Conclusion

WHY LAND RIGHTS MATTER

A common hunger for land and human dignity has compelled many indigenous communities worldwide to reclaim their territories, farms and hunting grounds and to demand an equitable share in the wealth-producing resources they contain. For the indigenous peoples of Canada and South Africa, the recognition of land rights represents the first step in their recovery from an abusive past which has stripped them of their basic means of livelihood and of their dignity as human beings. As the case studies in this book clearly demonstrate, land represents much more than economic commodities to be managed and exploited. As Joe Seremane, South Africa’s first land claims commissioner expressed it, “Land is a birthright. The umbilical cord between us and mother earth that tells us where we belong. Like the womb, earth is the source of life. When we die, we return to the earth. This is why land is important.”¹ When the issue of land rights are viewed from this perspective, it becomes clear that indigenous peoples are not asking for charity. Nor, as the Gitxsan and Wet’suwet’en chiefs in the Delgamuukw case argued, are they asking for some frozen rights from an historic icebox. They are asking for what they believe is rightly theirs – they are asking for justice.

There are many reasons why countries like Canada and South Africa should feel compelled to respond to their demands. Apart from Constitutional obligations to protect the human rights of all their citizens, there are practical reasons for providing mechanisms for land restitution. In Canada, there are recognized treaties between the state (or Colonial powers) and First Nations, that must be honoured. This is required by the justice system and rule of law under which Canada is governed. Secondly, although the aboriginal population is not very large, it is capable of arousing strong public opinion. Confrontations over land, such as those that occurred at Oka in 1990 and at Ipperwash Provincial Park five years later, are costly both in dollars and in public image. The federal government has a vested interest in preventing such outbursts of Indian anger from happening again.

The South African government has different reasons for addressing the issue of land rights. A century of white supremacist rule has created a situation of widespread poverty and hunger for land, affecting the vast majority of South Africa’s indigenous population. In February 1994, before the elections were even scheduled, 353 rural communities held a Land Conference to set out its demands for the new South Africa. The Preamble to the Land Charter that emerged from this conference begins with these words:

We, the marginalised people of South Africa, who are landless and land hungry declare our needs for all the world to know.

We are the people who have borne the brunt of apartheid, of forced removals from our homes, of poverty in the rural areas, of oppression on the farms and of starvation in the bantustans. We have suffered from migrant labour which has caused our family life to collapse. We have starved because of unemployment and low wages. We have seen our children stunted because of little food, no water, no sanitation. We have seen our land dry up and blow away in the wind, because we have been forced into smaller and smaller places.

We look forward to the birth of a new South Africa. But for us there will be nothing new until there is land and services and growth. These are the biggest difficulties facing our country in the future.

We will not sit back and watch the wealth build up in the cities, while on the edge of the cities, in the small towns and in the countryside, we continue to suffer and starve. These are our demands.²

This, then, is the driving force behind South Africa’s land policy: the overwhelming urgency to address the demands of thousands of landless people and to build a new country on the foundations of racial equality and human rights for all South Africans.

THE TASK OF NATION-BUILDING IN SOUTH AFRICA

In South Africa, the task of knitting together a society torn apart by decades of racial discrimination and conflict is being addressed on a number of fronts. Since his release from prison on 11 February 1990, Nelson Mandela has shown South Africans a new image of itself; the image of a non-racial, inclusive society. The foundation stone of the new South African democracy is racial inclusiveness. In one of his first public addresses at a rally in Durban, Mandela declared: “We are committed to building a single nation in our country. Our new nation will include blacks and whites, Zulus and Afrikaners, and speakers of every other language.”³

One of Mandela’s most important gifts to South Africa – and indeed to the world – is his wonderful knack of walking through the invisible barriers that continue to divide South African society. At a 2002 centennial celebration of the Anglo-Boer War (1899–1902) in South Africa, Mandela astonished the entire country by attending a wreath-laying ceremony commemorating Danie Theron, a Boer scout who had been killed in the war, at the Voortrekker Monument in Pretoria. Instead of seeing Theron as a member of the “other side,” as an Afrikaner and therefore one of his oppressors, Mandela chose to see him as a freedom fighter, someone who, like himself, had fought for the liberation of his people. Mandela’s words that day chartered a new course for South Africans to follow: “That we have had grave and deep differences with some of the political leaders from this [Afrikaner] community, and with the racial policies emanating from them, in no way detracts from our sense of appreciation for the role of Afrikaners in building our common land.”⁴

