Centre for the Study of Democracy and Diversity

Centre for the Study of Democracy and Diversity
Centre for the Study of Democracy and Diversity

Indigenous Land Rights and ReconciliationSeptember 5-6, 2019
Queen's University - Kingston, Ontario

Questions of land rights are at the root of most current conflicts between indigenous peoples and the wider state. In many cases, competing conceptions of the land and authority over the land intersect with conflicts around resource extraction, the terms of consultation and consent, and the political status of indigenous peoples. Yet, the issue of land rights has been largely ignored, even though Canada was the first country to establish a Truth and Reconciliation Commission for indigenous peoples. Without resolving the conflicts around land in a fair and collaborative manner, real reconciliation will be difficult to achieve.

This workshop seeks a better understanding of the normative and ontological considerations that underlie indigenous land claims through 3 main objectives:

  • to provide an open platform for indigenous people to voice their views on land, self-governance, and an appropriate relationship between the Canadian state and First Nations;
  • to explore ways of indigenizing political theory -- both in its conceptual frameworks and its methodologies;
  • to promote respectful and reciprocal collaboration between indigenous and non-indigenous scholars.

The two-day workshop will theorize the justifications for land rights from indigenous perspectives and investigate how these understandings challenge and possibly enrich theories in the Western tradition. Indigenous and non-indigenous researchers and community activists will then turn towards the implications for the political and legal practice.

 

View the Program

Workshop Programme

DAY 1  - Thursday, September 5

Ban Righ Fireside Room

9:00 - 9:30

Welcome and introductory remarks

Kanonhsyonne (Janice Hill)
Associate Vice-Principal (Indigenous Initiatives and Reconciliation)
Queen's University

9:30-11:00

Roundtable: Ontologies of Land

Moderator: Kanonhsyonne
Dale Turner (University of Toronto)

11:00-11:15

Coffee Break

11:15-13:00

Panel 1: Changing the Paradigm - How can we learn from indigenous conceptions of land and justice?

Moderator: Will Kymlicka

How will the Land Recognize You? Regenerating Indigenous Relationships Amidst Reconciliation Discourses
Jeff Corntassel (University of Victoria)

This presentation will detail the limitations of the "reconciliation" discourse in Canada (Corntassel 2012; Corntassel et al 2009) as a legitimate framework for promoting community justice and a pathway for decolonizing relationships between Indigenous peoples and the state. Drawing on comparisons of Indigenous nations in Canada, Corntassel will outline several pathways to justice and sustainable self-determination that are centered on Indigenous Resurgence. As Simpson points out (2017: 48), "Radical resurgence requires a deeply critical reading of settler colonialism and Indigenous response to the current relationship between Indigenous peoples and the state." By examining the literature on resurgence (Simpson 2017; Coulthard 2014; Goodyear-Kapua 2013; Corntassel 2012; Simpson 2011; Alfred & Corntassel 2005) and decolonization (Snelgrove, Dhamoon & Corntassel 2014; Tuck and Yang 2012), this presentation will ask: What are ways that Indigenous knowledge systems are shared relating to land, culture and community that extend our understanding about reconciliation practices and resurgence.

Land as a Matrix for Responsibilities of Reciprocity
Burke Hendrix (University of Oregon)

Indigenous peoples generally seek to protect lands that they currently hold, and seek to reclaim lands that they once occupied. Indigenous scholars have argued that indigenous peoples have an especially intensive relationship to land. Given the frequency with which nationalist movements worldwide are associated with intensive attachments to imagined territorial boundaries, it seems analytically worthwhile to articulate the nature of indigenous connections to land in more precise. This presentation will argue that "land" or "territoriality" are terms that stand in for a more complex and flexible set of relationships between human communities, non-human animal communities, and knowledge practices intended to create patterns of mutual flourishing. Given the continuously changing interrelationships, indigenous territories often cannot be appropriately mapped as property-like territories with clear and fixed boundaries. This suggests that indigenous conceptions of territoriality require a more textured notion of connections to land than is found in the literature on territorial rights.

