Whack! The judge’s gavel came down, and the province of B.C. lost any undisputed authority over the West Kootenays -- essentially, the whole south-flowing Columbia River basin.
The headwaters of the Columbia River flow north, through the East Kootenays. Then, at what used to be called the “Big Bend,” the Columbia turns south. It fills a series of lakes behind hydroelectric dams, runs past Revelstoke through the Arrow Lakes, past the Cominco smelter at Trail, and into the U.S.
Along the way, the Columbia picks up several large tributaries. The Slocan River, flowing down from one of the loveliest lakes in B.C., joins the Columbia at Castlegar. So does the Kootenay River, almost as big as the Columbia itself, with its own series of hydro dams that created West Kootenay Power, now known as Fortis.
Last Monday, Judge Lisa Mrozinsky ruled that a supposedly extinct First Nation, the Sinixt, still exists. And by implication, they can claim aboriginal rights to most of the West Kootenays -- roughly, from Trail in the west, to Creston in the east, to Revelstoke in the north. A huge territory – and hugely important for B.C.’s resources, industries, and tourism.
Declared extinct
Here’s the background. The Sinixt people used to call themselves the “mother nation” of the Salish tribes in southern B.C. They migrated up and down the Columbia. But they got displaced. First by gold miners. Then by settlers, who coveted the rich bottom lands of the valleys. And finally by industry – logging, electricity, and mining.
In the way that governments did things then, the Sinixt got pushed from reservation to reservation, until they finally shuffled to Burton, on the Arrow Lakes. Twenty people lived there. The rest of the nation went south into the U.S., where administrative rules trapped them among the Colville Confederated Tribes.
When the last of those 20 Sinixt at Burton died, in 1953, the federal minister of Indian Affairs declared the tribe “extinct.”
“If there are no living members of the band,” explained a government representative, “there’s no band.”
In 1995, Minister of Indian Affairs Ron Irwin admitted extinction was only a designation “for the purpose of the Indian Act. It does not mean that the Sinixt ceased to exist.”
Extinction was a convenient legal fiction. It saved the government from any further negotiations with the Sinixt – for example, about drowning Burton behind the new Keenleyside dam. Not that governments in those days did much consulting with aboriginal peoples anyway.
But now they will have to.
Limited role of courts
So what gives a judge – any judge, anywhere – the right to overturn 200 years of land use decisions?
The short answer is, she didn’t. Judge Mrozinsky ruled only on a hunting issue.
Despite irate letters to the editor denouncing judges for making new laws and defining social policies, they don’t. The justice system has, in reality, a very narrow focus. It can only deal with existing laws, as they are written. The privilege of creating or amending laws belongs solely to elected parliaments.
Courts cannot base judgements on popular opinion. They cannot rewrite laws to match changing social standards. They cannot make decisions based on hypothetical future implications. Only the highest courts can deal with long-term implications; lower courts deal only with the case at hand.
But occasionally existing laws conflict with each other. That’s what happened in this case.
Here’s the background. A Sinixt man, Richard Desautel, came up from Washington State in 2010 and killed an elk in B.C. He was not a B.C. resident, and did not have a B.C. hunting licence. But he claimed he was exercising his aboriginal rights.
The conflict was between a number of Supreme Court rulings about unextinguished aboriginal rights as defined in the Canadian Constitution, and provincial hunting regulations.
Judge Mrozinsky had little choice. She could not give a local hunting regulation precedence over rulings by the Supreme Court of Canada.
So she acquitted Desautel.
Opening up Pandora’s box
From what I can read, that’s all she did.
But her ruling established that the Sinixt’s aboriginal rights were not extinguished just because a cabinet minister had declared them extinct.
“Do I look extinct?” asked Bob Campbell, a member of the Sinixt nation, outside the courtroom. He vowed that he, and his children and grandchildren, would continue to struggle for the Sinixt land claim.
Judge Lisa Mrozinsky did not deal with that claim.
The question of who has authority over the West Kootenays will depend on another court, at another time.
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Copyright © 2017 by Jim Taylor. Non-profit use in congregations and study groups encouraged; links from other blogs welcomed; all other rights reserved.
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YOUR TURN
The column about good people, like Jessie Oliver, being caught in the dogpile of censure heaped on Indian Residential Schools obviously hit a responsive chord. Lots and lots of letters.