Thabo Mbeki, who took over from Mandela as president in 1998, has expressed his vision of a new South Africa through the spoken word. This was no reformulation of an often-told story, but a narrative of inclusiveness that holds out the possibility of wholeness and healing. Here is a brief extract from Mbeki’s statement as Deputy President on the occasion of the adoption of the Republic of South Africa’s Constitutional Bill on 8 May 1996:

I am an African. I owe my being to the hills and the valleys, the mountains and the glades, the rivers, the deserts, the trees, the flowers, the seas and the ever-changing seasons that define the face of our native land.…

I owe my being to the Khoi and the San whose desolate souls haunt the great expanses of the Beautiful Cape.…

I am formed of the migrants who left Europe to find a new home on our native land. Whatever their actions, they remain still part of me …

In my veins courses the blood of the Malay slaves who came from the East. Their proud dignity informs my bearing, their culture a part of my essence.

I am the grandchild of the warrior men and women that Hintsa and Sekhukhune led, the patriots that Cetshwayo and Mphephu took to battle, the soldiers Moshoeshoe and Ngungunyane taught me never to dishonour the cause of freedom …

I am the grandchild who lays fresh flowers on the Boer graves…

I know what it signifies when race and colour are used to determine who is human and who is not.…

All this I know and know to be true because I am an African!⁵

Implicit in this statement is Mbeki’s vision of an African Renaissance – a revitalization of African languages, African traditions, African domination in all spheres of life in order to restore the dignity and prosperity of all his people.

In post-apartheid South Africa, the task of retelling the past from a more inclusive perspective has been taken up by a broad range of people, from community leaders and museum directors to playwrights and politicians. In 1999, for example, the Griqua descendants of Saartje Baartman, a Khoikhoi woman who was taken to Europe in the nineteenth century and displayed as a “Hottentot Venus,” demanded the return of her remains to South Africa from the Musée de l’homme in Paris. Another Khoikhoi woman, Krotoä (Eva), who was banished to Robben Island in the 1600s as an unfortunate misfit, has been reclaimed by an Afrikaner writer as onse ma (our mother).⁶ Most significantly of all, Khoikhoi and San communities are demanding the restoration of their stolen land and restitution in the form of compensation and a share in the wealth produced on their ancestral lands.

The history of black South Africans is also being retold. The Voortrekker Monument in Pretoria, with its larger-than-life engraved murals of white women and children being massacred by the Zulus, and vivid tapestries celebrating the heroism of the Voortrekkers, no longer dominates the depiction of South Africa’s past. Ordinary people, like Muriel Ncwana in Guguleto (Cape Town) are celebrating their cultural heritage – in this case, by opening a restaurant serving traditional Xhosa cuisine. Over the past decade, memorials to heroes like Stephen Biko, the Black Consciousness leader, and Hector Peterson, the first victim of the 1976 Soweto Student Uprising, have been erected, streets and towns renamed, and museums constructed to recall the bravery and sacrifices of the men and women who faced the onslaught of a terrible regime. The Robben Island Museum, housed in the former prison where Nelson Mandela and many others were incarcerated, is a vivid reminder of the irrepressible power of the human spirit. In December 2001, the Apartheid Museum opened in Johannesburg. Like the Holocaust Museum in New York, to which it has been compared, the Apartheid Museum ensures that South Africa’s chilling history will never be forgotten.⁷

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South Africa’s Truth and Reconciliation Commission was also an attempt to recognize and validate the hidden past. The hundreds of stories that were told at the TRC hearings, as vital as they were to the people concerned (whether victim or perpetrator), represent only a fraction of the stories of pain and injustice that could have been told. Even if a wider time frame had been provided by the Commission to include stories of gross human rights violations from colonial times, the Commission could not have uncovered all the stories there are to tell. The stories of dispossession experienced by African children who watched their mothers nurse and care for the white children of their employers; the stories of farmers who were forced off their land to work as sharecroppers or labourers on the lands that once were theirs; the stories of African men who left their homes and families for months at a time to work as poorly paid migrant workers in white-owned mines and industries – these represent a small part of the South African experience. Some of these stories are emerging in the land claim process, but many will never be publicly made known.