Indigenous Peoples Human Right to Land
Cindy Holder (University of Victoria)

In most land claims by indigenous peoples there are a number of different grounds on which the claim may be justified. Dr. Holder argues that a human rights approach can provide a framework within which to understand the relationships between these various grounds and how these grounds may and must be engaged in tandem. It is important to recognize that although some indigenous land claims flow from and are paradigmatic illustrations of the human right to culture, in many if not most instances indigenous claims to land are not only or even primarily grounded in the land's cultural significance. The way that land-based claims by indigenous peoples have appeared within the Inter-American human rights system illustrates both the potential of a human rights framework to recognize the relationship between different justificatory grounds for such claims and the importance of recognizing that land rights are not only cultural.

13:00-14:00

Lunch

14:00-15:45

Panel 2: Interacting with the State - Part I

Moderator: Patti Lenard

Reconciling the Indigenous Right to Self-determination with Mining Development: A structural and ontological challenge
Karine Vanthuyne (University of Ottawa)

The growth of the mining industry has disproportionately affected Indigenous peoples and territories. While some impacted communities welcome mining on their lands, others oppose it. The literature suggests that Indigenous peoples' positive engagements with the extractive sector are closely related to the ability to exercise right to self-determination, but mainly focusses on Indigenous people's ability to exercise their right to free, prior, and informed consent while negotiating private impacts and benefits agreements (IBAs) with the industry. What happens once a mine has been built? Are Indigenous communities still able to exercise their right to self-determination on their territory? This presentation will show that free, prior, informed consent was key to the development of a collaborative relationship between the Indigenous community in Canada and the mining company. It will also highlight how a colonial in origin power asymmetry and ontological violence may now be hampering the collaborative spirit of that relation.

Lessons from the Algonquin Modern Treaty
Veldon Coburn (Carleton University)

The work of this project is a theoretical inquiry into Indigenous land-based practices and philosophies of Indigenous territorial integrity. The specific case of the Algonquins of Ontario modern treaty will be examined as a case-study to inform broader understanding of contemporary colonization. Specifically, Coburn will be looking at western international law---and the theories informing nation-state territorial claims---in contrast to the Canadian state's actions with respect to the Algonquin modern treaty. Tentatively, this presentation will argue that actions by the Canadian state amount to partitioning the Algonquin territory for the purposes of cession to the Crown. Coburn will demonstrate that the colonial Crown is excluding the majority Algonquin population (Quebec-based Algonquins) from a treaty that threatens to extinguish their national territory and any territorial rights.

Reconciliation and Land Rights in Australia: A Legal Perspective
Timothy Goodwin (Victorian Bar)

Australian law does not recognise a form of Aboriginal sovereignty, unlike most former British dominions. The native title system has been beset by delays and, although matters have improved recently due to more constructive state government approaches, the system is adversarial rather than inquisitorial or administrative. The question then is: can reconciliation be achieved without recognition of Aboriginal sovereignty in Australia? The recent movements for constitutional recognition and treaty/s negotiation in Australia appear to indicate that Aboriginal demands for sovereignty in Australia will not dissipate but in fact are growing stronger. This presentation will examine the issue of sovereignty, reconciliation and land rights in Australia from a legal perspective -- how might sovereignty, tied to land rights, look in Australia as a form of legal power?

15:45-16:00

Coffee Break

16:00-17:45

Panel 3: Non-Indigenous Understandings of Land

Moderator: Dale Turner

A Continent of and for Whiteness? "White" Colonialism and the 1959 Antarctic Treaty
Alejandra Mancilla (University of Oslo)

There are at least four ways in which Antarctic colonialism was white: first, it was paradigmatically performed by white men; second, it consisted in the taking of vast, “white” expanses of land; third, it was carried out with a carte-blanche (literally, “blank card”) attitude; and fourth, it was presented to the world as a white (i.e. innocent), harmless adventure. I discuss each of these aspects and conclude by suggesting that thinking through them might also help us think about “white” colonialism beyond the White Continent.

The Cultural and Historical Perspective of Welfare Egalitarianism
Kerstin Reibold (University of Tromsø)

Chris Armstrong proposed to determine land rights according to an egalitarian distribution of access to welfare. This proposal opens up interesting questions regarding indigenous land rights. Land often contributes differently to welfare for indigenous and non-indigenous people both for cultural and historical reasons. Culturally, indigenous peoples often need direct access and control of land to convert it into welfare whereas for non-indigenous people land has more often an instrumental role, making it more easily substitutable. Historically, land has different meanings for indigenous and non-indigenous peoples in settler states. While it provides room to live and resources to further well-being for both, land rights for indigenous peoples also have a symbolic meaning in their relation to the settler state which impacts their well-being. The paper will discuss the implications of these cultural and historical differences for a welfare egalitarian approach to land rights.

