Front matter

COMMON

HUNGER o Land Rights in Canada and South Africa ©

IMT PTF

Part Two © Reclaiming the Land [4] © LITIGATION

97 Introduction 98 Aboriginal Rights Court Cases in Canada 99 The Gitxsan and Wet’suweten of British Columbia 103 Delgamuukw v. British Columbia: The Supreme Court Decision (1997) 105 Aboriginal Litigation in South Africa 105 The Richtersveld Case: Background 109 The Richtersveld Community v. Alexkor Ltd. e& the Government of the RSA (2000) 114 Conclusion

[5] © NEGOTIATING RESTITUTION

118 Reclaiming the Land in South Africa

119 The Restitution Process in South Africa

120 Challenges to Restitution in South Africa

121 Case Study: The Mogopa Community, North West Province

123 Rebuilding Communities

125 The Conservation Factor

126 The Case of Kosi Bay, Maputaland (KwaZulu-Natal)

129 Negotiating Land Restitution in Canada

131 The Lubicon Cree, Alberta

134 The B.C. Treaty Commission

[6] © SELF-GOVERNMENT

137 Restoring Sovereignty

137 Negotiating Self-Government in Canada

140 The Sechelt Agreement

141 The Inuit Peoples of the Northwest Territories

143 The Nunavut Land Claim

147 Reversing “Self Government” in the Former Bantustans 151 Conclusion

Part Three [7] ©

155 156 160 166 169 174

[8] ©

177 177

207 ©

RESTORING DIGNITY

The Hunger for Dignity

Legacies of Dispossession in Canada Legacies of Dispossession in South Africa The Problem of “Invisibility”

Land Matters: Restoring Dignity Conclusion

RECONCILIATION

The Purpose of Public Inquiries

Canada’s Royal Commission on Aboriginal Peoples (1991-96)

Critiquing the RCAP Process

South Africa’s Truth and Reconciliation Commission (1996-98)

Critiquing the TRC

Reparations

Uncovering the Truth

Why Land Rights Matter

The Task of Nation-building in South Africa The Power of Stories (Canada)

Appendix

Notes Bibliography Index

Preface

This comparative history of two former British colonies - Canada and the Republic of South Africa — focuses on the response of indigenous peoples to their experience of European colonization and domination.* While the methods and political objectives of dispossession differed in many important ways, the alienation of land had devastating consequences for the aboriginal peoples of both countries. Today, by reclaiming rights to the land and an equitable share in the wealth-producing resources they contain, the first peoples of Canada and South Africa are taking important steps to confront the legacies of poverty that characterize many of their communities.

On a visit to South Africa in October 2001, I took a journey that led me to the heart of the land rights issue. A community in the Richtersveld, 600 kilometres north of Cape Town, was reclaiming traditional land belonging to the state-owned diamond company, Alexkor Ltd. The case, which was similar to many aboriginal land claims in Canada, was unusual in South Africa. The Richtersveld land claim was based on both racial discrimination and aboriginal rights - the first such case in South Africas history. Henk Smith, the community’s lawyer, encouraged me to visit the area and meet some of the people.

As we drove north from Port Nolloth along the tarred coastal road to Alexander Bay (where the Alexkor headquarters are located), the diamond company’s presence was everywhere. Two rows of tall, barbed wire fences had been erected along the road, sealing off the mining operation from intruders. Beyond the tailings dumps we could see hydraulic excavators, bulldozers and dump trucks at work extracting the diamondbearing ore from the beach terraces. On the road inland from Alexander Bay, where the Gariep (formerly Orange) River flows into the sea, the ubiquitous Alexkor fences lined the road on both sides. Along the river valley, irrigation plants produced lush fields of crops and green pastureland; across the road, in stark contrast, penned ostriches grazed on the xi

Alexkor Ltd diamond mine.

sparse vegetation. When the tarred road became an unpaved track, I knew we had left Alexkor property behind. At the remote, dirt-poor settlement of Sanddrif (one of the five villages involved in the land claim) a meeting of community leaders was already in progress. The Richtersveld community’s struggle to regain control over their traditional lands had been long and costly. Earlier that year, their case had been rejected by the Land Claims Court in Cape Town and now their hopes rested with the Appeal Court. If this also failed, their final resort would be to appeal to the Constitutional Court. Alexkor seemed to hold all the cards, but the community was not about to give up. They had no other choice.