THE POWER OF STORIES (CANADA)

For too long Canada’s story has focused only on the needs and interests of its dominant society. The founding narrative – the image Canadians have of themselves – tells of a mosaic of many cultures melded into one and dominated by two “founding nations,” British and French. According to this founding myth, aboriginal peoples are expected to eventually adopt the languages and cultures of the dominant society and become assimilated as minority populations within Canadian society.

Political scientist Alan Cairns would like to see First Nations incorporated into the Canadian nation and given some special recognition as the first occupants of this country that would make them “Citizens Plus.” He laments the fact that aboriginal and non-aboriginal communities in Canada “do not meet as common members of a single society, sharing citizenship, common memories and mutual pride in past achievements.” History divides us, he argues, and it is overcoming these divisions, “at least to the extent that we can take pride in each other’s presence in our common country,” that is the goal towards which Canada must steadily work.⁸

The problem with this image of a blended society is that it ignores some major facts of history. The fact that Indian lands are protected under the Royal Proclamation of 1763, that treaties and agreements were negotiated with aboriginal nations by representatives of the Crown and federal and provincial governments, and that the 1982 Constitution recognizes the existing aboriginal rights of the indigenous peoples are inconvenient truths that have been largely ignored by the dominant society over the past hundred years. The onus has fallen on aboriginal people to assert their rights and to force legislators to recognize the special place of aboriginal people in Canada.

The oral histories of aboriginal people tell their own versions of Canada’s history. The stories and myths of “empty lands” and “disappearing races” that supported four hundred years of dispossession are now being challenged by the proud history of aboriginal nations whose strong traditions continue to adapt to changing times. Aboriginal people are telling their stories through the various royal commissions, through their organizations, through the court cases of residential school survivors, through land claims and negotiations for territorial rights and self-government. Each of the aboriginal groupings defined by the federal government and recognized in the Canadian Constitution, tell their own story of dispossession and broken promises. In recent years, the demands of aboriginal peoples for self-determination and economically viable territories are receiving attention from governments and from the courts.

As the Royal Commission on Aboriginal Peoples report pointed out, aboriginal Canadians are not an “inconsequential minority group with problems that need fixing and outmoded attitudes that need modernizing.” They are the original occupants of the nation, many with treaties that recognized their rights; a constitution that affirms those rights and their continued cohesion as nations within Canada. They have a right to a special place in the flexible federalism that defines Canada.⁹ The constitutional and legal framework now exists for the Canadian government to implement the appropriate public policy that would give aboriginal people the opportunity to be self-governing entities in Canada.

Canada’s aboriginal peoples have entered the twenty-first century with new assertiveness and determination. Speaking as Grand Chief of the Assembly of First Nations at an Indigenous Peoples’ Conference in 1991, Ovide Mercredi articulated the spirit of confidence that other native leaders are affirming:

If we believe in sovereignty, then we must practice that belief and put mechanisms in place to assist others. We must develop an indigenous agency for development and not wait for others to take on what is our responsibility. The time for grieving over past injustices is over. It is time to pay attention to hurts collectively and to move forward.¹⁰

Establishing international connections is a vital part of a worldwide movement in aboriginal solidarity. One of the ways in which aboriginal peoples are supporting each other in reclaiming their lands and resources is through the courts.

The British case system, which is adopted by most former British colonies, has proved to be a helpful tool for indigenous peoples claiming land based on aboriginal rights. One example is the case of the Richtersveld community in South Africa which claimed rights to ancestral land (including rights to the diamond mines) based on precedents established in similar cases in Canada and Australia. The Mabo case in Australia was fought on similar grounds (see Appendix). Although the courts do not always decide in the aboriginal party’s favour, aboriginal plaintiffs are becoming more skilled at using the court system to their own advantage. Learning the language of the dominant society has become a necessary part of their survival strategy. For Canada’s First Nations, the Constitutional recognition of existing aboriginal rights is vital to the land restitution process. It is the responsibility of the courts – in particular, the Supreme Court of Canada – to interpret what these rights entail. It is the task of governments to implement the courts’ decisions and to ensure that justice is done.