Carbon dioxide is being accumulated in the atmosphere at the fastest rate since records began, as scientists warn that the oceans and forests may have absorbed so much CO2 that their crucial function as “carbon sinks” is now severely threatened.
The jump in atmospheric CO2 is partly the result of rising carbon emissions as the world burns ever-more fossil fuels, according to the latest World Meteorological Organisation report, which finds the concentration of carbon increased by nearly three parts per million (ppm) to 396ppm last year.
But, crucially, preliminary data in the report indicates that the jump could also be attributed to “reduced CO2 uptake by the Earth’s biosphere” – the first time the effectiveness of the world’s great carbon sinks has been scientifically called into question.
Scientists said they were puzzled and extremely concerned by prospect of reduced absorption of the world’s oceans and plants, which they cannot explain and which threatens to accelerate the build-up of heat-trapping greenhouse gases in the atmosphere if the trend continues.
“That carbon dioxide concentrations continued to surge upwards last year is worrying news,” said Professor Dave Reay, of the University of Edinburgh.
“Of particular concern is the indication that carbon storage in the world’s forests and oceans may be faltering. So far these ‘carbon sinks’ have been locking away almost half of all the carbon dioxide we emit,” Professor Reay added.
“If they begin to fail in the face of further warming then our chances of avoiding dangerous climate change become very slim indeed.”
The plants and the oceans each typically absorb about a quarter of humanity’s CO2 emissions every year, with the other half going into the atmosphere, where it can remain for hundreds of years.
The last time there was a reduction in the biosphere’s ability to absorb carbon was in 1998, a year in which extensive forest fires and dry weather killed off lots of plants, dealing a blow to the world’s carbon sink.
But Dr Oksana Tarasova, chief of the atmospheric research division at the WMO, said this time it is much more worrying because there have been no obvious impacts on the biosphere this year.
“This problem is very serious. It could be that the biosphere is already at its limit, or it may be close to reaching it. Or it may be that it just becomes less effective at absorbing carbon. But it’s still very concerning,” said Dr Tarasova.
The worst-case scenario in which the carbon sink ceased to function at all would double the rate at which CO2 emissions accumulate in the atmosphere, significantly increasing the fallout of climate change, such as storms, droughts and temperature increases, Dr Tarasova said.
The latest WMO survey packed a second environmental punch – revealing that the oceans are currently acidifying at a rate that is unprecedented in the past 300 million years.
This is because they are absorbing about 4kg of carbon dioxide for every person on the planet, the report says.
The WMO’s findings intensified calls for co-ordinated global action to limit global warming to 2C, beyond which its consequences become increasingly devastating.
“We are running out of time. Past, present and future CO2 emissions will have a cumulative impact on both global warming and ocean acidification. The law of physics are non-negotiable,” said the WMO’s secretary-general Michel Jarraud. He added that, rather than rising, fossil fuel and other emissions badly need to come down.
This film, by DGR member Max Wilbert, brings you the voices of climate scientists – in their own words.
Rising temperatures in the Arctic are contributing the melting sea ice, thawing permafrost, and destabilization of a system that has been called “Earth’s Air Conditioner”. Global warming is here and is impacting weather patterns, natural systems, and human life around the world – and the Arctic is central to these impacts.
Scientists featured in the film include:
Jennifer Francis, PhD. Atmospheric Sciences
Institute of Marine and Coastal Sciences, Rutgers University.
Ron Prinn, PhD. Chemistry
TEPCO Professor of Atmospheric Science, Massachusetts Institute of Technology.
Natalia Shakhova, PhD. Marine Geology
International Arctic Research Center, University of Alaska-Fairbanks.
Kevin Schaefer, PhD.
Research Scientist, National Snow and Ice Data Center.
Stephen J. Vavrus, PhD. Atmospheric Sciences
Center for Climatic Research, University of Wisconsin-Madison
Nikita Zimov, Northeast Science Station, Russian Academy of Sciences.
