Category Archives: Indigenous Issues

O’odham Nation contact with Europeans

As I write this blog, I am living in southern Arizona o the traditional territory of the O’odhan Nation. Often I visit San Tan Regional Park minutes from here to hike or attend talks or look for wild flowers. There is no general agreement about the origins of the O’odham nation. Some claim that they originally moved north from Mexico about 300 years ago.

The O’odham did not get along well with the Apache from the 17th century until the beginning of the 20th century. The O’odham were a settled agricultural people who raised crops for survival unlike the nomadic Apache. According to O’odham history (oral traditional knowledge) the Apaches frequently raided their settlements when they ran out of food because food was running short and hunting success was lacking.

When European settlers arrived things got worse. Though both now had a common enemy who seemed intent on grabbing all of their land it was difficult for their foes to cooperate. The O’odham word for Apache is ob, which means enemy.  Things were complicated because each from time to time worked with opposing European groups. Alliances just like those between Indigenous Nations in the North East, including Canada, made relations with European settlers (invaders)  complicated.

For example, in 1871, 92 O’odham joined the Mexicans and Anglo-Americans to fight the Apache. 144 Apache were killed in the Camp Grant Massacre. The dead consisted mainly of women and children. In fact 136 of the victims were women and children killed by the brave O’odham, Mexicans, and Anglo-Americans. 29 children were also captured and sold into slavery. To put this into perspective remember 1871 was 4 years after the Confederation of Canada. This is not ancient history. This is recent history. And it is not pretty.

Some historians claim that because there was a reduction of Indian hostilities in the region at that time, local merchants feared a looming economic crisis because they depended so heavily on Federal Government spending on supplies for their soldiers sent to pacify the nasty Indians, particularly Apache. In order to encourage support for more federal government support it was alleged, though not to my knowledge proven, that some local merchants initiated hostilities with the Apache leading to the attack on the Apache settlement at Camp Grant.

There is significant evidence that the O’odham and the Apache were friendly and engaged in trade. There is even evidence that they intermarried. Yet, at the same time O’odham oral history suggests that intermarriages actually resulted from raids between the two Native American groups. Those raids provided the successful party with women, children, and sometimes men, as slaves. Women would often marry into the tribe in which they were held captive and assimilated under duress. Sort of like the young girls captured by Boko Haram in the 21st century in Africa. Some things never seem to change. In any event, according to this oral history of the O’odham both Native American groups incorporated “enemies” and their children into their culture and this was done by force.

Historically, the Hohokam occupied a very large area of the southwest extending into the province of Sonora in Mexico, to north of Phoenix west to the Gulf of California and east to the San Pedro River. This land has been the home of the O’odham for thousands of years.

However, the arrival of Europeans starting in the 17th century became an increasing challenge to the O’odham. From early in the 18th century, foreigners occupied their land. First were the Spanish and later the Americans.

When Mexico became independent from Spain they colonized the O’odham. In 1853 with the Gadsden Purchase their land was divided nearly in half between the Mexicans and the Americans. That purchase was conducted, of course, between Mexico and the United States, but the real owners were the O’odham. It had been their land for many centuries, but that did not bother European colonizers or their offspring. The local people were mere inconveniences.

The Gadsden Purchase, or Treaty, was an agreement between the United States and Mexico, that was completed in 1854. Pursuant to that agreement the United States agreed to pay Mexico $10 million for a 29,670 square mile portion of Mexico that later became part of Arizona and New Mexico. The Americans wanted that land to complete a southern continental railroad and also to resolve lingering conflicts between the U.S. and Mexico following the Mexican-American War.

That agreement provided that the US would honor all land rights of Mexican citizens, which theoretically included the O’odham, and agreed that the O’odham would have the same constitutional rights as any other United States citizen. Of course, when the railroad was built and more and more settlers poured into the American Southwest and mining expanded more and more O’odham land was usurped by the Americans just as happened in many other places of the American west.

At first the O’odham were not even told about the sale of their land to the Americans. At  the time the border was not even strictly enforced. That border straddled O’odham territory as it does to this day.

In fact now Trump’s wall separates the O’odham who live in Mexico from those who live in the United States. Until then they had easy access between the two countries. The O’odham were not asked about that wall either. The Americans just built it. Some things never change.