My visit to the village of Sanddrif helped to crystallize the themes of this book and provided fresh insights into the motivation and strategies of indigenous peoples to regain control over their land and their lives. The plight of the Richtersveld community - and their determination to restore hope and dignity to their villages - epitomizes the experience of local inhabitants worldwide whose lands and resources have been taken over by European settlers (and now by large corporations) for their own use and profits. While hunger for land and human dignity is one of the most destructive and enduring consequences of European colonization, it has also become the catalyst for cultural renewal and political change.

The research for this project has progressed through several phases of my life. In the 1960s, as an undergraduate student at the University xii A COMMON HUNGER

Ostrich farm near Alexander Bay, Northern Cape.

of South Africa (UNISA) I learned about South Africa’s history from the perspective of its white population. In the 1980s, having emigrated to Canada, I became involved in the work of International Defence and Aid Fund for Southern Africa (Canada). Part of my role in this organization was to research and help to disseminate information about the violation of human rights under the apartheid regime.” In the 1990s, my interest in aboriginal justice expanded to Canada’s treatment of its indigenous peoples. The parallels and differences between South Africa and Canada with respect to aboriginal rights became the topic of my M.A. thesis at the University of Ottawa in 1993: Is This Apartheid? Aboriginal Reserves and Self-Government in Canada, 1960-1982. The final phase of my research for this book came in the late 1990s when I returned to South Africa to work as an archivist at the Mayibuye Centre for History and Culture in South Africa at the University of the Western Cape near Cape Town. Most of the primary sources on early European settlement were found in the National Archives of Canada (now Library and Archives Canada), the Cape Archives and State Library in Cape Town, the South African National Archives in Pretoria and the State Library of Victoria in Melbourne. The chapters on land claims and the legacies of injustice in Canada are based on documentation in the Law and Medical Libraries at the University of Ottawa and in the reading room of the Inuit Tapirisat of Canada in Ottawa. Publications produced by the Department of Land Affairs and the Land Claims Commission, the Surplus People Project, the

Preface xiii

Legal Resource Centre and the Program for Land and Agrarian Studies (pLAAS) at the University of the Western Cape provided essential background on land claims in South Africa.

A variety of secondary sources relating to Canada and South Africa as well as Australia and New Zealand were consulted, some recently published, others dating from the nineteenth century. Books, conference papers and journal articles on aboriginal rights, and the complex legal and constitutional constraints on aboriginal justice, were of vital assistance in the preparation of this manuscript. Of particular relevance to this study were publications that have come out of South Africa in recent years, including critiques of South Africa’s Truth and Reconciliation Commission by African theologians and academics.

This analysis of land rights in Canada and South Africa is divided into three parts: Dispossession, Reclaiming the Land and Dealing with Legacies. A brief discussion of land rights in Australia and New Zealand is provided in the Appendix.

Part One covers a broad sweep of history from the arrival of Europeans on the shores of North America and southern Africa in the sixteenth century to the present. This four-hundred-year overview is provided on three levels: human, legal and political. Chapter One traces the human interaction between aboriginal and non-aboriginal peoples from first contact to early European settlement. These are the defining stories of wars, epidemics, enslavement, exploitation and, above all, territorial dispossession whose legacies are being challenged by present generations of first Canadians and South Africans. Chapters Two and Three present an analysis of the legal and political foundations of aboriginal-state relations in Canada and South Africa and the struggle of the indigenous peoples for sovereignty and constitutional rights. Central to the discussion are contrasting histories of treaties, reserves, civil rights and policies of segregation and assimilation.

Part Two examines the ways in which indigenous communities are reclaiming control over their ancestral lands and the wealth-producing resources they contain. In Chapters Four and Five, a selection of case histories illustrates the extent to which litigation and negotiated settlements have restored dignity and a measure of prosperity to indigenous communities. Chapter Six focuses on issues of self-government and land tenure as they relate to Canada’s First Nations and to South Africa's former bantustans.