Jorien Vonk, PhD. Applied Environmental Sciences
Faculty of Geosciences, Utrecht University
Jeff Masters, PhD. Meteorology
Director, Weather Underground
Credit Addendums
At 16:15, the footage of methane venting from the seafloor was captured by Ocean Networks Canada / CSSF. It is venting from a place called “Bubbly Gulch” near one of their seafloor observatory nodes called Clayoquot Slope (a.k.a. ODP 889), located off the coast of Vancouver Island, not Oregon. The footage was captured in May 2010 at a depth of 1257 m. https://www.youtube.com/watch?v=sEHFit_5l-Y
Open Sesame examines the importance of seeds to humans as the genesis of nearly all our domesticated foods. It details the tremendous loss in varietal diversity of our crops over the last century, due in large part to increasing corporate control over the seed market.
Farmers and gardeners in every region once had access to dozens of varieties of each vegetable and staple crop, finely adapted to the specific growing season, temperatures, rainfall patterns, insects, diseases, and soils of their area. With few people now saving their own seed, we’ve entrusted our food supply to a handful of seed companies selling the same handful of varieties to growers across the US. This will prove increasingly problematic as climate chaos increases divergence from climatic norms. We need a return to seed saving and breeding of numerous local varieties, each starting from a baseline adaptation to the specific conditions of each area. Diversity gives a better chance of avoiding complete catastrophic crop failure; this variety may yield in the heavy rains of one year, while that variety may succeed in the drought of the next.
The film shows beautiful time lapse sequences of seeds sprouting and shooting into new life. Even rarer, it shows people feeling very emotional about seeds, displaying extra-human connections we normally only see with domesticated pets, and hinting at the human responsibility of respectful relationship with all beings described by so many indigenous people. The movie highlights great projects from seed schools and the Seed Broadcast truck educating people on why and how to save seed, to William Woys Weaver and others within Seed Savers Exchange doing the on-the-ground work of saving varieties from extinction, to Hudson Valley Seed Library trying to create a viable business as a local organic seed company.
Civilization and Agriculture
Unfortunately, Open Sesame has an extremely narrow focus. Though it rightly brings up the issue of staple crops, which many people ignore in their focus on vegetables, it trumpets our dependence on grains, even showing factory farmed cattle, pigs, and chickens in an uncritical light. This assumption that humans need annual crops reveals an ignorance of agriculture itself as a root cause of our converging environmental crises. Even before industrialism accelerated the destruction and oppression, civilization and its cities, fed by organic agriculture, was eroding soil, silting up waterways, turning forests into deserts, and instituting slavery and warfare. Though the diminished diversity within our food crops should indeed cause concern, the far greater biodiversity loss of mass species extinctions under organic agriculture should spark great alarm, if not outright panic.
In one scene, the documentary shows a nighttime urban view of industrial vehicles and electric lights, bringing to mind the planetary destruction enacted by the creation and operation of these technologies. Beneath the surface, this scene contains further social and imperialistic implications of packing humans into artificial and barren environments. The residents of this scene are fully reliant on imported food and other resources, often stolen directly, and all grown or mined from land stolen from its original human and non-human inhabitants. But the film goes on to point out, without any irony, that all civilizations began with humans planting seeds, as if the only problem we face now is that industrialization and corporate control applied to agriculture threaten the stability of otherwise beneficial systems.
In a similar disconnect, Open Sesame proclaims the wonders of gardening, farming, and “being in nature” while showing simplified ecosystem after simplified ecosystem ― annual gardens and fields with trees present only in the background, if at all. As any student of permaculture or of nature could tell you, the disturbed soil shown in these human constructions is antithetical to soil building, biodiversity, and sustainability. The film describes seeds “needing” our love and nurturing to grow, positioning us as stewards and playing dangerously into the dominating myth of human supremacism. Such dependence may (or may not) be true of many of our domesticated crops and animals, but I think it crucial to explicitly recognize that in indigenous cultures, humans are just one of many equal species living in mutual dependence.
Though the documentary chose not to tackle those big-picture issues, it still could have included perennial polycultures, groups of long-lived plants and animals living and interacting together in support of their community. For 99% of our existence, humans met our needs primarily from perennial polycultures, the only method proven to be sustainable. The film could have chosen from hundreds of modern examples of production of vegetables, fruit, and staple foods from perennial vegetable gardens, food forests, and grazing operations using rotating paddocks. Even simplified systems of orchards and nutteries would have shown some diversity in food production options. Besides being inherently more sustainable in building topsoil and creating habitat, such systems rely much less on seed companies and help subvert their control.