A legal Quagmire

 

Until recently, purported Wet’suwet’en hereditary chiefs, who oversee 22,000 s.q. km of territory in British Columbia, have refused to allow the company Coastal GasLink access to their lands. According to the judgment of Madam Justice Church of the B.C. Supreme Court in the Coastal GasLink Pipeline Ltd. v. Huson, 2019  case that went to her court on the issue of granting an injunction to CoastalGasLink to stop them from blockading access to the land there is significant doubt as to whether or not the elected Chiefs and Councils  have the jurisdiction to decide whether or not the pipeline can be built on Wet’suwet’en land. This is what she said in her judgment in that case:

“The evidence before me indicates significant conflict amongst members of the Wet’suwet’en nation regarding construction of the Pipeline Project, including disagreements amongst the Wet’suwet’en people as to whether traditional hereditary governance protocols have or have not been followed, whether hereditary governance is appropriate for decision-making that impacts the entire Wet’suwet’en nation and the emergence of other groups, such as the Unist’ot’en, which purports to be entitled to enforce Wet’suwet’en law on the authority of Chief Knedebeas and more recently the WMC, which apparently seeks to challenge the authority of the hereditary chiefs to make decisions for the Wet’suwet’en nation as a whole and the manner in which the traditional governance processes have occurred.”

The WCM is Wet’suwet’en Matrilineal Coalition that has 5 board members  representing each of the five Wet’suwet’en clans. Each of the board members is either a hereditary chief or wing chief.

Sadly the case is a mishmash and I have a lot sympathy with the judge in that case who had to sort through the maze of conflicting facts. It really was not an application to the court to determine Aboriginal title. It was rather an application for an injunction which is determined on the basis of affidavit evidence and not evidence at a trial that becomes very difficult (when it is not impossible). The judge does not listen to witnesses, but only reads their written statements in affidavit form. Often there is no cross examination.

One of the major problems with this case is who speaks for the Wet’suwet’en people? The pipeline project has the support of 20 elected First Nation Councils along the proposed route, but the Wet’suwet’en chiefs say the authority of these groups only applies to reservations – not traditional territory.

We have to remember that the Indian Act provides for each recognized First Nation to have a Chief and Council and a reserve.  In return usually the First Nation ceded land to Canada so that Canada could have the ceded land for the development it wanted. In that way, it would have a solid root of title to pass on to European immigrants.

The Wet’suwet’en hereditary governance system predates colonization and continues to exist today. The Wet’suwet’en and Gitxsan Hereditary Chiefs, not the Indian Act Chiefs and Councils, were the plaintiffs in the landmark Delgamuukw-Gisday’way Aboriginal title case. I commented on that case earlier in this blog. In that case they provided the court with voluminous detailed historical evidence of the Wet’suwet’en and Gitxsan governance system and the legal authority of Hereditary Chiefs.

Unless otherwise authorized by the Indigenous Nation members, the authority of elected Chiefs and Councils is limited to the powers set out under the Indian Act. At least that is the position of the Wet’suwet’en Hereditary Chiefs. The Indian Act does not provide authority for a Chief and Council to make decisions about lands beyond the boundaries of the First Nation’s reserves. In the injunction case Justice Church acknowledged that this was the position of the Hereditary Chiefs but did not say whether or not she agreed with it.

By contrast, the Hereditary Chiefs are responsible under Wet’suwet’en law and governance for making decisions relating to their ancestral lands. It is these lands that the Hereditary Chiefs are seeking to protect from the impacts of the pipeline project, not Indian Act reserve lands.

Indigenous peoples hold rights to lands in Canada that extend far beyond the boundaries of Indian Act reserves, including Aboriginal title and rights to the lands they used and occupied prior to the arrival of Europeans and the assertion of Crown sovereignty. Aboriginal title and rights are protected under the Constitution Act, 1982 – the highest law in Canada’s legal system. But what that actually means in practice is often far from clear, and inevitably, in cases of dispute, requires a court, and often that means ultimately the Supreme Court of Canada, to make a ruling, as it did in the Tsilhqot’in  case that I have  also commented on in this blog. It was another of the landmark cases that went to all the way to the Supreme Court.

The Wet’suwet’en people, like most First Nations in British Columbia,  never entered into a treaty agreement with Canada whereby they disposed of all of all of their territory. As a result they take the position that Canada can’t claim it’s their land unless they have a purchase receipt with the crown. That is consistent with the Royal Proclamation of King George of England in 1763 that really is the basis of Canadian aboriginal law. Only the king (now Canada) could buy land from First Nations and if it did, then that land is owned by the Crown (the government of Canada) who can of course use that as basis for land grants to anyone it chooses, such as immigrants to Canada. Without such an acquisition from the First Nations by the Crown, the origin claims of the original owners must prevail.

