Land and Law by Design
Aamirah Nakhuda, Aidan Qualizza, and Sofia Munera Mora investigate Treaty 72
The summer of 2021 was the second year of In the Postcolony, a three-year thematic series facilitated through the Master’s Students Program. The series aims to examine how architecture and urbanism continue to respond to the long echoes of colonial practices of spatial dispossession. This article is the second instalment of the series and probes the legal, social, and political impacts of delineating land, offering the story of a three-month investigation into the Saugeen (Bruce) Peninsula as it falls under Treaty 72.
Building on the Toward Unsettling Syllabus produced by the 2020 Master’s Student researchers, this project aims to make visible the narratives that are often erased in settler colonial society. The following article is accompanied by an open-ended and collaborative syllabus and index, as well as a series of interviews whose transcripts will become the first set of primary sources related to treaties to be incorporated into the CCA collection. This project is part of a larger effort toward institutional acceptance and encouragement of diverse approaches to design within the CCA, and within architectural education more broadly.
Treaties exist as both objects of design and legal mechanisms used to help produce the settler colonial nation-state. These legal agreements between multiple parties assign title to land, and were first used by Indigenous peoples across Turtle Island (North America) to establish relationships with others traversing and living on the land. In the Canadian context, treaties were presented by the federal government as a guarantee of Indigenous sovereignty. However, they often became instrumental in the commodification and capitalization of land and waters. For many Indigenous nations, treaty and title claims (collectively referred to as land claims) are legal mechanisms that enable the establishment of rights to land within the settler colonial legal system. These claims involve lengthy court proceedings to present evidence of exclusive and sufficient use of a disputed area. The Saugeen Ojibway Nation (SON) filed a land claim in 1994 regarding Treaty 72, highlighting the disparities between settler and Indigenous ways of interacting with land.
The Treaty 72 land claim has revealed that a stolen land is the theft of memories, histories, language, and culture, which are deeply tied to place. Indigenous ways of living have developed alongside and are inseparable from land and water, which have been restricted by settler colonial models of land ownership and practices of drawing boundaries. This disparity was made visible during the summer of 2021, as bodies of Indigenous children were found across Turtle Island at former residential school sites and mass protests occurred in support of Palestinian independence. These moments clarified that action is urgently needed to address how settler colonialism continues to impact the lives of Indigenous people beyond just the demarcation of land.
As three settler students of architecture in southern Canada, it became important that our research into settler colonialism, treaties, and land centred around listening to Indigenous knowledge holders, educators, and designers already at the forefront of the discussion.1 The following three segments arose from listening to six individuals (Chief Lester Anoquot, David Fortin, Cathy Guirguis, Dani Kastelein, David McNab, and Tiffany Shaw-Collinge) responding to questions about the meaning of land, treaties as objects of design, and the future of the Saugeen Peninsula. Each interviewee highlighted that just as individual relationships with land are highly personal, relationships with treaties are equally as personal and emotional in nature. The full conversations, which took place during the summer of 2021, will be accessible through the CCA’s digital collection.
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We began this research with limited knowledge of Treaty 72, the complex histories of treaties across this land, and the processes of treaty making in general. With this in mind, and after a period of reading, learning through seminars and conversations, and acquainting ourselves with these subjects, we chose not to make substantive claims on the topic, realizing that from our position listening would be more impactful. ↩
© Environment Office 2021
What is Treaty 72?
In 1836 the Federal Government negotiated with Indigenous residents to exchange 1.5 million acres of land south of the Saugeen Peninsula for economic assistance and protection of the area from settler encroachment. The Crown broke this promise in 1854 by negotiating Treaty 72, which enabled the government to sell the land to settlers. How does this history differentiate the Treaty 72 land claims from previous claims?
“There are two claims within the SON’s land claim. There is the Aboriginal title claim and there is the Treaty 72 claim about fiduciary breach. Both are pretty novel. With the first one, Aboriginal title was to lake beds, to portions of Lake Huron and Georgian Bay that surround the Saugeen Bruce Peninsula. That is the first time that a court has ever decided on a claim to Aboriginal title to water. So that’s very unique. There are other claims out there […] but this is the first one to go all the way to trial.” –Cathy Guirguis (Partner at OKT LLP)
“The land claim is not about third party. It’s not about people that already own property or people that have farms established already. That’s not the issue, our issue is with the government and compensation.” –Chief Lester Anoquot (Saugeen First Nation)
The land claim is not attempting to return the entirety of the Saugeen Peninsula back to the SON. Rather, unoccupied land that is still held by the government would be required to be returned to the SON, producing a weaving of Indigenous and non-Indigenous lives into the fabric of the peninsula.1 Similarly, if Aboriginal title to the submerged lands of Lake Huron and Georgian Bay is restored, Canadian law will absorb Indigenous legal perspectives, redefining how we assign ownership. How can Indigenous legal thought affect Canadian law?