Liberal vs Radical
The Deep Green Resistance Youtube Channel has an excellent comparison of Liberal vs Radical ways of analyzing and addressing problems. In short, liberalism focuses on individual mindsets and changing individual attitudes, and thus prioritizes education for achieving social change. Radicalism recognizes that some classes wield more power than others and directly benefit from the oppressions and problems of civilization. Radicalism holds these are not “mistakes” out of which people can be educated; we need to confront and dismantle systems of power, and redistribute that power. Both approaches are necessary: we need to stop the ability of the powerful to destroy the planet, and simultaneously to repair and rebuild local systems. But as a radical environmentalist, I found the exclusively liberal focus of Open Sesame disappointing. There’s nothing inherently wrong with its take on seed sovereignty; the film is good for what it is; and I’m in no way criticizing the interviewees doing such great and important work around seed saving and education. But there are already so many liberal analyses and proposed solutions in the environmental realm that this film’s treatment doesn’t really add anything new to the discussion.
A huge challenge I have with liberal environmentalism is its leap of logic in getting from here (a world in crisis) to there (a truly sustainable planet, with more topsoil and biodiversity every year than the year before.) Open Sesame is no exception: it has interview after interview of individuals carrying out individual actions: valuable, but necessarily limited. Gary Nabham speaks with relief on a few crop varieties saved from extinction by heroic individual effort, but no reflection is made on the reality of how much we’ve lost and the inadequacy of this individualist response. We see scene after scene of education efforts, especially of children. We’re left with a vague hope that more and more people will save their own seed, eventually leading to a majority reclaiming control over their plantings while the powerful agribusiness corporations just fade away. This ignores the institutional blocks deliberately put in place precisely by those powerful companies.
The only direct confrontation shown is a defensive lawsuit begging that Monsanto not be allowed to sue farmers whose crops are contaminated by patented GMOs from nearby fields. The lawsuit isn’t even successful, and the defeated farmers and activists are shown weary and dejected, but with a fuzzy determination that they can win justice if they keep trying hard enough. The film could instead have built on this example of the institutionalized power we’re up against and explored more radical approaches to force change. Still within the legal realm, CELDF (Community Environmental Legal Defense Fund) helps communities draft and pass ordinances banning things like factory farming, removing corporate personhood, and giving legal rights to nature within a municipality or county. Under such an ordinance, humans could initiate a lawsuit against agricultural operations leaching chemicals and sediment, on behalf of an impacted river. This radical redistribution of decision making directly confronts those in power and denies them the right to use it against the community and the land.
In the non-legal realm, underground direct attacks and aboveground nonviolent civil disobedience have successfully set back operations when people have cut down GMO papayas, burned GMO sugar beets, and sabotaged multiple fields and vineyards. The ultimate effectiveness of these attacks deserves a whole discussion in and of itself, but they would have been worth mentioning as one possible tactic for ending agribusiness domination of our food supplies.
In a perfect demonstration of the magical thinking that wanting something badly enough will make it happen, the documentary concludes with a succession of people chanting “Open sesame!” We’ve had 50 years of experience with this sort of environmentalism, long enough to know it’s not working. We also know that we, and the planet, have no time left to waste. We need to be strategic and smart in our opposition to perpetrators of destruction and in our healing of the damage already done. The Decisive Ecological Warfare strategy of Deep Green Resistance offers a possible plan for success, incorporating all kinds of people with all kinds of skills in all kinds of roles. If you care about the world and want to change where we’re headed, please read it, reflect on it, and get involved in whatever way makes the most sense for you.
We need to be clear about what is going on in Ferguson, Missouri.
Let’s pretend, just for a moment, that your people were stolen from their ancestral homes and stacked like lumber in the hulls of filthy ships to be sold half a world away. Millions of your people drowned in their own piss, shit, and vomit on these ships, were murdered when they resisted those stealing them, or threw themselves to the sharks when finally seeing the light of day on the ships’ decks. Your people’s reward for surviving the nightmare of the slaving ships was the nightmare of being sold into slavery.