I recognize that it is difficult for developers in such circumstances to figure out with whom it must consult. On the other hand, look at the corporate structure of Coastal GasLink and its international partners. That makes the Wet’suwet’en organization look like the simplicity of child’s play in comparison. But it is not enough to say that 20 Chiefs and Council have approved of the project. It is more complicated than that. In fact, it’s a legal quagmire. There is more than one such quagmire in this case.

Tsilhqot’in: If Aboriginal title is Established

In the Tsilhqot’in case, the Supreme Court found that the First Nation had successful established its claim to aboriginal title to the land in question. In other words, the First Nation owned the land when Europeans/Canadians first encountered them. It was not empty land free for the taking.

Where Aboriginal title has been established, the Crown must not only comply with its procedural duties, but must also justify any incursions on Aboriginal title lands by ensuring that the proposed government action is substantively consistent with the requirements of s. 35 of the Constitution Act, 1982. In order to interfere with that ownership right, this requires the government to demonstrate both a compelling and substantial governmental objective and that the government action is consistent with the fiduciary duty owed by the Crown to the Aboriginal group.  The honour of the Crown demands this on the part of our government.

This means the government must act in good faith in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations, and the duty imposes an obligation of proportionality into the justification process: the government authorized incursion must be necessary to achieve the government’s goal (rational connection); the government must go no further than necessary to achieve it (minimal impairment); and the benefits that may be expected to flow from that goal must not be outweighed by adverse effects on the Aboriginal interest (proportionality of impact). Allegations of infringement or failure to adequately consult can be avoided by obtaining the consent of the interested Aboriginal group.  According to the Supreme Court, this s. 35 Constitutional framework permits a principled reconciliation of Aboriginal rights with the interests of all Canadians.  In a day of reconciliation this is very important.    I think this is a rational balancing of rights and responsibilities in such cases. Don’t you?

In the Tsilhqot’in case it was successfully argued that the issuance by the Province of B.C. of the logging licences affecting the land in 1983 and onwards, before title was declared was unconstitutional.  The honour of the Crown required that the Province consult the Tsilhqot’in on uses of the lands and accommodate their interests before issuing such a license.  The Province did neither and therefore breached its duty owed to the Tsilhqot’in.

However, the issuance of timber licences on Aboriginal title land is a direct transfer of Aboriginal property rights to a third party and will plainly be a meaningful diminution in the Aboriginal group’s ownership right amounting to an infringement that must be justified in cases where it is done without Aboriginal consent.

I think similar issues might arise in the Wet’suwet’en case. We’ll see if I’m fright.

Aboriginal Title: Tsilhqot’in Nation v. British Columbia

 

In 2014 in the case of Tsilhqot’in Nation v. British Columbia  the Supreme Court of Canada rendered its decision on one of the most fascinating legal question relating to indigenous people. Who owned the land of Canada when Canada became a country and claimed sovereignty over the land? Who owns that land now that has never been ceded to the government of Canada? Exactly this issue has become important again in the recent case involving Wet’suwet’en First Nation and CoastalGasLink Pipeline.

As the Royal Proclamation of King George said in 1763, only the English Crown could buy land from Indigenous people and it had to purchase the land. It could not acquire it by conquest. In time the government of Canada replaced the English crown. That was why the government of Canada was eager after Confederation in 1867 to enter into treaties with First Nations so that it could establish a solid root of title so that it could in turn grant unchallengeable titles to people immigrating here from Europe. It is a fundamental principle of English common law that no one can transfer a better title than he or she has. All titles are transferred with all defects attached.

Soon after Confederation, Canada started negotiating  with First Nations the numbered Treaties, as they are called, in central Canada and gradually moved west. For example, Treaty No. 1  was negotiated and entered into in August 1871 at Lower Fort Garry. A few of the Canadian communities sharing the obligations and benefits of Treaty No. 1 include: Winnipeg, Brandon, Portage La Prairie, Selkirk, Lundar, Grand Beach, Emerson, Winkler, the holy city of Steinbach, and many more. Treaty No. 3 includes Buffalo Point where we have a cottage. Canada has negotiated treaties with most First Nations in Manitoba. Unfortunately British Columbia does not have many treaties, because development of Canada spread west much faster than the Treaty making process could keep up. As a result much of B.C. is not covered by Treaties, but Indigenous people did live in those areas when Canadians arrived. This has left an awful vacuum in much of the country, particularly in BC. After all it  is more than 150 years since the treaty making process began. That is unfortunate now when companies like CoastalGasLink want to develop. With whom does it make a deal?

