics…or advocacy…or engineering or real estate or journalism or, well, a lot more careers than I realized until I started writing this…), but at least read the Cole’s Notes.

Why?

Because with each Supreme Court decision, we’re getting clarity on Section 35 and a better definition of ownership.

Yet that clarity isn’t resolving disputes faster and that frustrates the St’át’imc nation’s Larry Casper.

“It boggles my mind that the onus is on First Nations to prove they occupy a territory, despite the tremendous record of culture and heritage activities/practices displayed to mainstream society. Mainstream society would benefit from learning about the European-based doctrine of consent, or terra nullius, which characterizes that the land is empty, as the racist basis for European/Canadian governments to claim ownership of our Indigenous territories.”

The rejection of terra nullius is actually one of the Truth and Reconciliation Commission’s calls to action and since that particular call to action hasn’t been acted upon, it’s one reason why Larry feels “the federal/provincial governments still have a long way to go in recognizing us as a full partner in the land we all live in.”

Again, this leads to frustration and anger. But not all of it is unanimous.

As we’ve seen with the Coastal GasLink protest on the land of the Wet’suwet’en nation, there is division in the communities. And that leads to more frustration and anger from those who don’t understand the division.

So don’t be angry! Let me help explain why community division exists!

In Canada, a lot of us assume that there are three levels of government: the federal government, provincial and territorial governments, and municipal governments.

Not true!

We also have Indigenous governments.

The Inuit are represented through the Nunavut Territorial Government, created through treaty – and, in many ways, also through the Inuit Tapiriit Kanatami.

The Métis nation has the Congress of Aboriginal Peoples, as well as other platforms such as the Métis National Council.

And First Nations are represented through the Assembly of First Nations – a model not dissimilar from the United Nations General Assembly because of the number of Indigenous nations represented through the AFN. Members of the AFN are chiefs – the elected leaders of band councils representing over 630 First Nation communities across Canada.

But wait, you say!

Aren’t there only 50 some-odd Indigenous nations that pre-dated Canada?

Yes, but…

You see, a few years after the British North America Act was introduced to form Canada, another act was passed into law: The Indian Act.

I’m not the one who should breakdown this particular piece of legislation for you, but I highly recommend 21 Things You May Not Know About the Indian Act as a staring point. But here’s one thing you must know right now: Band councils and chiefs – those who represent First Nations through the AFN? They’re a construct of the Indian Act.

Indigenous nations, under the Indian Act, were mostly broken down into reserves that became labelled as bands and those bands elect band councils and chiefs from these 630 some-odd First Nation communities. Which means Indigenous nations didn’t have a Westminster-style governance system since time immemorial. Canada gave that system to Indigenous nations.

Gave them? Blackmailed them? Forced it upon them?

Yeah, there’s a lot more to this story and, again, it’s not mine to tell. Go get a copy of 21 Things You May Not Know About the Indian Act and start understanding the implications of the Indian Act.

Look, the reason I bring up First Nation-elected band councils and chiefs is to say that this governance system is not always seen as representative or even valid.

Now, band councils sometimes connect to larger tribal councils – which sometimes are more representative of true Indigenous nations. And sometimes not! There are also Treaty Councils, which represent bands, or even nations, in modern day treaty negotiations. There are also provincial governing councils, which help nations have a voice in areas of provincial jurisdiction.

Which seems extremely complicated and is extremely complicated – and it’s why a government or business negotiating in good faith isn’t as simple as sitting down with one chief or one band council.

And it’s even more complicated than that.

Historical Indigenous governance structures included big houses, clans and hereditary chiefs. This is how some nations have actually governed themselves since time immemorial. And, depending on who you speak with, is still how some nations are governed. And not all nations agree on which system of governance is the legitimate system of governance, which should now help you understand, say, the Wet’suwet’en protests.

Okay, got it?

Now here’s the other reason why seemingly numerous Indigenous nations can support, say, the Coastal GasLink pipeline and yet projects can still stall.

Remember how many different Indigenous nations there are? More than 50!

Remember how many provinces had to agree to the passing of the Meech Lake Accord? Just 10!

Now, remember how Canada couldn’t align support from 10 provinces because one person – Elijah Harper – in one province sorta, kinda killed Meech? Remember when I said that moment foreshadowed our future?

Right. Now think about this:

You’re trying to advance an idea in an area where, say, there are no treaties and that means you need approval from each nation your idea affects because, again, each nation has rights and title under Section 35 of the constitution. Now imagine that support must include not only different nations, but potentially different bands because of the structure the Indian Act created. And now, finally, remember that there might be different governance structures within each community – and that one person in just one of those systems could, in fact, spike your idea.

Makes Meech appear easy, eh? And yet it wasn’t and it failed!

Why am I telling you all of this?

We get mad about everything that doesn’t happen on our timeline, rightly or wrongly, yet too many of us are afraid to ask the hard questions that might actually help us understand the root of the problem.

If we ask the better question? It might not help solve things for either side of a debate faster, but we might have a much clearer idea of how to solve a problem.