Chris Duxbury, in Australia: “I agree with you when you point out the danger of a group being tarred with the same brush. We label someone and then assume that we know everything about that person because of the label that we have applied. That is what Jesus seemed to fight against in the New Testament -- Tax Collectors, Women, Samaritans. These labels acted as barriers to stop people from getting to know the individual. It is refreshing when we can broaden our understanding and go beyond the label. We might even give them back their humanity and gain a more balanced picture of reality. The more we do this the more we see that we don't live in a black and white world.”
In a similar vein, Susan Peverley wrote, “There were those who asked: ‘What good could possibly come from Galilee?’ When we make blanket statements about those who are different, we all suffer. A lifetime ago, when I worked at a motel in Moosonee On., I was confronted by a (very intoxicated) aboriginal man who was almost belligerent in his statement that I probably thought all “Indians’ were bad. My response floored him: ‘I believe that there are good Indians and bad Indians, just as there are good white people and bad white people.’ I prefer to think that there were good people who worked in residential schools, but there were also bad people. It is truly unfortunate that all are painted with the same brush.”
Gwen Boyd knew Jessie Oliver personally: “Thank you for your thoughtful words. I knew her well and loved her dearly as did all those who knew her. She also worked as a deaconess (as they were called then) with my father Jack Murdoch. He was a mature theology student when your father was principal. When the trial of Arthur Plint was taking place in Nanaimo, I attended most of the sessions with Charlotte Sullivan and many other United Church folk. A number of us were very conscious of people like Jessie who gave of themselves unstintingly to nurture the children in their care. There are others like Jessie, whose reports of abuse were also ignored. Jim and Eva Manly made a film about a woman who was at Port Simpson. The whole concept of the residential schools is a bleak chapter in the history of our church and our country.”
Tom Watson made a current connection: “There are many throughout history who have found themselves in an unjust system. They had, at that point, three options:
(1) Look the other way and benefit as they could,
(2) get out because their conscience wouldn't allow them to continue,
(3) stay and try to do what small acts they can, where they are, to make a difference.
“Is it possible that current political affairs offer the same options to those responsible for governing: Know that it's wrong but keep going because of the benefits; get out because to stay is just too discouraging; stay and try to bring about change one small step at a time?
“And those of us who look on from the outside have the same options, boiled down perhaps to two: Become discouraged and give up, or try to remain hopeful while doing positive things ourselves.”
Peter Scott raised a parallel issue: “In one of my congregations many years ago there lived a couple with four children. Two were "adopted" First Nations children. I knew that family for 17 years and watched and admired how all those children were loved and cared for. I am sure that part of the reason those two First Nations children were adopted was because that couple wanted to do a "good thing" in the midst of a bad situation they had not created. Are we now telling them that what they did was wrong? Should those adopted children now reject the parents who loved and cared for them for all those years? I hope not. It makes me tremble to wonder what "good things" we are doing today that will be condemned as evil in fifty or a hundred years.”
Tom Isherwood reminded me that aboriginal children weren’t the only ones wronged: “I am living proof. I arrived in 1947 at the age of eight years old to survive at Fairbridge Farm School, a British orphanage situated near Duncan on Vancouver Island. Seventy years have passed… I had no idea that I had siblings who were shipped to Australia a few years after I was exiled to Canada…”
Tom’s story begs to be told. I hope I can, one of these months.
Several readers just sent thanks. Among them, David Martyn, Jann Derrick, Eleanor Geen.
Isabel Gibson wrote, “Thank you for a careful and reasoned defence of Senator Beyak's statement and of Jessie Oliver and all those like her. It's become almost impossible to introduce ‘light, not heat’ (per Woodrow Wilson) into contentious, emotional matters of our public life and discourse, but I think you've done it.
Isabel raised a couple of related issues. Here’s one of them: “I'm watching -- in some alarm -- as differing/nuanced opinions on a range of issues are now damned with an emotion and self-righteousness that I think religious heresy used to engender. Where only one opinion/conclusion/position is judged as being intellectually honest or humanly valid (think catastrophic anthropogenic climate change, one of our new religions), those who voice anything else or who ask any questions, risk being shouted down (at best) or having their careers/reputations metaphorically burned at the stake.
“People who say demonstrably untrue things should be shown to have done so, but ‘different from what I think’ is not necessarily ‘untrue,’ and not every untruth is a capital offence. We think we've eliminated mob rule from our society. I wonder whether we've merely substituted new targets and methods for old.”