For centuries the Tsilhqot’in Nation, a semi-nomadic grouping of six bands sharing common culture and history, lived in a remote valley bounded by rivers and mountains in central British Columbia.  It is one of hundreds of indigenous groups in B.C. with unresolved land claims. In 1983, B.C. granted a commercial logging licence to a commercial group on land considered by the Tsilhqot’in to be part of their traditional territory.  The band objected and sought a declaration prohibiting commercial logging on the land.  Talks with the province reached an impasse and the original land claim was amended to include a claim for Aboriginal title to the land at issue on behalf of all Tsilhqot’in people.  Sounds a lot like the Wet’suwet’en case doesn’t it? The federal and provincial governments opposed the Tsilhqot’in title claim. 31 years later, the case ended up in the Supreme Court of Canada. The trial itself lasted a number of years!

In the end, the Supreme Court granted a declaration to the Tsilhqot’in of Aboriginal title over the area requested and granted  a declaration that British Columbia breached its duty to consult that it said was owed to the Tsilhqot’in Nation.

Even though the claimant to aboriginal title has the onus of proving that title, the court held the onus of proof had been discharged in that case. It held that the Tsilhqot’in First Nation had established Aboriginal title to the claimed area at issue.

 The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms.  The court held that aboriginal title flows from the original occupation by Indigenous people in the sense of regular and exclusive use of land.  To ground Aboriginal title “occupation” must be proved by that it that was sufficient, continuous (where present occupation is relied on) and exclusive.  In determining what constitutes sufficient occupation, which lies at the heart of that appeal, the court must look to the Aboriginal culture and practices, and compare them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation.  In other words how did people prove ownership in Canada when the west was settled?  Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the indigenous group exercised effective control at the time of assertion of European sovereignty or Canadian sovereignty.

While the Tsilhqot’in population was small there was evidence that the parts of the land to which it claimed title were regularly used by the Tsilhqot’in–i.e. there was sufficient occupation to base a claim for aboriginal title (ownership).  The geographic proximity between sites for which evidence of recent occupation was tendered and those for which direct evidence of historic occupation existed also supported an inference of continuous occupation.  And from the evidence that prior to the assertion of sovereignty by the Canadian government the Tsilhqot’in repelled other people from their land and demanded permission from outsiders who wished to pass over it, the court concluded that the Tsilhqot’in treated the land as exclusively theirs.   The Supreme Court said it was not necessary for the First Nation to prove there was a specific, intensively occupied areas can support Aboriginal title.  The trial judge had sifted through mountains of evidence to support the claim. The court even acknowledged that some of the evidence was conflicting, but the preponderance of evidence supported the Tsilhqot’in claim.

The nature of Aboriginal title is that it confers on the group that holds it the exclusive right to decide how the land is used and the right to benefit from those uses, subject to the restriction that the uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations.

Where a claim of aboriginal tittle is asserted by a group of indigenous people, prior to establishment of title, the Crown is required to consult in good faith with any Aboriginal groups asserting title to the land about proposed uses of the land and, if appropriate, accommodate the interests of such claimant groups.  This is very important for groups such as the Wet’suwet’en First Nation in its case. Yet, interestingly, these issues were not even considered by the court in the injunction case. Presumably this was because it was “only” an injunction case and not a full fledged hearing to determine the legitimacy of the claim for aboriginal title.

The level of consultation and accommodation required of the government varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.

Perhaps the reason the CoastalGasLink was not required to consult was that they were not aware of the assertion of ownership by Wet’suwet’en.

In any event this leaves open the question of whether or not the Wet’suwet’en First Nation owns the land on which the pipeline is proposed. If it does, the government of BC cannot on its own grant valid permits for construction on that land without the consent of the owner.

 

Delgamuukw v. British Columbia

 

Since the Constitution Act of Canada was enacted in 1982 a number of important cases have gone all the way to the Supreme Court on the issue of Indigenous land claims and rights. Some of those cases bear heavily on the issues that Wet’suwet’en First Nation faces today.