The broader issues relating to land justice and the legacies of colonialism and apartheid in Canada and South Africa are discussed in Part Three. Chapter Seven is about the poverty and loss of human dignity xiv A COMMON HUNGER associated with land loss and why land rights are critical in restoring hope and healing to landless communities. The final chapter draws comparisons between South Africa’s Truth and Reconciliation Commission (TRC) process and Canada’s Royal Commission on Aboriginal Peoples (RCAP), both of which took place during the 1990s. As instruments of restitution, neither commission can claim any notable success: meaningful reconciliation requires changes in state policies that address the ongoing hunger for land and dignity in aboriginal communities.

The choice of terms for the peoples of Canada and South Africa requires some explanation. The indigenous peoples of both countries are referred to generically as “first peoples” or “aboriginal peoples.” Although “Indian” - the name erroneously given to the local people of the Americas - is controversial (and easily confused with South Africans of Indian origin), it is used here to refer to members of registered bands who are governed under Canada’s Indian Act. These groups are also referred to as First Nations, a term that has come into use since the 1970s. The adjective “native,” favoured by North American Indians, is used sparingly in this comparative study because of its highly negative connotations in South Africa. “African” is used as both a noun and an adjective, and refers to South Africa’s indigenous Bantu-speaking inhabitants. The term “black” is also used in reference to Africans but appears most often as a collective term for Africans, Euro-Africans (classified as “Coloureds” by white governments) and South Africans of Indian descent, who shared a common experience of oppression under white supremacist governments.

Canadians and South Africans of European descent are generally referred to as “white” or “non-aboriginal” The term “Afrikaner” refers to white South Africans whose home language is Afrikaans. In the eighteenth and nineteenth centuries, these descendants of Dutch, German and French immigrants were referred to as “Boers” (Dutch for farmer) or as “Trekboers” (frontier farmers) or “Voortrekkers” (meaning pioneers or those who travel ahead).

Preface xv

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LIST OF ILLUSTRATIONS

Alexkor Ltd diamond mine near Alexander Bay, Northern Cape. © xii

Ostrich farm near Alexander Bay, Northern Cape. © xiii

Clearcut forests, Moresby Island, Queen Charlottes, British Columbia. © 11

Totem poles at the University of British Columbias Museum of Anthropology, Vancouver, British Columbia. © 12

Haida totem pole at Old Masset, Queen Charlotte Islands, British Columbia. © 13

The Right Reverend Stan McKay, Moderator of the United Church of Canada (1992-94). © 16

Mural at Bartolomeu Dias Museum in Mossel Bay, Cape. © 22

Rock paintings, Giant’s Castle (Drakensberg), KwaZulu-Natal. © 26

“Passage by Sail” plaque, near Campbell River, Vancouver Island, British Columbia. © 29

Fishing village on west coast of Newfoundland (2004). © 31

Treaty No. 5, Penetanguishene Area, Upper Canada, 22 May 1798. © 37

XX A COMMON HUNGER

LIST OF MAPS

South Africa’s Former Bantustans. © xvi South Africa’s Provinces, 1994. © xvii Canada’s Major Claim Areas. © xviii Canada’s Provinces. © xix

KRW pe

ACKNOWLEDGEMENTS

I am grateful for this opportunity to recognize and thank all those who contributed in special ways to this book. My mentors were the friends and colleagues who shared their knowledge and passion with me: Cornelius Jaenen, Olive Dickason, Poppie Rabalao, Al Cook, Peter Carstens, Peter Colenbrander and Rodney Davenport. Others who inspired and assisted me in various ways along the journey were: Margaret Back, Bob Acton, Douglas and Mary Anglin, Patricia Kennedy, Dariusz Ciach and Wilma MacDonald in Ottawa; Mary Miliano and Peter and Christine Fensham in Australia; Jenny Bean and Kirstin Brown in New Zealand; and François and Molly Bill, Jacob Tshabangu, Kamseela Govender, Henk Smith and Willem Louw in South Africa. Thanks as well to Nancy Mucklow in Kingston for her skillful editing and beliefin the importance of this book.

