Indian Land Claims Are Illegitimate

 

Lord Biggar writes in the National Post, seeking to justify the European conquest of Australia and the Americas, displacing the aboriginal people. He argues that the First Nations did not own the land: “Rules or laws, supported by social authority and the threat of punishment, create rights to own things —rights to property.” So the native people had no rights. Too bad.

This is wrong. Rights are not created by government. They are self-evident and inalienable, given by God. Our essential human dignity gives us rights. We are not animals; we are not things. We are in the image of God. Governments are merely formed to protect these rights.

The three principal human rights, according to Locke, are “life, liberty, and property.” 

“Property” has always been a little controversial; Jefferson regrettably changed it to “pursuit of happiness.” 

After all, how can anyone have an inherent and inalienable right to ownership of property? Property is so obviously separate from the person.

Simple, according to Locke: you own what you make. You own the products of your own labour, intellectual or physical.

However, because they had no functioning government, the aboriginal people in Canada or Australia could not protect their rights, although they had them as a moral imperative. They were regularly killing, enslaving, and stealing from each other. 

This is why they were so culturally backward—let’s be honest—they had not even invented the wheel. They were still in the Stone Age. 

There is no point in putting out any effort to make or invent anything if someone else can just take it. Nor is there time for such things if you must always be watching for  sudden attack.

So the best thing that could have happened to aboriginals was the coming of the Europeans. It is simply racism to say it mattered that Europeans brought law and order to the Americas instead of Indians themselves. 

Now, in doing this, did the Europeans steal the Indians’ land? No.

Firstly, Biggar is wrong to suggest that contact between Canadian First Nations and Europeans was mostly “friction, conflict, defeat and conquest.” You might say that about parts of the USA, but not Canada. In most places, local tribes welcomed the Europeans. Trading made the Indians rich and powerful against their enemies, and the Europeans generally protected them from their enemies as well—defended their rights. 

Before the Europeans came, the stone-age Khoi people of South Africa (the Bushmen) would go to the nearest Bantu tribe to resolve their disputes—because they had no legal system of their own. The alternative was endless vendetta. The Europeans did that for the warring tribes of Canada. When the Canadian government proposed permanent treaties, native groups flocked to petition in hopes of getting one. It was a matter of signing on to the social contract and getting the protection of the law. It was not about land. Treaties were signed with tribes newly arrived from the US, who had no conceivable land claims.

That said, throughout most of Canada, the treaties did have the Indians surrendering any theoretical property rights, including mineral rights. In this sense, too, the land was not stolen or conquered: it was sold, in exchange for something the Indians found more valuable: life, liberty, and the secure possession of property.

And even then, the Indians had not actually given up a square inch of land. They retained the same right as any European settler to take up land under the new system and farm it. As Canadians, they still owned it.

Now recall the basic principle: the right to property is a right to what you have made. The Indians had not made the land; they only hunted over it. They had a right to the game they killed, or the berries they picked, but not to the land itself. God made that. Any more than anyone can own the air or the sea: it is there for all mankind to use. 

One establishes land ownership when one’s labour is somehow invested in it and cannot be easily separated from it: if, for example, you have built a structure on it, or cleared, ploughed, fertilized, and planted a field, or dug a mine. This is the basis for squatters’ rights in common law. If the supposed owner is not using the land, and you start using it, it properly becomes yours.

So as hunter-gatherers, the First Nations by and large owned no land until the Europeans came.

Didn’t the coming of the European settlers at least force the Indians to change their way of life? Isn’t there an injustice in that, at least?

No; not in Canada. Even today, 89% of Canada is Crown Land. The Indians are still free to hunt and scavenge through it as they always have. It’s just that they now have better opportunities.

But I end with the same conclusion as Lord Biggar: to give this or that band eternal payments, and then royalties because resources are being extracted in the general vicinity of their reservation, is unjustifiable. It violates the principle of human equality, of equal rights.