Interestingly, one of those cases was Delgamuukw v. British Columbia which also included the Wet’suwet’en and their neighbours the Gitxsan or Gitksan. I have already commented on the Gitksan people earlier in this blog. See http://themeanderer.ca/gitxsan

In fact as I mentioned in that earlier post it was seeing them at  the Gitksan village in BC many years ago that first got me interested in Indigenous issues. Today, the Gitksan are also supporting their neighbours the Wet’suwet’en. It really is a small world.

In the case of Delgamuukw v. British Columbia the Supreme Court recognized traditional governance forms of First Nations including the hereditary chief and clan system on traditional territories. That has become an important issue in the current Wet’suwet’en melee because of the disagreement between 5 of the Chiefs and Councils who have signed Benefits Agreements with the CoastalGasLink and the Hereditary Chiefs who are opposed to their pipeline. The Hereditary Chiefs are arguing in this current case that the Elected Band Councils and their Chiefs are more like municipal councils with jurisdiction only over reserve lands. The Court noted this in the injunction case but did not say whether or not it agreed with this assertion. Whether that claim is right or not is one of the many uncertainties in the current case.

In Delgamuukw v. British Columbia the Supreme Court upset the law as it was until that time. The trial judge had rejected the claim by the Wet’suwet’en and Gitksan that they had an aboriginal right  over traditional  lands in northern B.C. that had never been ceded to the Crown because it could not provide satisfactory evidence to support their claims. The Supreme Court overturned that decision, pointing out that the court should have paid more attention to the oral tradition of the Wet’suwet’en and Gitksan people. In order to do that the Supreme Court acknowledged that the ordinary laws of evidence must be adapted to place oral history on an equal footing with other types of evidence, instead of being classed as hearsay as courts had previously done. This made a huge difference in cases of Indigenous rights because invariably they depended on oral history.

In the Delgamuukw case the court also said, in accordance with the Royal Proclamation of 1763, that aboriginal title to land can only be surrendered to the Crown. Added to that, such land is communally held, not privately as other land. This is also a controversial issue I will comment on later in this blog. To prove that it has Aboriginal title a First Nation must prove by oral history, or otherwise, that the land was exclusively occupied prior to sovereignty.

This case considered the nature of Aboriginal title.  Aboriginal title is a right in land that allows a group to use the land in almost any way deemed fit.  The use need not be an Aboriginal right per se(e.g. the right to hunt).  Title land can be used in many ways, but not in a way that is irreconcilable with the original connection with the land (e.g. cannot strip mine a land that was used as a hunting ground).  Aboriginal title can only be surrendered to the Crown.  In other words, only the federal government can extinguish aboriginal title, not provinces. in the current case the Wet’suwet’en assert that they were never conquered and never ceded their rights in the land to the Crown and that therefore they own it.

Royal Proclamation

 

Many Canadians have been heard to say, the protesters of the pipeline must obey the rule of law. The rule of law is the basis of Canadian society. I agree. But what does that mean? It means everyone–the Indigenous people, white settlers, businesses, must obey the law. Lets not just pick on the Indigenous people. Canada is a country governed by law. That is what the rule of law means.

But this is complex. It is not enough to say that protesters must obey injunctions. Everyone must obey the law, even the majority who control the government of Canada or British Columbia.

To understand the point I want to make you have to look at some very old law–the Royal Proclamation of King George of England in 1763

There was a deep conflict in North America in the 18th century. One big issue was who would control the expansion of European-Americans into Indian Country? The governments of the United States after 1776, and Britain after its victory over France in the Seven Years War that began in 1756 and ended in 1763, jostled over who would get that control.

In 1763 just after the end of the Seven Years War, and before the American Revolution, the British Monarch, King George, issued a Royal Proclamation in which he asserted his absolute claim to exclusive authority to acquire by purchase (not conquest) aboriginal title in the lands that he reserved for Indian peoples as their hunting reserves. That land included most of North America and all the land west of the Mississippi River.

By this proclamation, that is still valid law in Canada, the British sovereign monopolized the exclusive authority to transfer lands from Indigenous people (Indians as he called them) to non-indigenous people. No private deals could be made! By this act, the British crown usurped the right to control and regulate the westward expansion of Anglo-American settlements. Really, the British King said he and he alone had the authority to decide who would own North America. Talk about hubris! However, by this Proclamation, King George also acknowledged that the land in North America (including in 1763 much of what is now the United States) was owned by the original inhabitants and ownership (title) could only be acquired by purchase! And only the crown could buy.