My family and friends, who have shown their support in many different ways, made this project possible. I want to thank my husband, Ian Fairweather especially for his constant support and valuable assistance. My final word of appreciation goes to Jean Wilson, who took an interest in this book from its inception and is truly its “godmother”

A COMMON HUNGER xxi

CANADA AND SOUTH AFRICA

The indigenous peoples of Canada and South Africa share a common hunger for land and human dignity due to their experiences of colonization and dispossession. However, comparing the history of land rights in these countries presented a number of challenges.

Geographically and demographically Canada and South Africa could not be further apart. Canada is a northern country — the second largest in the world - blessed with many waterways, forests, mountains and vast open spaces. The majority of Canada’s population of just over thirtyone million is primarily of European descent (mainly British or French) with the aboriginal peoples (Indian, Inuit and Métis) forming about 4 per cent of its total population. By contrast, South Africa, the most southerly country on the African continent, is not much bigger than the province of Ontario.’ Although it is rich in minerals (notably gold and diamonds), South Africa is limited in critical resources like arable farmland and water, vital to support its population of forty-four million people. Unlike Canada where the aboriginal population is a tiny minority, the vast majority of South Africas population is African. In 1996, the size of the various population groups was recorded as follows: 33.7 million Africans, 5.3 million white South Africans, 3.7 million Euro-Africans and one million people of Asian descent.”

The political histories of Canada and South Africa are also very different. Colonized in the seventeenth and eighteenth centuries by France and Britain, the Confederation of Canada was established in 1867 comprising four provinces: Ontario, Quebec, New Brunswick and Nova Scotia.’ Over the following decades, the country expanded from east to west across the continent and today consists of ten provinces and three territories. (Map 4, xix.) The province of Quebec, which is predominantly French-speaking, has had an active separatist movement since the 1970s. Although the Canadian Constitution was repatriated in 1982, Canada remains a member of the British Commonwealth. The Governor General is the official head of state, representing the British monarch.* Canada has two official languages: English and French. South Africa has developed along different lines. It was colonized by the Dutch and then the British in the seventeenth and eighteenth centuries. The Union of South Africa (established in 1910 from two British and two Boer colonies) had four provinces and two official languages: English and Afrikaans.” In 1961, South Africa became a republic, having already withdrawn its membership from the British Commonwealth. In 1994, after its first democratic elections, South Africa was invited to rejoin the Commonwealth. The country is now divided into nine provinces and has eleven official languages: English, Afrikaans and nine African languages.° (Map 2, xvii.)

The issue of indigenous land rights is complex and controversial in both countries. Even the term aboriginal (or indigenous) is problematic. Who, in fact, were the original occupants? Over the centuries, the continents of North America and southern Africa have been inhabited by successive waves of peoples. Wars and displacement of one group by another took place long before Europeans arrived. In this study, the term “indigenous peoples” refers to descendants of the original or pre-colonial inhabitants of a territory or geographic area who, despite the legal status imposed on them by the dominant society, retain some or all of their social, economic, cultural and political institutions.

For all their differences, South Africa and Canada have a number of things in common that relate to the issue of land rights. The indigenous peoples of Canada and South Africa comprise not one but many nations, each with their own languages, cultures, histories and ancestral territories. Among the fifty-two bands and nations claiming land rights in Canada are the Innu, Mi’kmaq and Maliseet in the Atlantic provinces, the Algonquin, Iroquois and Ojibway in eastern Canada, the Lubicon Cree, Blackfoot and Peigan nations in the Prairie provinces, the Inuit, James Bay Cree and Dene in the northern territories and the Nisga’a, Haida, Gitxsan and Wet’suweten on the west coast. (Map 3, xviii.) South Africans are similarly diverse in cultural origin. The major African or Bantu-speaking peoples of South Africa are the Zulu, Xhosa, Tswana, Pedi, Ndebele, Tsonga, Venda and Sotho nations. Other groups of indigenous South Africans include the Griqua, Nama (Khoikhoi) and San, most of whom have adopted Afrikaans as their mother tongue.