Let’s pretend, just for a moment, that as slaves your peoples were subjected to psychological, spiritual, and physical tortures to ensure their complicity in the slave system. When a slave refused to comply he or she was whipped, starved, placed in collars, or even killed. If a slave escaped, the nation’s first police forces were established to hunt the slave down and return the slave to the nightmare. If your people organized into true resistance, taking up arms to defend themselves from the horrors of slavery, the nation’s first police forces – comprised of white men – arrived to brutally put down the resistance executing every slave involved.
Let’s pretend, just for a moment, that the justification for your enslavement was something as arbitrary as your skin color. Europeans with white skin spend centuries telling your people, Africans with black skin, that you are less than human. After over three centuries of slavery, some white people decide that your people should no longer be enslaved. Another group of white people deny your people’s right to freedom and the nation’s bloodiest war is fought over your freedom. 620,000 soldiers die to decide your fate.
Let’s pretend, just for a moment, that white people are angry about the war fought on your people’s behalf, are angry about your newfound freedoms, are just plain angry and looking to take it out on someone. For the next hundred years, your people are routinely lynched, shot, beaten, and raped for perceived slights to these white people. A system develops, called Jim Crow, where white people decide that just because slavery is ended it does not mean white people have to share space with your people.
Let’s pretend, just for a moment, that your people produce leaders that undermine the Jim Crow system. Some preach a peaceful approach to empowering your people. Those leaders are assassinated. Some preach an approach that includes every available tactic. Those leaders are assassinated, too.
What if we didn’t have to pretend? What if this was your reality? What if, when you looked into your ancestral past, you were met with pictures of the crisscrossing puffy scars of flogged backs? What if, when you thought of the way your people arrived on this continent, you could only think of those slave logs that demonstrated the way to maximize “cargo space” by the most effective means of stacking human bodies? What if, when you noticed the lightness in your skin color, you could not help but wonder if one of your ancestors was raped by a white man?
What if we didn’t have to pretend?
We all know the truth. We do not have to pretend. A black man is killed every 28 hours by police or vigilantes in this country. [1] There are more black men in prison right now than there were enslaved in 1850. [2] The life expectancy for African-Americans is four years shorter than white Americans.
Now, what if another young black man in your community was killed by a white cop? What if you wanted to know the name of the cop who shot him? What if they wouldn’t tell you? What if you were so heart-broken, so angry, that you demanded justice and the cops responded by pointing machine guns at you? What would you do?
***
Make no mistake, police forces exist as the domestic arm of occupying colonial governments. Stanley Diamond, the brilliant anthropologist, wrote, “Civilization originates in conquest abroad and repression at home.” This analysis helps us to understand that police forces do not exist to protect oppressed classes. It should be obvious as we see the white men pointing machine guns at black demonstrators in Ferguson that police forces exist to ensure the oppression of oppressed classes.
In order to understand what is going on in Ferguson, we must get to the roots of the problem. The problem is civilization. I define civilization as groups of humans living in concentrations large enough to require the importation of so-called natural resources for survival. When groups of humans require the importation of resources for survival, they will do whatever it takes to acquire those resources. Eventually, as Diamond’s quote illustrates, civilized groups will develop armies of conquest to ensure access to the resources required. Civilized groups will also develop domestic armies – police forces – to ensure that domestic labor follows the will of those in power.
This was true for the earliest examples of civilization like the ancient Sumerians who developed a system of slavery for ensuring labor for necessary irrigation and the ancient Romans who simply could not maintain control over the flow of resources they required for their empire before it collapsed. This is true for the United States today with conquering armies demonstrating power through violence in oil-rich countries to ensure access to fossil fuels and police forces terrorizing domestic citizens to ensure the established social order.
It is my view that other systems of domination that developed later are essentially expressions of civilization. European colonization of the rest of the world became necessary as resources in Europe dwindled. The current model of racism, prevalent in the United States today, was developed to ensure the labor force civilization depended on to avoid collapse. Racism, of course, must be eradicated to keep a black man from being murdered by the state’s domestic army every 28 hours, but racism is best understood in material terms. It follows, then, that the roots of racism exist in the material necessities of civilization. Undo civilization, and the civilized addiction to other’s resources – and the racism supporting the addiction – will collapse.