Americans of course, were loath to accept this and it was this proclamation and later taxes imposed on the Americans that led to their revolt against British rule. Indigenous people who had lived on this continent for millennia, never acknowledged that the British King had this authority. But they liked the acknowledgement that no one could acquire ownership of land after that time except the Crown and then only through purchase from indigenous people.

This Royal Proclamation is the basis for English (and later Canadian) authority over much of North America.  It really was the basis of law in Canada. The English realized that their claims over North America had a dubious foundation. The Royal Proclamation was intended to make that foundation sound. It was the foundation for empire–the British Empire–in North America.

The United States saw no need for such a basis for their expansion. They were content to rely on conquest. Canada never did that. It really did not do a lot of conquering. It took the position that it was governed by the rule of law.  Canada saw how the Americans were spending vast fortunes in its Indian wars and did not want to replicate that here. In one year 25% of the entire American federal government budget was spent on Indian wars.

It is important to recognize that the English government and its laws, which were later assigned to Canada after 1867, deliberately provided that land not purchased by the Crown from Indigenous People belonged to the inhabitants–the indigenous people.

That is still the basis of Canadian law in the wild territories. And this is still important today in understanding issues such as the melee over Wet’suwet’en land and pipelines over it.

Why is this relevant?  Because the Wet’suwet’en never ceded their territory except over those 6 parcels of land now included in those 6 First Nation Reserves established as such under the Indian Act. That means that no one has acquired those lands. The original owners, whoever they are, continue to own those lands. With ownership comes the right to say what can and what cannot be done on that land. What gives the Province of British Columbia the right to issue permits for developments, such as pipelines, over that land? What this means is that this is not ancient history; this is law.

Screaming for Law

The issue of the protests over the gas pipeline in or near the traditional territory of the Wet’suwet’en people is extremely complex. It has generated a lot of heat. I am trying my pitiful best to shine a little light on the issues from afar. Not only am I far away physically I have come without most of my books that sadly I had to leave behind. The only way I can do that is to meander through some of he issues looking at them in small bite-sized chunks.

I find it interesting how many people are screaming that they want the rule of law. Screams are rarely the way to support the rule of law. Now I am speaking metaphorically, as I have been ensconced in southern Arizona thousands of kilometres from the scene and the “screaming” I have heard has been from Canadians on social media.

I understand that people are upset. Particularly farmers unable to get their grain and other inventory to markets, or oil sands workers and pipeline workers unable to earn a living and countless Canadians unable to obtain goods they need that were being delivered by rail. I know a lot of important goods are delivered by rail. As a former CN sleeping car porter, I know the Canadian rail system is important to the country. But so is justice.

I understand that a number of indigenous activists and their allies have been arrested, much to the delight of some those people screaming for the rule of law. There were 3 Indigenous women included among those arrested.

According to the Guardian, “Freda Huson, Brenda Michell and Karla Tait were among seven people detained when Royal Canadian Mounted Police officers – backed by helicopters, heavy machinery and dogs – moved in on the remote camp in north-western British Columbia. These are not the customary instruments whereby the rule of law is imposed upon unarmed Canadian citizens. One of the things I have been surprised at  again, is how non-violent protests of Canadian Indigenous people have been over and over again. Yet, it seems, each time the Canadian police come with heavy artillery. Why is that?

Just consider how you would feel if you were at your home if  helicopters landed in front of you and unloaded heavily armed police Swat teams supported by dogs. Call me a sissy but I would be a bit disconcerted. Even if I had been participating in protests contrary to a court ordered injunction, I would have been disconcerted. I guess I am a sissy. Those Wet’suwet’en women are not sissies; that’s for sure.

But I keep thinking, there must be a better way to do this. A Canadian way.

Pity the Farmers and Oil Workers?

 

The Wet’suwet’en  First Nation issue is very complicated. The truth is murky.  I am finding it difficult to get information about the issue from Arizona. As I understand the facts, 5 out of 6 of the Tribal chiefs and councils under the Indian Act have signed Benefit Agreements with the Pipeline Company. But the hereditary or traditional chiefs are opposed. At least some of them are opposed. I also understand that the pipeline is not actually passing through the territory of those 5 Chiefs and Councils. Their jurisdiction is limited to their reserves. But their land claim might be affected. I don’t know.