For all their diversity, the indigenous peoples of Canada and South Africa have similar reasons for reclaiming rights in their ancestral lands. Since the arrival of Europeans on their shores, the wealth of both countries (from mining, industry, farming and technology) has been exploited and monopolized by the non-indigenous, settler community. Although the traditional economies of Canada’s first nations and indigenous South Africans differ considerably, their means of production have historically been embedded in the land and the products of the land. Reclaiming control over the land and resources is therefore a question of economic and cultural survival for many indigenous communities. The poorer the community, the more vital their need for access to land and natural resources. Subsistence farming in South Africa and hunting and trapping in Canada are traditional ways to ward off hunger in times of need, but they require sufficient land and a protected environment to make them viable and fruitful.

In post-apartheid South Africa, the recognition of land rights is both a constitutional issue and a question of national security. The Constitution of 1996 assures every South African the right to own land. However, most of the land and its wealth-producing resources remain in the hands of the white minority, while the vast majority of people remain landless and poor. At the same time, the threat of civil war still hovers over this fragile democracy. In neighbouring Zimbabwe, conflict over land rights has escalated into anarchy. The African National Congress government has established mechanisms designed to avert such a catastrophe in South Africa. But for these mechanisms to succeed, the Land Claims Commission and Constitutional Court must ensure that land restitution takes place in a timely fashion.

In Canada, the recognition of aboriginal land rights has received little political attention thus far although the human rights of its indigenous peoples are at stake. While aboriginal Canadians represent a tiny minority of Canada’s population, their numbers are increasing, and social problems (poverty, health care, housing, education and unemployment) are also escalating. The social conditions of many aboriginal communities in Canada are a source of national shame and reveal a hypocrisy that is all too apparent to native Canadians who bear the brunt of anachronistic government policies. Political activism within aboriginal communities has intensified since the early 1970s. Canada’s First Nations, Inuit and Métis are now confronting governments and the courts with demands for compensation for the loss of land and culture and for recognition of inherent aboriginal rights.

ABORIGINAL RIGHTS AND INTERNATIONAL LAW

The history of indigenous land rights in southern Africa and North America began five hundred years ago. In the years following the first European forays into the New World in the fifteenth century, the legal authorities realized that special laws were needed to deal with the indigenous inhabitants of the colonies and the lands they occupied. More important still was the need to ensure that once European sovereignty had been proclaimed over an occupied territory, rival European states could not establish similar proprietary rights over the same territory. In other words, they required an internationally recognized law to ensure the undisturbed occupation of the lands and jurisdiction over the peoples of their colonies.

Yet a long period of lawlessness preceded the era of treaties and proclamations. The Spanish conquistadores of the fifteenth century followed no law except rapacious greed. Their campaigns of extermination against the Indians of Hispaniola left behind a legacy of dispossession and exploitation that plagues the region to this day. By 1496 (four years after Christopher Columbus landed on the Caribbean island of Taino, thinking he had arrived in India), the Spaniards were in complete control of the West Indies. Mexico, Peru and Cuba were soon to follow.

Following the practice of the day, the conquistadores claimed title to the New World in the name of the King of Spain and Christianity merely by planting a flag in the soil. Priests accompanying the soldiers would read the Requerimiento to the defeated tribes, demanding that they acknowledge their allegiance to the Spanish Crown and adopt the Christian faith. Failure to comply resulted in either death or forced labour. In 1510, the conquistadores introduced a forced labour system known as ecomienda. The Crown not only gave land to individual Spaniards (usually soldiers) but allotted them Indians to work the land for them. While the Indians were not officially enslaved, they received no wages, and their life was one of involuntary servitude. Thus, for many years the ecomienda model under the King of Spain was the only legal code governing the southern colonies.

In the sixteenth century, two Spanish advocates of aboriginal rights challenged the legitimacy of Spanish claims in the Americas. One was Bartolomé de Las Casas, a Dominican priest, and the other was Francisco de Vitoria, a theologian. Both men based their views on the classic concept of jus gentium (the equality of humankind) and its founding principle of natural law. Their publications and lectures, which became known as the Spanish School, laid the foundations for a more enlightened approach to colonization. However, both de Vitoria and Las Casas were men of their time and their arguments were laced with ambiguities. De Vitoria declared on the one hand that “Indians are rational beings and true owners of their lands and estates.” However he also proclaimed that the Spanish were entitled to retaliate if the Indians refused to trade with them - by declaring war, occupying their cities and enslaving them.