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“Saugeen Ojibway Nation Treaty and Title Claim,” OKT Law (blog), accessed October, 2021, https://www.oktlaw.com/services/cases/son_titleclaim/. ↩
“Indigenous peoples and First Nations can just start asserting their own laws. They can start asserting ‘This is what’s required on our traditional territory, what’s required on our lands.”’You may get resistance from the other side. […] We need to continue to expand and challenge the law to look at it from a broader perspective.” –Cathy Guirguis
On July 29th, 2021, the Ontario Superior Court released their decision on the land claims. While the court affirmed that the Crown breached the treaty promise, the decision also stated that the SON had provided insufficient evidence to support their title claim to the submerged lands of Lake Huron and Georgian Bay. The SON has begun a process of appealing this decision, thus challenging the law as it pertains to treaty rights.
“I think had the [Treaty 72 Land Claim] decision been favourable, it would have had a ripple effect across Canada. And it would have been a precedent-setting issue for the entire nation of Canada.” –Chief Lester Anoquot
What is land?
As the first claim to waters in review by the Ontario Superior Court, the Treaty 72 case provokes a deeper questioning of how to define fluid territory in relation to solid earth. The treatment of land and water as separate entities disregards the relationships that cross and blur the boundaries between them. What happens when we expand the definition of land to include earth, air, water, and submerged grounds?1
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E. Tuck, K. McCoy, and M. McKenzie, “Land Education: Indigenous, Post-Colonial, and Decolonizing Perspectives on Place and Environmental Education Research,” Environmental Education Research 20, no. 1 (2014): 8. ↩
“Whenever I talk about water, I talk about the land underneath the water. Specifically in Georgian Bay, there are national parks that exist underneath the water. There are shipwrecks that had been designated as historical sites. I’ve had an elder tell me that there are old fires beneath the water. There’s an Indigenous presence under the water, but those things are not necessarily recorded and not as well pinpointed or referenced. […] Water is not a void, it’s also a space.” –Dani Kastelein-Longlade (Designer)
Seeing water as space recognizes its ability to merge in definition with land as a realm of exchange. Land described as fluid acknowledges the capacity for relationships to transform and adapt alongside an ever-evolving landscape. Indigenous presence, when tied to a fluid land, seeps into the future rather than remaining relegated to a static position in the past. How do different perspectives about what space means influence our respect for land and the people whose practices are rooted in its well-being?
“An Indigenous standpoint is that the land is not there for you, it’s there for everybody. It’s not meant to be extracted from all the time. It has to be a give and take, and I don’t think that is the western, colonizer, settler point of view. You can see how the sustainability conversation is so pervasive. […] I think it’s people thinking that this is for them.” –Tiffany Shaw-Collinge (Artist and Architect)
“All my relations […] is about all the spirits that reside in the land, because everything has a spirit in this world, in the land, not just human beings. The issue here is that European society sees human beings as the highest form. They negate the spirits of other things in the land, they negate the land rights of Indigenous people, so there is no understanding of Indigenous land rights. The land is there, but it’s a false understanding of present-day people about the land, and their unwillingness to concede that Indigenous people have land rights. Instead of all my relations and accommodating everything, we have assumed Indigenous people have no land rights.” –David McNab (Historian and Professor at York University)
Whether land is seen in all of its relations or as a space of extraction influences decisions on who possesses the rights to access and make use of its expanse. How do we assess land and determine its rights?
“When you want to build something on the land, the legal regulations only require you to look at that piece. When it comes to what our [Indigenous] clients want, they say we need to look at it from further away. This is our traditional territory and if you hurt this piece, then it might hurt this piece, and this piece. It’s always a struggle back and forth to be able to figure out how to get the other side to see the importance of taking that broader perspective. […] But it’s important to incorporate that perspective, because when you leave that out, from a rights-based perspective, what it comes to is that you are not honouring the protection of those rights. We need to reconcile those two perspectives.” –Cathy Guirguis
How do you address land in education and practice?