One indigenous  person, I heard on CBC radio was opposed to the pipeline and claimed that Coastal GasLink the company that wants to establish the pipeline has signed Benefit Agreements with some First Nations that are not affected because they are easy to persuade (because it does not really affect them). Having a large group of First Nations signing such agreements makes consultation and informed consent sound more  impressive than it really is. On the other hand, Coastal GasLink has to make sure that it consults with as many groups that are affected as possible. If they don’t they will be criticized for that. Where do they draw the line? I sympathize with their plight.

I understand Canadian farmers (many of whom have suffered from poor crops)  are very upset that their grain shipments are held up. I can understand that. I also understand how oil workers or pipeline workers was to get to work to earn a living. That too is perfectly understandable.

Yet I wonder how many of the farmers or workers have ever urged their Member of Parliament to encourage them to have the Canadian government negotiate long-standing land claims made by the Wet’suwet’en people. I would have more sympathy for them if I knew that they had lobbied the government to honourably negotiate those claims as soon as possible rather than wait for the next crisis, as it seems to me they have done.

For example, many Canadian farmers supported the previous Conservative government led by Stephen Harper. Did he make any serious efforts to settle those claims? If he did I was not aware of them. What have the farmers done to help the Wet’suwet’en people?

I have less sympathy for groups that only advocate for what is good for them. That is too easy.

Everyone needs to walk a mile  in the moccasins of the others. That includes protesters and  anti-protesters.

What does “Rule of Law” mean in an indigenous context?

The late Mohawk scholar, Patricia Monture-Angus made an important and relevant statement when she said:

“Think about everything that First Nations people have survived in this country: the taking of our land, the taking of our children, residential schools, the current criminal justice system, How was all of this delivered? The answer is simple: through the law.”

The reason for this is that Canadian law often–too often–has been strongly Eurocentric. In other words, it has perceived claims of whites as naturally right and indigenous as naturally wrong-headed or ill-advised. Such law is clearly not just law. That is the reason that so many Indigenous people are suspicious of Canadian law. Frequently in the past Canadian law has been used as an instrument of domination over Indigenous people. The Indian Act is one example, Residential schools another. If you belonged to a group that had been repeatedly subjected to such domination you would likely be suspicious too. As a result when many Indigenous People hear that the Prime Minster expects them to respect the rule of law, it is understandable that they would not consider such an admonition in the same spirit as the rest of us might.

The Supreme Court of Canada has recognized, as many Canadians have not, that Canada was never terra nullius (“nobody’s land”) before European colonization.  Yet often this fact is ignored, particularly in dealing with things like unceded land. Unceded land is land that Indigenous people have not conceded belongs to Canada. They have never given up their claims to it. Significant portions of land have been ceded to Canada by treaties or other agreements. Significant portions of land the Wet’suwet’en First Nation has claimed as its traditional territory is unceded. Some of its land was in fact ceded to Canada. As a result 6 Indian Reserves, as they are called in the Indian Act, have been ceded to Canada.

Since the federal government and the Wet’suwet’en  First Nation have not come to agreement about their land claims, it is an unresolved land claim. It may or not be held to be valid. It is unresolved land claims that pose great problems for resource development in Canada. Unfortunately, those claims can take decades (or even centuries!) to be resolved. Often it seems to me there is no great pressure exerted on the federal government to conclude agreements with First Nations until a potential development, such as a pipeline, logging  enterprise or golf course, is proposed that would impact their land claim. Then it becomes urgent. I really wish people like farmers, pipeline workers, retired lawyers, and others pressed the government to resolve these claims rather than wait for the next crisis. Pressures of urgent developments are never helpful. It would be much better if such agreements were negotiated in advance of development with good faith and diligence. Then it could be done quietly, thoughtfully, without undue pressure.

in this case the pipeline company Coastal GasLink Pipeline Ltd obtained an injunction against the Wet’suwet’en people not to interfere with the construction of their  pipeline and they claim that injunction has not been followed. An injunction is a court order requiring someone, such as Wet’suwet’en First Nation  to do something or, more often, refrain from doing something. A recent study from the Yellowhead Institute at Ryerson University found that when Canadian courts issue injunctions they do so overwhelmingly in favor of corporations against Indigenous claims.  76% of injunction applications filed by corporations were granted while more than 80% of injunction applications applied for by First Nations were refused. Why is that? This pattern is perpetuated with the repeated issuance of injunctions – enforced with violence and threat of lethal force by the RCMP – against the Wet’suwet’en working against the Coastal GasLink project, authorized without the consent of the hereditary chiefs vested with jurisdiction over the decision. We have to be careful with such stats. By themselves they prove nothing. But they are interesting, and they impact what First Nations think about the Canadian judicial system.