This is not to say, however, that bigotry and hate will not persist after the collapse of civilization. As civilization collapses, we will see intensified violence visited upon communities of color. This is why it is absolutely essential that members of privileged classes assert their solidarity with communities of color right now. The sooner we come to the support of targeted communities like Ferguson, the stronger those communities will be as they face the escalation of violence.
***
I woke up this morning to a plea from the American Civil Liberties Union to sign their petition titled “Our Communities Are Not Warzones.” The petition asks the Department of Defense, Homeland Security, and Justice to “stop funding the siege on communities of color.”
Whether we like it or not, our communities ARE war zones. How else do we account for a black man being killed by cops and vigilantes every 28 hours? How else do we account for more black men in prison than were enslaved in 1850? How else do we account for the fact that one in four American women will be raped in her lifetime? How else do we account for the fact that in America a solid percentage of rape perpetrators are cops? How else do we account for 100 – 200 species a day going extinct? How else do we account for carcinogens in every mother’s breast milk? How else do we account for the 250 trees – with lives as valuable to them as your life is valuable to you – cut down around the world a second?
Our communities ARE war zones. It is only through great privilege that we are allowed to think that they are not. I support every effort to undermine the power of the police, but we cannot downplay the severity of what is going on. This plays right back into the hands of our oppressors and entrenches the violence being delivered upon us by hiding it.
The ACLU wants to send a signed piece of paper asking those in power to stop providing weapons and equipment to police forces. There is only one way to make sure police forces stop getting these weapons and equipment, and that is to physically stop their access to these weapons.
I am not in Ferguson. I am not privy to conversations in the resistance community there. I cannot say what is best for oppressed peoples.
I support a wide-variety of tactics they may decide are necessary for justice in their communities. I refuse to participate in the current efforts to shout down the righteous anger or condemn angry actions by members of the oppressed African community in Ferguson. I am not arguing for specific tactics, but I do want to break open a space to discuss every tool in the toolbox. If peaceful civil disobedience is the way to go, great. If more militant actions are needed, I stand ready to support. This is a war, after all.
Time is Short: Reports, Reflections & Analysis on Underground Resistance is a bulletin dedicated to promoting and normalizing underground resistance, as well as dissecting and studying its forms and implementation, including essays and articles about underground resistance, surveys of current and historical resistance movements, militant theory and praxis, strategic analysis, and more. We welcome you to contact us with comments, questions, or other ideas at undergroundpromotion@deepgreenresistance.org
As Indigenous peoples, working for justice for #MMIW is a process that starts within our own communities. The launch of this website is one example of the resurgence of community documentation as justice.
In April of 2013, No More Silence, Families of Sisters in Spirit and the Native Youth Sexual Health Network began what has become a long term vision for a community-led database documenting the violent deaths and disappearances of Indigenous women. It is our collective hope that the lives of Indigenous Two Spirit, lesbian, gay, bisexual, transgender, transsexual, queer, questioning, intersex, and asexual (LGBTTQQIA) will also be recognized as gender based violence also impacts these communities and is often invisibilized.
FSIS, community partner on this initiative indicated that they “support a grassroots led community database because Indigenous people are first and foremost the experts in gathering data and information about missing and murdered Indigenous women”. The launch of this website is an outcome from many community conversations with impacted families and individuals affected by colonial gender based violence.
1 year later and still no justice…The purpose of the database is to our honour women and provide family members with a way to document their loved ones passing. As the one year anniversary of Bella Laboucan-Mclean’s death approaches the family has provided the first of many tribute pieces on the website, available to read at: www.ItStartsWithUs-MMIW.com/bella
According to Melina Laboucan-Massimo, “Our family still does not have answers from the Toronto Police about Bella’s death which is still listed as suspicious. We appeal to anyone with information to come forward with answers. We urge the Toronto Police to investigate her death as if Bella were part of their own family and not just another police statistic. This new website and database gives families like ours the ability to not only document the lives of our loved ones but also commemorate and celebrate their lives and achievements.”