Bruce Fraser wrote, “You are brave in daring to speak positively about Senator Lynn Beyak's comments. You didn't agree with everything she said; but in some circles, even sticking your head up is enough to get you shot. Good for you! And your dogpile analogy fits perfectly. “
Bruce McGillis: “Residential schools are but another of ongoing human failings. Since human failings have always been around, I don’t expect much improvement. However, your writing at least keeps failings out front, and maybe keeps failings from being worse.”
Bruce had a persona story to share: “The RCMP came on the reserve and took the boy into the residential school. His parents never objected; he never understood why they did not object. I gave a talk about parents waiting for children to emerge with their pay packets; a law that all children up to 16 must attend school put an end to child labour. The boy came to me after the talk; this small incident enabled the boy, now a man, to rid himself of his anger.
“It seems to me some benefits of the schools are not being appreciated.”
So did David Gilchrist: “I spent a year teaching grades 5,6,7&8 in a residential school. The Grade 1 teacher (wife of the local store keeper) lived there for many years, and I don’t recall ever hearing a negative word about her. The grade 2 teacher was a delightful, loving, compassionate Welsh lady who seemed to care for her students as if they were her own children. The grade 3,4 teacher was a lass just out of high school, a lovely gentle lady.
“But the Principal? When he heard my students calling me David, he told me to strap anyone who did! I was rigidly taught to obey orders from my superiors; but this seemed so unjust… Yet I thought I had to obey. The victim was one of my favourite boys. That night, I broke down, crying uncontrollably. I made one of the most important decisions of my life: that I would never again obey an order that I believed to be wrong. Bravo for Jessie Oliver!”
Sterling Haynes also had direct experience with the residential schools: “Yesterday’s column was not politically correct, but accurate.
“I was one of the doctors at the Indian residential schools in Williams Lake and later in in Kamloops. I did this for almost 20 years: I liked the kids and they liked my wife and me. It helped when I had oranges and candy for the kids, especially if they had to have a cut sewn up, or a needle given, or if they were especially brave.
“I deplored the philosophy of the Residential Schools and the attitude of the priests and some of the nuns -- although not all the nuns were abusive.
“I was naive when I reported nasty, abusive behavior to the Bishop in charge of the kids. It was only in 1980 when I learned that the Bishop had been jailed for four years for abusing young women that I realized he had done nothing about my complaints. I still feel guilty that I didn’t call the RCMP, not the Bishop, over nasty, criminal incidents. [Even so] there were some dedicated, compassionate people who worked at the Residential Schools.”
Steve Roney agreed with me: “The majority of those who worked in the residential schools are not just guiltless, but unusually admirable people. They tended to be motivated by compassion and idealism — rather like the folks who volunteer for Habitat for Humanity today. They accepted a life of isolation, often of hardship, in order to help the native people.
“And now they are reviled for it, and anyone speaking in their behalf is reviled for it. This [too] is a great stain on Canada’s honour.”
Pat Grant commented, “I was astounded at suggesting that people like Jessie Oliver, a decent, caring person teaching or leading within the dreadful Indian Residential Schools, were cruel criminals. Every example of horrendous systems has, within it, stories of remarkable, brave, subversive people who try to bring in a tiny bit of goodness.
“The best illustration of this, I think, is the Yin-Yang symbol. That very small spot of black in the white, that very small spot of white in the black, is an ancient symbol of this.”
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TECHNICAL STUFF
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PROMOTION STUFF…
Ralph Milton ’s latest project is called “Sing Hallelujah” -- the world’s first video hymnal. It consists of 100 popular hymns, both new and old, on five DVDs that can be played using a standard DVD player and TV screen, for use in congregations who lack skilled musicians to play piano or organ. More details at www.singhallelujah.ca
Ralph’s HymnSight webpage is still up, http://www.hymnsight.ca, with a vast gallery of photos you can use to enhance the appearance of the visual images you project for liturgical use (prayers, responses, hymn verses, etc.)
Wayne Irwin's “Churchweb Canada,” an inexpensive service for any congregation wanting to develop a web presence, with free consultation. <http://www.churchwebcanada.ca>
I recommend Isabel Gibson’s thoughtful and well-written blog, www.traditionaliconoclast.com
Alva Wood’s satiric stories about incompetent bureaucrats and prejudiced attitudes in a small town -- not particularly religious, but fun; alvawood@gmail.com to get onto her mailing list.
Tom Watson writes a weekly blog called “The View from Grandpa Tom’s Balcony” -- ruminations on various subjects, and feedback from Tom’s readers. Write him at tomwatso@gmail.com or twatson@sentex.net