As a result it is perhaps not so surprising that Wet’suwet’en people don’t have quite the reverence for judicial injunctions orders that other Canadians have. That doesn’t necessarily make it right, but it does make it understanding.

Rule of Law

 

The expression “rule of law” has been used many times in this dispute between some Wet’suwet’en people (not all) and the developers of the pipeline and the British Columbia government and the Canadian government and various other interested parties. All sides throw this expression at each other like weapons.

I am a recovering lawyer, so all my life, I have thought it is important to respect law. I still do. A country in which laws are not respected is a country headed towards anarchy. That is what many of us object to about the current President of the United States, Donald Trump. He thinks his country is a place where the laws apply to everyone but himself. His lawyer, Alan Dershowitz, argued in the recent Senate impeachment trial, that anything the President did was permitted by law. He seemed to say, the President by definition could not break the law. But most importantly, there in the United States and here in Canada is what to the people think? Do they respect the rule of law?  I really believe America is demonstrating conspicuously that Americans do not respect the rule of law. Few of his millions of supporters object. As long as it helps Trump win is all that counts. I don’t want Canada to be like that.

To most of us that was an anathema. That is not what law is. Law applies to everyone, even the rulers. The President is not a king.  Therefore the President must obey the law just like the rest of us. This is a fundamental concept to a society that wants to avoid anarchy. Does the same not apply to Wet’suwet’en people and their allies? Does the same apply to Prime Minister Trudeau and Premier John Horgan? I hope so. The same goes for the Canadians who have been roundly criticizing the Wet’suwet’en people and the damage their blockades of trains have been harming the Canadian economy.

 

But what is the law? That is not as quite as simple as it might seem. Clearly, the law includes the Constitution Act and Canadian Charter of Rights and Freedoms of 1982. It also includes the British North America Act that created the country of Canada in 1967. In fact it includes all laws passed by the Parliament of Canada within its jurisdiction as provided for in the British North America Act. It includes laws of the province of British Columbia pursuant to which permits can be issued to permit the construction of various projects such as pipeoines. It includes the laws of British Columbia that create a court of law and governs the decisions that are made by courts. Then of course there is common law. That is law created by judges interpreting the law. The laws of Canada also include those laws that were adopted by the British Parliament before 1987 but only to the extent that valid Canadian laws have not been enacted to contradict such laws. One of those laws is the Royal Proclamation of 1763. I will be commenting on it because it is relevant. This may surprise some of you, but in recent years there has been a growing recognition among Canadian courts and Canadian people that the law of Canada also includes aboriginal law. When Europeans came to Canada the people that occupied this country had laws too. Those laws are also important. They must also be respected. All of these laws are part of our “rule of law.”

Sometimes laws overlap. Sometimes laws contradict each other. Sometimes purported laws are outside their jurisdiction and hence invalid and not legally binding. Then courts have to determine what is really the law of Canada in the circumstances of any case.

With such a mosaic of laws it is not always easy to determine what is the law. That’s why lawyers are important. I had to say that.

In the Wet’suwet’en matter many laws have become important. It is not necessarily so easy to say what is the law and how should it be enforced.

A friend of mine recently asked me if there were any people who had never been displaced. I had no answer to that question. Frankly I don’t know. I know that strife has been common since time immemorial. Strong people have ousted weaker people. That might be true but what is the significance of that? Is that what law is? The strong can do what they want? Too bad so sad? I know that is a common American attitude. They are not as squeamish as the rest of us.  Many of them think they conquered Indian people, as they call indigenous people, so might is right and that is all there is too it. Canada of course has not conquered the First Nations of Canada. The Wet’suwet’en, for example, were not conquered.

Canada has always prided itself on being a country of law. Really that goes back to at least 1763 when the British monarch proclaimed the Royal Proclamation. Canada and its predecessors always wanted a solid legal foundation for the country.  The Canadian government always recognized that without a solid legal foundation, Canadian society would be built on a shaky foundation. I think that was, and is a good idea. Because Canadians wanted a society based on the rule of law they realized they would have to negotiated with the Indigenous people of Canada to share occupancy of this wonderful country. The could not just impose the laws of the recent arrivals. That has made things very interesting in Canada, but I am proud of our country for taking that approach.