tansi ninôtemik,
The land is ever-pervasive in discussions of Indigenous law. In our most recent blog, we criticized the Canadian approach to land as too transactional.[1] In another blog we discuss the Southern Chiefs’ Organization’s fight for the personhood of Lake Winnipeg.[2] One of our first blogs of the season advocates for an Indigenous approach to conservation.[3]
I mention these blog posts not simply to encourage you to go back and read them, but to demonstrate that the notion of Land Back is a central tenet of this blog.
So what exactly is Land Back?
Simply put, Land Back is a movement based on Indigenous sovereignty and stewardship over the land. But many view Land Back as much broader than that: Nickita Longman, a member of George Gordon First Nation, states that “any time an Indigenous person or nation has pushed back against the oppressive state, they are exercising some form of landback.”[4]
There is a pervasive fear among those new to Land Back that they will be displaced as the movement progresses. While Land Back does advocate for the return of unceded territories, it does not advocate for violent displacement.[5] However, there is no space within the movement for those who wish to continue under capitalist values.[6]
"It is acknowledging that only when Mother Earth is well, can we, her children, be well. It is our belonging to the land – because – we are the land."
NDN Collective [7]
What does Land Back have to do with the Constitution?
While Canada does have a formal constitution, it is also composed of many other written and unwritten components. The preamble of the Constitution Act, 1867 states that Canada will have a constitution “similar in principle to that of the United Kingdom.”[8] The UK Constitution is a series of written documents and unwritten principles that have never been codified.[9] Included in Canada’s constitutional documents are The Royal Proclamation of 1763 and the many historic treaties signed between Canada and the Indigenous peoples.
The Royal Proclamation and historic treaties provide a legal basis for a pluralist understanding of the Constitution. A contextual interpretation of the Royal Proclamation and the 1764 Treaty of Fort Niagara reveals an equal power dynamic in which Indigenous peoples maintained their sovereignty.[10] The two-row wampum, which recorded the treaty of Niagara, symbolizes two nations peacefully coexisting and not interfering with the others’ self-determination.[11] Canada’s legal traditions necessarily include that of Indigenous peoples.
Land Back can be understood as a fight for the rightful, pluralist interpretation of the Constitution. Indigenous peoples have the inherent right to self-determination and stewardship of their lands. Land Back is essential to the future of Indigenous law within Canada.
[12]
ekosi.
The ReconciliACTION Team
Citations
[1] ReconciliACTION YEG, “Transactional: The Canadian Approach to Indigenous Lands” (7 October 2024) online: <https://www.reconciliactionyeg.ca/post/transactional-the-canadian-approach-to-indigenous-lands>.
[2] ReconciliACTION YEG, “Charter Challenge: Lake Winnipeg as a Living Entity” (24 September 2024) online: <https://www.reconciliactionyeg.ca/post/charter-challenge-lake-winnipeg-as-a-living-entity>.
[3] ReconciliACTION YEG, “Indigenous Perspectives and Wolf Culls” (17 September 2024) online: <https://www.reconciliactionyeg.ca/post/indigenous-perspectives-and-wolf-culls>.
[4] Clare Elise Thompson, "Returning the Land" (25 November 2020) online: <https://grist.org/fix/justice/indigenous-landback-movement-can-it-help-climate/> [Thompson].
[5] David Gray-Donald, “What is Land Back? A Settler FAQ” (10 September 2020) online: <https://briarpatchmagazine.com/articles/view/what-is-land-back-a-settler-faq>.
[6] Ibid.
[7] NDN Collective, “LANDBACK” online: <https://ndncollective.org/landback/>.
[8] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, Preamble, reprinted in RSC 1985, Appendix II, No 5.
[9] The Constitution Unit, “What is the UK Constitution?” online: <https://www.ucl.ac.uk/constitution-unit/explainers/what-uk-constitution>.
[10] John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government” in Michael Asch, ed, Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver: UBC Press, 1997) 155 at 158.
[11] Ibid at 164.
[12] Thompson, supra note 4.
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