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Indigenous Land Trusts: Using and Transcending Settler Colonial Legal Frameworks


Published onOct 18, 2023
Indigenous Land Trusts: Using and Transcending Settler Colonial Legal Frameworks

A land trust, broadly understood, is defined by the Ontario Land Trust Alliance as a “non-profit, charitable organization which has as one of their core activities the acquisition of land or interests in land (like conservation easements) for the purpose of conservation.” Land trust organizations often suggest that their work relates to “saving” sites by placing them under legal protection and taking on stewardship duties for future generations. Histories of conservation and land acquisition among non-Indigenous groups have often formed through the dispossession of Indigenous families, communities, and nations.

The model itself is based on interactions with settler colonial property law and concepts like conservation, land ownership, access, and relationships with other species. Creating a land trust in Canada requires a great deal of organizational capacity, including registration and incorporation as a legal entity as affirmed by Canadian standards and practices.

It takes navigating multiple steps and processes, including the pursuit of dedicated funding, to keep the organization going. It is expected that land trusts maintain adherence to standards set to align with the norms and expectations of an existing settler colonial legal framework. In participating in these systems, land trusts codify and affirm ideas about land, space, private property, and other concepts rooted in the dispossession of Indigenous peoples and land bases. This dispossession is continually challenged by Indigenous peoples and is the subject of ongoing jurisprudential analysis in multiple avenues, including Canadian supreme courts. In the words of Professor John Borrows (2015, 103), “…all land law in Canada partially flows from Aboriginal title; either through its extinguishment or modification to allow for the creation of private ownership interests, or through its continued existence which accommodates private ownership interests.”

Legal framing and land relations are intergenerational, interdimensional, and holistic for Indigenous peoples, as described by Clint Jacobs, Anishinaabe, of Walpole Island Land Trust. Clint said, “In my mind, we need people to recognize that our people already had ways of caring for the land, supporting conservation, based on our cultural values, our ways, our teachings, our practices. We can put out a piece of paper saying that we’re going to protect things. Maybe that piece of paper will get torn or lost or put on a shelf to collect dust for a few decades. That’s not how we do things as a culture. We live our laws. Our laws are written on our hearts.”

The Walpole Island Land Trust was Canada’s first registered Aboriginal land trust and was founded by Jacobs in southwestern Ontario. It is within the territory of Walpole Island First Nation or “Bkejwanong,” meaning “where the waters divide” in Ojibwe. The land trust has been in operation for over a decade and is focused on restoring cultural relationships, increasing language fluency, connecting young people to their other-than-human relations (plants, animals, land, waters), and healing the harms of colonization by restoration with and through the land.

Much of the day-to-day work of the land trust involves integrating cultural knowledge about species, history, and place. It also involves connecting Elders, youth, students, and others with the abundance of the Island and its surroundings known for generations by Ojibwe-Anishinaabe. The unceded territory is a refuge for those who maintain ancestral and inherent rights and responsibilities to caring for the rare environments and species in the biodiverse region: wetlands, forests, prairies, and others.

The Anishinaabe of this area have a six-thousand-year track record: “Through their native philosophies, values, and practices, which dictate respectful interactions with the natural world, Walpole Islanders have preserved natural areas and plant and animal species sometimes found nowhere else in Canada” (Nin.da.waab.jig 2006, quoted in Beckford et al. 2010).

The Walpole Island Land Trust organization creates educational, cultural, and land-based opportunities for local First Nations and for the public. As an organization, it has a mandate related to the preservation and restoration of unique Anishinaabe relationships that were eroded by factors like the residential school legacy, the disruption of intergenerational knowledge transmission, pollution, encroachment, and the imposition of the Indian Act, which severely limits access to land and related opportunities.

Canada’s ongoing “reconciliation” project has sparked change and uncertainty across demographics and places while assuredly attempting to secure the future of the settler colonial project that underpins its existence. Call to action number 50 of the 2015 Truth and Reconciliation of Canada reads, “…we call upon the federal government, in collaboration with Aboriginal organizations, to fund the establishment of Indigenous law institutes for the development, use, and understanding of Indigenous laws and access to justice in accordance with the unique cultures of Aboriginal peoples in Canada.”

While this call to action has not been entirely fulfilled, there is continuing momentum for an enhanced understanding of Indigenous laws and legal traditions, also supported by the passage of Bill C-15, an Act Respecting the United Nations Declaration on the Rights of Indigenous Peoples Act (2021). It is important to note that each of these efforts carry their own histories and complexities, especially pertaining to the pluralistic ideas held by Indigenous peoples about how to express and codify their laws and to be in good relation to their homelands and sites that are meaningful to them (White Face 2013).

Developing a land trust represents one way to combine the needs of formalized land stewardship and the tending of place. It also, however, creates additional strain on Indigenous communities already impacted by legacies of excessive bureaucratic overreach: unwelcome paperwork, dependency on grant and funding cycles, and the inherent injustice of needing to create a separate legal entity to have uninterrupted, unthreatened access to one’s own homeland.

While governments steeped in colonial land occupation and domination make and break promises and create other efforts to secure their own futures, the persistence of Indigenous legal traditions and legal orders remains at the grassroots level. These efforts are evidenced by organizations like the Walpole Island Land Trust, which prioritizes the wellness of the land by passing on the rich heritage of Ojibwe-Anishinaabe cultural knowledge. This knowledge touches multiple dimensions of experience: physical, mental, emotional, and spiritual connection to place.

Indigenous peoples continue to activate and apply values that transcend the constricting boundaries of settler colonialism (Indigenous Circle of Experts 2018).1 This work does not only benefit Indigenous peoples; knowledge and experiences of Indigenous peoples represent an enduring, alive world of agency-making and possibility for all Beings. Planning and related professions are welcome to challenge settler colonial normativity to ask questions about what a truly Indigenous-led future looks like.

Clint Jacobs (Anishinaabe) and Leora Gansworth (Anishinaabe)

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