As students in the field of architecture, we noticed that our curriculums rarely, if at all, acknowledge land as more than a surface to build upon or within. Land encompasses humans, species, and practices, as well as the relationships that break, form, mingle, and converge to characterize vast territories. At what moment did you begin to understand the broader implications of land?
“I knew [land] was something more than the textbook because of the stories my teacher of Canadian History, Jim Moses, told. It showed me that learning and teaching was not about books. It showed me that the stories came from land, and because of that you are forced to listen to the land wherever you are. […] The land is here despite the buildings.” –David McNab
A building, as an object, becomes a conversation between people and land. In this way, learning how to design buildings is learning how to decide whose voices will be included in the conversation. Recognizing the subjectivity involved throughout this process is part of the path toward learning how to be accountable.1 If spaces are a reflection of the people partaking in their use, design must also be taught in a way that reflects those seeking to learn. This means representing voices in a way that recognizes the value of their connections to land, but also seeking avenues for architectural education to adapt and change alongside students. How do you challenge assumptions about land during the design process?
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Shawn Wilson, Research Is Ceremony: Indigenous Research Methods (Black Point, Nova Scotia: Fernwood Publishing, 2008), 7. ↩
“When you draw a section, you always put a thick black line. Everything is on top of that, or you carve into it, or whatever, but it reduces the land into a thick black line, which is ridiculous when you think of what’s going on under that line. The organisms, the life that you’re building with. Honestly, when I was at school very few people were foregrounding sustainability as a design emphasis, it was always an afterthought. […] I think that your relationship with the land, once you reposition yourself, is a matter of what your priority is, and what’s foregrounded in your design process. […] It’s no longer sketching out site plan ideas and thinking about what would work formally or aesthetically or what’s interesting, as much as what makes sense, what can connect us to that land, what respects the land in your design process. It becomes a different way of approaching your work.” –David Fortin (Architect and Professor at Laurentian University)
In academic institutions, learning how to design often means learning how to use boundaries, lines, and divisions to demarcate space. How do you confront, subvert, and unsettle settler colonial definitions of boundaries and their associated design approaches?
“My practice is deeply rooted in site-specificity so I really believe that each project will form itself based on the surroundings. I try not to come with preconceived notions of what the space should or could look like. Site visits are so important because you get the atmosphere of what is going on. I really like to highlight invisible identities, or ephemerality, and invisible forces. What are the hums of the trees, what does the air feel like, what is the humidity, what is the topography, what is the voice of the land asking me to look for or what is it proposing that I see?” –Tiffany Shaw-Collinge
“I think it’s important to also recognize that for First Nations and Indigenous people, it’s not like they were boundary-less prior to contact. There were understandings of land and relations with the land. If you think about some of the things… Let’s say language groups. If you follow language groups, often the language groups of First Nations also correlate with landscapes. So the Woodlands Cree have dialects of Cree that correspond to their place in the world, whereas the Plains Cree and the Dakota and the Lakota or the Blackfoot people have different languages because their languages are deeply connected to those landscapes. And so there were delineations in a sense, always delineations based on how well one knew the land or how culturally connected you were with that landscape. I think identity is huge, but boundaries are also vague. […] Language is a boundary and language is transportable. So whenever someone comes to an urban centre and speaks their language and someone speaks it back, that creates a sense of community. Thinking broader about boundaries beyond property lines is very important, and also recognizing that identity is crucial.” –David Fortin
As the second in the three-part series In the Postcolony, we see this project as the continuation of a conversation that is taking place over many years through different voices, perspectives, and approaches. Our contribution involved conversations with designers, educators, and others already engaged with the topics of treaty making and land. Our hope is that these conversations will be woven together with ongoing efforts to make Indigenous sovereignty and action visible. We observed our own impacts as settlers researching these topics that were new to us, but that carry a long history of conflict and erasure. We began to reposition ourselves in relation to the land within which we learn and work. Most importantly we learned the importance of listening.
We hope that others will use the material we have collected and woven together as primary research resources, while embarking on a path to listening.
This project was pursued under the guidance of Rafico Ruiz and in virtual conversation with invited guests. The authors would like to extend their thanks to Dani Kastelein, Desirée Valadares, Eladia Smoke, Adrian Blackwell, David Fortin, Tiffany Shaw-Collinge, David McNab, Chief Lester Anoquot, Cathy Guirguis, Ryan Gorrie, Alexandra Pereira-Edwards, Misca Birklein-Lagassé, Zaven Titizian, and the CCA staff.