As the search for answers persists, we continue to urge the Toronto Police Service to maintain their focus on the details surrounding Bella’s death as the family and larger community follow this case closely. We are honoured to have Bella’s story be the first tribute that is shared on the website as a way of recognizing her life and spirit.
We also call attention to Sonya Cywink, murdered in London, ON who’s family and community are preparing a memorial on the 20th anniversary of her passing and are also holding out hope that one day they will uncover the mystery surrounding her murder.
Krysta Williams of the Native Youth Sexual Health Network and community partner, “We know there are many other stories, families and anniversaries, this is just the beginning. We continue to build capacity within our networks to respond and support.”
No More Silence Media Contact:
Audrey Huntley
Phone:647-981-2918 Email: audreyhuntley@gmail.com
Bella’s Family Media Contact:
Melina Laboucan-Massimo
Phone:780-504-5567 Email: miyowapan@gmail.com
Native Youth Sexual Health Network Media Contact:
Erin Konsmo, Media Arts Justice and Projects Coordinator
Email:ekonsmo@nativeyouthsexualhealth.com
There’s a common joke I’ve heard many indigenous people tell. It goes like this: “What did indigenous peoples call this land before Europeans arrived? OURS.”
This joke – or truth – reflects many of the problems inhering to the Supreme Court of Canada’s recent ruling in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. From my radical view, the Tsilhqot’in decision leaves much to worry about. In this article, I examine the decision written by Chief Justice Beverly McLachlin to show why the decision is not as helpful it would seem and I anticipate how the government and corporations will bend the decision to their goals.
For me, the term “radical” denotes going to the roots of the problem. First Nations are suffering under the yoke of colonialism. Colonialism is the problem. To undermine colonialism, we must understand the processes making colonialism possible. One of the most powerful institutions perpetuating colonialism is the Canadian government and the Canadian court system as a branch of the Canadian government. It is my view that – for now – we must read the Tsilhqot’in decision not so much as a victory, but as another step down the long road of insidious colonialism.
First, there’s the general and underlying defeat that comes with the fact that colonialism has been so dominant in Canada that First Nations must submit to decisions made by Canadian courts. My second problem with the decision involves facing that there can be no true ownership of land when a dominated people must ask the courts of their conquerors for validation of their right to their own homelands. Placing the burden on First Nations to prove their land claims is another act of arbitrary power that works against cultural survival. Finally, I am deeply anxious about how clearly the Court spells out just what kind of governmental projects would be the type that the Court would sign off on. These projects include mining, forestry, agriculture, and the “general economic development of the interior of British Columbia.”
What Appealing to the Legal System Means
When celebrating what we view as a “good” decision by an imperial court it is easy to forget that the goal is to dismantle the power that gives the court its authority. We must not begin to view the so-called justice system as something like a benevolent paternal figure to appeal to when big-bad corporations come to destroy the land.
We must never forget that there will never be true justice in the courts of the oppressors because the courts of the oppressors are designed to protect the oppressors. Private property laws are the perfect example of this. What happens if you’re starving, walk into Walmart, take a loaf of bread, and are caught? You will be charged with transgressing property laws, dragged into court, and punished by the court for your transgression. Walmart’s right to a loaf of bread trumps your right to eat.
What does it mean, for example, that the Tsilhqot’in had to ask the courts to give them a right to land that they have lived on for thousands of years? Can a people ever truly own their land if they have to ask an occupying court to recognize their claims to land? The court protected the Tsilhqot’in after twenty-five years of deliberation, but what happens to the next aboriginal group that appeals to the courts and loses?
How is Aboriginal Title Established?
First, the Court lays out the process for establishing Aboriginal title. The burden falls on the Aboriginal group claiming title to prove its title. This means that a First Nation existing on its land for thousands of years must pay lawyers and subject its people to the stress of a legal proceeding – in courts established by settlers with access to First Nations land through centuries of genocide – to prove that the land is, in fact, theirs.