Indigenous Land Rights and State Territorial Rights
Margaret Moore (Queen's University)

This presentation explores the relationship between theories of territorial rights, often associated with an account of state sovereignty, and indigenous claims for land rights. The inter-relationship has been unexplored. State territorial rights are usually justified in terms of justice (and an account of state legitimacy) or self-determination. Most of the debate around state territorial rights has been connected to rights (liberties, powers, immunities) associated with state sovereignty; the putative territorial right-holder (people, a nation or the state) and the value underlying territorial rights (and the debate mainly focuses on whether it is justice or self-determination). There has been little discussion of the relationship between legitimate control over state territory, and rights over territory, and indigenous land claims, and indigenous claims for sovereignty. The paper will explore the intersection between these two sets of literature, and the challenge that indigenous claims pose for traditional (meaning, white, mainstream) theories of territory.

DAY 2 - Friday, September 6

Watson Hall Room 517

9:00 - 10:45

Panel 4: Land Restitution as Reconciliation

Moderator: Sheryl Lightfoot

Speaking Land, Speaking Ourselves
Esme Murdock (San Diego State University)

Non-Western scholarship on reconciliation is concerned with the overdetermination of understandings/conceptions of land as object, commodity, and private property. This overdetermination transports an assumption that reconciliation simply requires humans' more equitable access to land as commodity. However, this assumption is violent and fundamentally misunderstands or refuses to perceive the ways in which different human groups have various and incommensurable conceptions of and relations to land. Reconciliation requires, especially for Indigenous and Afrodiasporic peoples, a reconciliation framework attuned to the agency of land as wedded to the identities and survivance of peoples. Part of this meaning of reconciliation is the inclusion of land as agent in reconciliation work. This presentation will propose that an investigation of what the land says to black peoples as we speak and advocate for ourselves, as belonging to land, is a profound site and practice of longing for land outside of the imaginaries of dominant structures.

Reconciliation, Duties and Distributive Justice
Dimitri Panagos (Memorial University of Newfoundland)

Reconciliation of Indigenous and non-Indigenous populations in settler colonial states means different things to different people. However, any satisfactory normative account of reconciliation must turn on the establishment of a just relationship between these populations. Rights and duties will be key components of any process reconciliation. This presentation will focus on the latter component by addressing the following questions: Given the goals of reconciliation, what types of duties are required? Assuming that reconciliation leads to the imposition of special duties, how do these duties compare to other duties held by the participants in this process? How do duties of reconciliation impact our understanding of distributive justice?

Territorial Loss and Reconciliation
Avery Kolers (University of Louisville)

Liberal philosophers have failed to convincingly articulate why the loss of home and territory are morally salient bads, and consequently, why return or reconstitution of a dispossessed polity is good. Most accounts posit harms that victims can overcome within a generation at most. Dr. Kolers proposes instead that the wrongs of territorial loss are best theorized in terms of reconciliation. Reconciliation has two senses. In the 'truth and reconciliation' sense, reconciliation is offered after a revolution by the formerly oppressed to the former oppressor, to prevent recrimination and violence. In Canada, however, no such underlying inversion has occurred or is foreseen. Is 'reconciliation', then, simply a show? Dr. Kolers proposes that the aim of reconciliation should be to repair territorial loss by developing an ongoing shared activity of reconciliation in a second sense, the Hegelian sense where each person has a compelling interest in 'reconciliation to their social world'.

