Is Canada Built on Aboriginal Land?

Not.

For the most part, Toronto still seems on the surface to be the same peaceable kingdom I left 25 years ago: a model high-trust society, of peace, order, and good government. We probably have no idea how good we’ve got it. But there are shadows that were not there before.

One is the common presence of small posters, the size of as standard A4 page, with racist slogans like “Canada: celebrating 153 years of genocide”; and “Crown land is Native land: time to give it back.”

As noted in an earlier post, these are blood libels, calculated to promote hatred towards a specific group: those non-Indians whose ancestors came to Canada more than a few generations ago. Since this is a minority of the population, and often a visible minority, we are talking about a vulnerable minority. One that is, in fact, already actively discriminated against.

We dealt with the “genocide” charge in an earlier post. Now let’s consider the “stolen land” charge.

Brace yourself for an intellectual jolt. The truth is, in either legal or philosophical/moral terms, the “First Nations” or Indians never owned any land, or very little.

Property, as a legal concept, is a thing that you enjoy the use of to the exclusion of others. Essentially no Indian group held any real estate in this sense: all just wandered through the landscape. If one group encountered another, they would try to kill each other. But it would be impossible to draw any borders or property lines.

Consider then this obvious analogy: why is nobody allowed to own the waters, or the air? Why is land different? Because everyone moves freely through the waters, and freely uses the air—just as Indians used land.

Thomas More and John Locke, among others, set out the philosophical framework here. Land, air, and water are all created by God for the good of all. Nobody, in principle, has the right to claim ownership over it to the exclusion of any other human who requires it. Can you imagine withholding water? Can you imagine withholding oxygen?

It is only their own labour and ingenuity, not the land itself, to which a human can lay claim. He or she can therefore own real estate if and only if they have somehow invested their labour into it, and their labour is inseparable from the land itself: if they have cultivated it, or built something on it.

On this principle the idea of “squatter’s rights” is based. If land has been lying fallow, and somebody comes along and begins to cultivate it, or build on it, they then own the land they have cultivated or built on. The previous owner, by not using the land for some set period, five or ten or twenty years, has waived their moral right to it.

By this logic, yet again, Indians, to the extent, almost total, that they were hunter-gatherers, and built no permanent structures, owned no land. The land was the shared inheritance of mankind. Starving people coming from Europe, from Ireland, or Poland, or the Ukraine, had a right to use it. Nor, Locke would argue, was this a matter of taking anything away from Indians or anyone else. A hundred people can, with agriculture, survive on the same plot of land that only one person can survive on by hunting and gathering. Accordingly, any person who cultivates one acre of land has in effect given 99 acres to the general coffers.

Despite this recognized principle, throughout Ontario and the Prairie Provinces, the British and then Canadian governments formally negotiated treaties with any Indian groups then present, paying them to relinquish all claims to the land. The point was to ensure peace and harmony between the two groups, and have the Indians recognize the sovereignty of the government; the notion of aboriginal land rights was a useful legal vehicle to allow this. This aboriginal land right was actually a gift from the Crown, bestowed by George III in the Royal Proclamation of 1763. In negotiating the numbered treaties, Indian groups who had no plausible “aboriginal” claim to any land, having moved into Canada only decades before, were granted the same deal as others.

But, all that said, it makes no sense to ignore these treaties and claim that the Indians somehow still own land they sold by these treaties generations ago. If you buy a house, does the previous owner still own it? And if so, which previous owner?

Aside from dismissing the crazy notion of lingering and eternal aboriginal land title, the philosophy behind land ownership ought to remind us of something else: that Canada’s immigration policy ought, by moral right, to favour not already well-off professionals, as it largely now does, but the able poor and oppressed. Whose ability could be demonstrated after perhaps ten years of residency by what they have done to develop and improve the natural resources God has left on this portion of the globe