Aboriginal title is based on an Aboriginal group’s occupation of a certain tract of land prior to assertion of European sovereignty. A group claiming Aboriginal title must prove three characteristics about their occupation of a certain tract of land. First, they must prove their occupation is sufficient. Second, they must prove their occupation was continuous. Third, they must prove exclusive historic occupation. (¶ 50)
Proving Sufficient Occupation
To prove sufficiency of occupation, an Aboriginal group must demonstrate that they occupied the land in question from both an Aboriginal perspective and a common law perspective.
The Aboriginal perspective “focuses on law, practices, customs, and traditions of the group” claiming title. In considering this perspective for the purpose of Aboriginal title, the court “must take into account the group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed.” (¶ 35)
The common law perspective comes from the European tradition of property law and requires Aboriginal groups to prove they possessed and controlled the lands in question. As the Court explains, “At common law, possession extends beyond sites that are physically occupied, like a house, to surrounding lands that are used and over which effective control is exercised.” (¶ 36)
Simply put, proving sufficiency of occupation requires that the group claiming Aboriginal title were involved with the land in question more deeply than just using it in passing.
Proving Continuity of Occupation
Proving a continuity of occupation “simply means that for evidence of present occupation to establish an inference of pre-sovereignty occupation, the present occupation must be rooted in pre-sovereignty times.” So, the group claiming Aboriginal title must provide evidence that they were on the land in question in pre-sovereignty times. (¶ 46)
Exclusivity of Occupation
The last of the three general requirements for establishing Aboriginal title burdens a group with proving they have had the intention and capacity to retain exclusive control over the lands in question. As with sufficiency of occupation, the exclusivity element requires that the court view the evidence from both the Aboriginal and common law perspectives. According to the Court, “Exclusivity can be established by proof that others were excluded from the land, or by proof that others were only allowed access to the land with the permission of the claimant group. The fact that permission was requested and granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land.” (¶ 48)
What Rights Does Aboriginal Title Confer?
This is one of the most important issues addressed by the Court in Tsilhqot’in – for what it says and what it does not say. The important thing to know here is that Aboriginal title does not provide Aboriginal groups with complete control of their own land. It may be common sense to assume that once an Aboriginal group gains Aboriginal title to their ancestral lands they are free to use their land how they see fit free of government interference. This simply is not true. And the Court is very clear to explain that this is not true.
According to the Court, “Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.” (¶73)
In the English common law, “fee simple” refers to the highest form of ownership of land. Traditional rights associated with “fee simple” are the ones mentioned in the quote above. As the Court explains, “Analogies to other forms of property ownership – for example, fee simple – may help us understand aspects of Aboriginal title. But they cannot dictate what it is and what it is not.” (¶72) The Court quotes Delgamuukw, “Aboriginal title is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts.”(¶72)
It is important to note, of course, that Aboriginal title does not actually give Aboriginal groups full ownership of their own land. Aboriginal title has some key restrictions.
The Court explains: Aboriginal title “is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. Some changes – even permanent changes – to the land may be possible. Whether a particular use is irreconcilable with the ability of succeeding generations from the land will be a matter to be determined when the issue arises.” (¶74)
So, once Aboriginal title is established, Aboriginal groups can only sell or give their land back to the Crown. On top of this, the Court creates open doors for future litigation with all the restrictions. Aboriginal groups will be subject to defending their decisions from accusations that they do not know how to manage their own lands for the benefit of future generations. Forcing Aboriginal groups to defend their actions in Canadian courts is a statement that the courts know how to manage Aboriginal lands better than Aboriginal peoples.
Finally, through Tsilhqot’in, Aboriginal title is subject to being over-ridden by governments and other groups on the basis of the broader public good – which often spells disaster for First Nations and natural communities.
Infringing on Aboriginal Title
Government and other groups may infringe on Aboriginal title – or use Aboriginal lands against the wishes of aboriginal peoples – on the basis of the broader public good if it “shows (1) that it discharged its duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective, and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group.” (¶ 77)
The Duty to Consult
The Court predicates the duty to consult on what it calls the “honour of the Crown” and says that the “reason d’etre” of the duty to consult is the “process of reconciling Aboriginal interests with the broader interests of society as a whole.” (¶77 and 82)
It sets up a sliding scale for adjudicating just how hard the government or other groups must try to consult Aboriginal groups. The duty to consult is strongest where Aboriginal title is proven and weaker where the title is unproven. The Court quotes the Haida decision, “In general, the level of consultation and accommodation required is proportionate to the strength of the claim and the seriousness of the adverse impact the contemplated governmental action would have on the claimed right. The required level of consultation and accommodation is greatest where title has been established.” (¶ 79)
Nowhere does the Court say that a government or other group must literally accommodate the wishes of Aboriginal groups. Yes, the government has a duty to consult. But, the government is not charged with an absolute duty to respect the wishes of an Aboriginal group with title to land the government wants. No never actually means no when the government is concerned.