10:45-11:05

Coffee Break

11:05-12:50

Panel 5: Interacting with the State - Part II

Moderator: Robert Lovelace

Consultation, Consent, and Resistance
Avigail Eisenberg (University of Victoria)

The Canadian state has interpreted the doctrine of 'Free Prior and Informed Consent' to require only that it 'consult and accommodate' Indigenous people. This presentation will consider how adding the requirement of consent impacts two features of the consultation process. First, the Canadian consultation process' aim is 'accommodation' which prevents parties from having an equal voice at the table or an equal chance to be involved in decision making. Given this, can consent improve the democratic fairness of consultation? Second, is the duty to consult designed to be an attractive alternative for Indigenous people to protest and direct action? Dr. Eisenberg will argue that to view consent as a panacea for Indigenous-state conflict misunderstands the nature of struggles of land developments which are usually about claims to plural authority. The addition of consent to consultation fails to recognize the nature and challenge of these claims and appropriate responses to them.

To What End? Negotiating Metis Land Rights in Manitoba
Janique Dubois (University of Ottawa)

In September 2018, the Government of Canada announced an initial $154 million in funding as part of what the federal minister described as the country's "plan for reconciliation with the Manitoba Métis". An Indigenous nation without a recognized land base, the Métis successfully argued that the Crown failed to make good on historical promises of 1.4 million acres of land in a 2013 Supreme Court of Canada. In order to address the "unfinished business" of reconciliation with the Métis, the federal government has negotiated the first self-government agreement with representatives of the Métis Nation in record-breaking time. A key element of this forthcoming agreement is a land claim settlement. This presentation explores the significance of land to Métis self-government in Manitoba. In particular, it considers the relationship of historical and contemporary demands for land rights with Métis governance practices.

Reconciling Legal Ideas about Territory and Sovereignty in Canada
Mark Walters (Queen's University)

The Mikisew Cree First Nation understands its relationship with Canada in relation to its traditional territory as one that is shaped, in law, by principles of mutual respect and of shared responsibility. Some acknowledgment of this understanding appeared to be emerging in the jurisprudence of the Supreme Court of Canada. Only this week, however, decidedly orthodox views about sovereignty prevailed. This presentation will focus upon the challenge, and the promise, of seeking some kind of legal reconciliation between Canadian and Indigenous conceptions of territory and sovereignty. It is common to conclude that these conceptions are incommensurable and that the best we can do is to hope for practical and contingent compromises. I will suggest that the agonistic approach comes at a cost in both theory and practice. My paper will explore what might be involved in the attempt to reconcile, in law, Canadian and Indigenous conceptions of territory and sovereignty.

12:50-13:50

Lunch

13:50-14:10

Final Discussion and discussion about future publications and conferences

 

 

 
Registration
Thank-you for your interest!
Unfortunately, registration is now closed. However we will be sharing podcasts of the panels in the coming weeks.
Please keep an eye out for updates and related announcements.
Venue Information

The workshop on Thursday will be held in the Fireside Room in the Ban Righ Banquet Hall (10 Bader Lane).
Friday's meetings will be held in Room 517 of Watson Hall (49 Bader Lane).

Queen's University is roughly 1.5km from the Delta Kingston Waterfront Hotel (1 Johnson St). It is an easy 20-25 minute walk through City Park and across Queen's main campus to the workshop venues.

Please refer to the following map, or view the map online, for further directions.

Map of Kingston and Workshop Venues

Centering Indigenous Voices

This workshop places indigenous voices at the centre of discussions about land.

Ignorance towards indigenous voices permeates many academic discourses about indigenous rights. Indigenous scholars' contributions are often ignored or simplified so that they fit within the usual Eurocentric framework, limiting our ability to diagnose current problems adequately and provide resources for an alternative way of addressing indigenous rights to land and political participation.

Academia must give indigenous voices more room and influence in its mainstream theorizing, planting the seeds to change the indigenous-settler relationship into a more equal one, free of colonial vestiges.

 


Acknowledgement of Territory

Queen's University is situated on traditional Anishnaabe and Haudenosaunee Territory.

To acknowledge this traditional territory is to recognize its longer history, one predating the establishment of the earliest European colonies. It is also to acknowledge this territory’s significance for the Indigenous peoples who lived, and continue to live, upon it – people whose practices and spiritualities were tied to the land and continue to develop in relationship to the territory and its other inhabitants today. The Kingston Indigenous community continue to reflect the area’s Anishinaabek and Haudenosaunee roots. There is also a significant Métis community and there are First Peoples from other Nations across Turtle Island present here today.

Canadians have been Called to Action through the TRC Report.


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