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If unceded, does law become unseated? | Stephen O’Neill

Tuesday, November 23, 2021 @ 9:50 AM | By Stephen O’Neill

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Stephen O'Neill
“We ask of you please to forward this our petition to the Department at Ottawa. The Chief and councillors assembled to consider our miseries, how we are prevented to fish, how we are put in prison for fishing. It was established by Treaty that here where we live only Indians should dwell, and that the fisheries should be our fisheries all round, this was agreed on Aug. 9th, 1836 by Sir. F. B. Head. Since that time, we never did make any other Agreement with the Government by which the Government could come in possession of what belonged to us, until this day we have never received anything for which we should cease to own what our forefathers owned of old.”  

Petition from Wiikwemkoong Unceded Territory dated July 9, 1894.

The writers of this historic petition were not lawyers or legal scholars. But in one short paragraph, the words woven together by the petition’s creators from Odawa Mnis (Manitoulin Island) summarize as well as any legal textbook or appellate judgment the import and effect of the Royal Proclamation of 1763, the Niagara Treaty of 1764 and the status of unceded Indigenous lands in Canada.

And the law’s response? Take two current examples still existing and unfolding in this country.

First, the long outstanding historical claim by members of the Wiikwemkoong Unceded Territory. The above petition finds its genesis in the Manitoulin Island (McDougall) Treaty of 1862. Wiikwemkoong did not sign or assent to this treaty, thus its description as an “Unceded Indian Reserve.”

Since Oct. 6, 1862, Wiikwemkoong has protested against this treaty, requested its cancellation, forwarded petitions to the Governor General, taken part in conflicts to protect its fishing grounds and fishing stations, forwarded letters to the superintendent of Indian Affairs and the minister of Indian Affairs and Northern Development and sent delegations to meet with government officials.

In the past 46 years, Wiikwemkoong has:

  • issued a Declaration on Aug. 7, 1975, reaffirming its sovereignty over its offshore islands;
  • submitted a legal claim to the government of Canada’s Specific Claims Branch, 1984;
  • issued and filed a statement of claim in the Ontario Superior Court of Justice, 1997; and
  • entered into formal negotiations with the Crown in 2006.

To date, a final settlement agreement has not been signed. Yet during all of the intervening historical years, Wiikwemkoong has continued to sustain a dispossession of, and a loss of use of its lands, waters and resources. It has also witnessed the amalgamation and creation of a new municipality over its objections. But still the slow, slow clock of justice continues to click, month by month, year by year and decade by decade, with a final resolution yet to take place.

The second example is the Wet’suwet’en and Gitxsan peoples and their unceded territories in British Columbia. Their legal claim to declarations of Aboriginal title and jurisdiction over their traditional territories was filed in British Columbia Supreme Court in 1984. The trial decision was released in 1990, after a trial consisting of 318 days of evidence and 56 days of closing arguments.

The trial decision in favour of the Crown was rejected in 1993 by the B.C. Court of Appeal. On further appeal, in 1997 Canada’s highest court ordered a new trial (Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010). In doing so, then Chief Justice Antonio Lamer wrote these oft-repeated words:

“By ordering a new trial, I do not necessarily encourage the parties to proceed to litigation and to settle their dispute through the courts. As was said in Sparrow … s.35(1) ‘provides a solid constitutional base upon which subsequent negotiations can take place ’ . … Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith.’’

And the law’s response? Thirty-seven years after entering the Canadian legal and justice system in good faith (1984) and honouring the processes of the court in pursuit of affirmations and declarations with respect to identified lands in B.C., a final trial or settlement of the outstanding legal claims with respect to land rights, title and jurisdiction has not been reached.

And as recently as Nov. 18 and 19, 2021, heavily armed and militarized RCMP officers have once again entered the unceded territory of the Wet’suwet’en people and forcibly arrested Elders, legal observers, media representatives, supporters and various citizens of the Wet’suwet’en Nation.

With respect to legal claims and actions in Ontario (and likely similar in other provinces), there is a civil proceeding rule known as General Principle. It states in part:

1.04(1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

I don’t buy that legal rule and slogan when the “civil proceeding” or legal claim relates to Indigenous lands and resources issues. I don’t accept that people of power within, and outside of the Canadian justice system truly take to heart that in these kinds of cases “justice delayed is justice denied.” All with the result that these important cases will lag unsettled or unresolved for decades and generations, while the rest of the world, including the legal world, passes by.

The hard unjust fact is that a chronic and insidious cancer of delay, both inside and outside the courts, infects Indigenous lands and resources cases, slowing their resolution to a crawl, or to never.

“Unceded” unseats the law’s ideals and promises of a just and timely resolution of these kinds of disputes. And when this happens, the rule of law, a fundamental principle of our Constitution, begins to unweave and its promise as a purposive ordering of social relations in Canada slowly but surely begins to become unbound.

“This is not reconciliation — this is not the way to do it.”

Dini ze Woos-Wet’suwet’en Unceded Territory — Nov. 19, 2021.

The Honourable Stephen O’Neill is retired from the Ontario Superior Court of Justice where he served as a judge from 1999 to 2015. Since 2016, he has been an associate with Nahwegahbow, Corbiere, Genoodmagejig, Lawyers.

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