Compelling and Substantial Objectives
The Court is very careful to articulate that there are compelling and substantial objectives that would justify infringement on Aboriginal title. Just like we saw with the duty to consult, the Court will view what objectives will justify infringement through a desire to reconcile Aboriginal interests with the broader interests of society as a whole.
On its surface, this sounds great, but then the Court quotes the Delgamuukw decision to illustrate just exactly what kinds of activities might qualify as a compelling and substantial objectives (when reading this list, keep in mind the kinds of projects we are fighting against right now): “The development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.” (¶ 83)
We have to recognize how dangerous this language is. Enbridge has long anticipated the language. You could pick any number of prominent quotes from Enbridge’s Northern Gateway website www.gatewayfacts.ca to see how Enbridge is already spinning rhetoric to match the Court’s Tsilhqot’in ruling.
Take this one, for example, under the heading, “A boost for our economy,” “Northern Gateway will bring significant and long-lasting fiscal and economic benefits. Economically, the project represents more than $300 billion in additional GDP over 30 years, to the benefit of Canadians from every province.”
Or this one under the heading “Building communities with well-paying jobs,” “The pipeline sector creates thousands of jobs across the country. In B.C. alone, Northern Gateway will help create 3,000 new construction jobs and 560 new long-term jobs. The $32 million per year earned in salaries will directly benefit the families and economies of these communities.”
This is exactly the type of governmental objective that the Court in Tsilhqot’in suggests is compelling and substantive enough to pass constitutional muster.
It is important to understand how easy it is to be misled by our desire for good news in the fight to defend the land and First Nations communities. While there are helpful aspects of the Tsilhqot’in ruling on Aboriginal title, the Court is a long way from giving First Nations total control over their own lands. It may be safer for land defenders to assume that nothing really has changed. Yes, Aboriginal title has been defined, but how meaningful is that title if governments and corporations can override title by pointing to the “general economic development of the interior of British Columbia”?
The Crown’s Fiduciary Duty
The final hurdle a government or other group must clear in infringing on Aboriginal title is proving that the proposed action is consistent with the Crown’s fiduciary duty to the Aboriginal group. This fiduciary duty supposedly requires the Crown to act solely in Aboriginal groups best interests. The problem, of course, is that it is the courts that decide what is in an Aboriginal groups best interest.
The Court explains that the Crown’s fiduciary duty impacts the infringement justification process in two ways. “First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations…This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.” (¶ 86)
The second way it impacts the infringement process is by imposing an obligation of proportionality into the justification process where the government’s proposed infringement must be rationally connected to the government’s stated goal, where the government’s proposed action must minimally impair Aboriginal title, and where the benefits the government expects to accrue from the proposed action are not outweighed by adverse effects on Aboriginal communities. (¶ 87)
Another glimpse at the Enbridge’s Northern Gateway website (http://www.gatewayfacts.ca/benefits/economic-benefits/) demonstrates how Enbridge anticipates the Court’s ruling. Under a heading titled “Aboriginal inclusion” the website reads, “First Nations and Metis communities were offered to become equity partners providing them a 10% stake in the project. With the $300 million in estimated employment and contracts, it adds up to $1 billion in total long-term benefits for Aboriginal communities.”
I do not think it is a stretch to expect that Canadian courts will rule that Aboriginal groups denying projects like the Northern Gateway are working contrary to their own best interests. But, this isn’t even really the point. The point is, for all the progressiveness we want the Tsilhqot’in decision to stand for, it still allows the courts to decide what the best interest of First Nations is and not First Nations themselves. The longer this system remains intact, the longer First Nations communities will be in danger.