Las Casas also preached conflicting messages. He defended the right of Indians to resist Spanish aggression but also insisted on the Spanish right to Christianize Indians; indeed that this was their sacred mission to the New World. Thus, the dispossession continued and the system of forcing indigenous peoples to work for their colonizers became a model for European imperial powers throughout the next two centuries.

In most parts of the world, the mere act of “discovery” remained a justification for colonization for at least another century. In 1670, Canada’s northern region, known as Rupert’s Land, was declared the private property of a band of English adventurers, thereby beginning the imperial invasion of Canada. Inuit writer Zebedee Nungaq observes with some irony that, “by some sleight of hand, by some fluke [my ancestors] became tenants in our own ancestral homeland.” A century later, Australia and New Zealand were colonized under similar circumstances. In 1788, under the justification of first possession, the British government declared sovereignty over the land and people of Australia. New Zealand followed a few decades later. (See Appendix).

In the eighteenth and nineteenth centuries, as competition for new colonies intensified, international lawyers looked for new arguments to justify European settlement. The question of the moral and legal entitlement of colonizers to discovered territories was raised by eighteenth century Dutch jurist Hugo Grotius:

Discovery confers no rights unless the area was uninhabited. Indeed, the Indians, when first discovered by the Spanish ... were idol worshipers and wrapped in serious error. Nonetheless, they had full sovereignty, both over public and private property which was their natural right which could not be taken away. Thus it is heretical to believe that those outside the faith do not have full sovereignty over their possessions, for this reason: plunder is not excused by the fact that the plunderer is a Christian.*

New theories of law emerged in the latter part of the eighteenth century to replace the high-minded but largely unaccepted concepts of natural law. These new positivist theories provided a legal loophole for imperialism. Unlike natural law, which considered indigenous rights to be based on notions of human equality and Christian morality, positive law abandoned traditional codes of ethics altogether. Proponents of positive law argued that since indigenous populations pursued migratory lifestyles and did not occupy territory in any formal sense, they had no proprietary rights to their land. By portraying indigenous peoples as primitive and uncivilized, European states asserted that lands they occupied were res nullius, a term derived from Roman property law meaning without an owner.

‘The positivist argument was supported by United States Chief Justice John Marshall, one of the most influential legal minds of the time. In the case of Johnson v. McIntosh in 1823, Marshall declared:

Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them ... the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness.”

Sixty years later, positivist reasoning was used to justify the Partition of Africa. The Berlin Conference (1884-85), which defined the entire continent of Africa as no-man’s-land, allowed European nations (Britain, France, Belgium, Italy, Germany and Portugal) to stake out their claims to the entire continent, thereby denying Africans the right to their ancestral homes. In his Principles of International Law of 1895, T.J. Lawrence asserted that all territory “ not in the possession of states who are members of the family of nations, must be considered as terra nullius and therefore open to occupation???

In North American law, a distinction came to be made between the proprietary rights of so-called civilized inhabitants (settlers) and the aboriginal rights of the indigenous inhabitants. The historical rationale for the distinction can be explained as a combination of expediency and paternalism. In the first place, the distinction was designed to prevent conflict with rival European nations competing for possession of the American continent. But there was also a marked degree of paternalism about the requirement that Indian lands could only be alienated by order of the Crown. As Marshall explained in his 1823 judgment, although the rights of the original inhabitants were not lawfully extinguished under this arrangement, they were certainly severely restricted:

[Indians] were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it to their own discretion, but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it."

Among the cultural baggage the Europeans brought with them to North America, Africa and other colonies was an ingrained belief in their race’s superiority, which may explain how ordinary men and women could have gone about the task of dispossession and even genocide without apparently questioning the morality of their actions. Alexander Sutherland, a nineteenth-century historian, saw the killing of indigenous peoples not as an ethical issue but as part of a divine plan:

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A Common Hunger

About this book

Front matter

Part Two © Reclaiming the Land [4] © LITIGATION

Part Three [7] ©

Preface

The end

A Common Hunger

About this book

Front matter

Part Two © Reclaiming the Land [4] © LITIGATION

Part Three [7] ©

Preface

The end

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