Magic Fairy Dust and Land History

Is change afoot in Canada?

Photo by Benjamin Davies on Unsplash

The Court might as well speak of magic crystals being sprinkled on the land as a justification for the diminution of Aboriginal occupation and possession. Crown title simply does not make sense to Aboriginal people (and one suspects to many non-Aboriginal people).¹

Let me begin this week by stating clearly and unequivocally that I am not a lawyer and have received no training in the law. I do believe that there are some obscurities to the law here in Canada that keep us from justice for Indigenous Peoples. Most of us don’t know or understand how concepts like Crown Title work or came into existence. We simply assume that these underlying principles make sense and are the best options that we have. But, as John Borrows, who is a lawyer, states in the opening quote, sometimes there is no more substance than the equivalent of “magic crystals” behind these claims.

So, what does Borrows mean? What are the implications? Is there anything to be done about it? How does understanding these concepts aid in the process of reparations and justice for Indigenous Peoples?

I want to provide us with an overview of three concepts over the next few weeks:

1. Magic fairy dust and its relation to Crown Land vs. Aboriginal Title

2. An ancient unresolved debate from the 15th century that was recently resolved in the sky.

3. Why courts seem to be grumpy about something lawmakers failed to resolve in the 1980s.

Magic Fairy Dust

In Canada, 89% of the land mass is categorized as Crown Land, and in British Columbia, it is 98%. This assertion is based on the idea of terra nullius, where it was declared that in the absence of Christian people, the land could be considered empty and void and that those who reached these shores from “civilized” European nations could claim the land for God and King.

However, there has been an acknowledgement that the land was not empty and void but inhabited and governed by Indigenous Peoples. Now, in the courts, when land claims are being considered, Indigenous nations have to prove their claims to the land in a very slow and limited process (only six claims can be in the court system at any one point in time if they are new claims where no existing treaty is in place). The Delgamuukw decision took 100 years to settle. They got started before it was even legal to go to court for land claims.

The crazy bit is that Crown sovereignty is assumed. The structure of the law agrees that by declaring sovereignty, European kings, in effect, sprinkled magic fairy dust over the land. That powerful speaking simply erased Aboriginal sovereignty and replaced it with Crown sovereignty.

Most Canadians do not question this concept or even think about it. Borrows claims that if considered, non-Aboriginal Canadians might consider this as non-sensical as Aboriginal peoples do. Is this really the foundation upon which we believe Canada should be built? What do you think of the magic fairy dust erasure of one group’s claim to land and replacement with another group’s sovereignty?

Right now, there is a slow movement of people who are examining their own relationships to stolen land and stolen labour. They are committed to building new foundations, new patterns, and new rhythms. Actually, that is not quite true. More accurately, they are interested in uncovering and renewing commitments to old foundations, ancient patterns and radical rhythms.

Admittedly, this path can be overwhelming and disorienting. We can also choose postures of adventure and mystery. I got to hang out with a historian last week who is uncovering the layers of history upon the land. He renewed my energy for searching out hidden histories, not just to know stuff, but to set things right. To start with good accountings of what exactly has happened and how, together, we might start to have conversations for healing and repair that don’t rely on magic fairy dust declarations but are building or rebuilding or restoring a foundation where flourishing is possible for all.

1. Borrows, John “Soverignty’s Alchemy: An Analysis of Delgamuukw v. British Columbia” https://www.sfu.ca/~palys/Borrows1999-Sovereignty%27s_Alchemy.pdf