Land was not empty.

• Author: Fenwick, Fred R.

Can native loggers in Nova Scotia freely access the forests of that Province to cut maple logs? Do First Nations in BC actually have claims to the whole of the Province as unsettled land claims? Why are natives in Northern Alberta claiming mineral rights and attempting to block oil exploration? These and similar issues are often in the news, but it is sometimes difficult to see where the issues came from and what they mean for the future both for aboriginal nations and for the larger society. This column is the first of a regular series in LawNow. I hope in future that we can explore some of the legal and historical background behind these issues.

I thought that for this first column, I would pose some general propositions that are relevant hoping to explore them in some detail later, with reference to actual cases and issues.

First, and most obviously, North America was not empty when the colonizers came. Native nations existed, distinguished themselves in the usual ways (language, culture and population density), and exercised sovereignty over distinct areas in the usual ways (settled population base, utilization of natural resources within a geographic area and exclusion, by force if necessary, of other nations from that core area). When the colonizers first came, they arrived in very small numbers to a land already settled and relied on the native nations not only for directions to get around, but most often for assistance to actually survive. There never was a single pitched battle where the Europeans conquered the native nations and took over administration of the land like France losing the French and Indian War in 1759 and signing over territory (including Quebec) to England at the Treaty of Paris in 1763. On the contrary, the native nations and their legitimate occupation of the land were recognized in Treaties right from the start, even if we did develop a sad history of ignoring or unilaterally changing those treaties later. Treaties have always been acknowledged by Canada as solemn agreements between sovereign nations which recognized that Canada was not colonized through force of arms but through active negotiation with the native nations.

Second, we ought to have some consideration for the length of time that the colonization of North America took and the differences which this made to our negotiations with different native nations. To take two examples, the Treaties that are being discussed with respect to the Nova Scotia...