Tag Archives: Rule of Law

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.

Visitors and Guests: A Canadian Hey Rube

While I’ve been gone in the United States I have been missing out on an extraordinary incident in Canada that involves many of the things I have been blogging about, and want to blog about going forward. Terrible timing on my part.

As I understand it, Coastal GasLink has obtained legal permits to construct a pipeline in British Columbia. It claims to have the legal right to build that pipeline in accordance with that permit. It has entered into agreements with various parties, including 5 out of 6 Wet’suwet’en  Chief’s and Councils of First Nations that it claims are affected by the pipeline. Yet some Wet’suwet’en, led by Hereditary, or Traditional leaders, object to it. So the Wet’suwet’en people themselves are divided about it. Some of them have tried to stop the development by means of peaceful protest and blockades.

Meanwhile across the country, other First Nations and allies have objected to the development in support of the Wet’suwet’en people and have even blockaded railway lines in other parts of the country. This has resulted in serious hardship to many people in Canada who depend on the railway to deliver supplies to them. At the same time, many businesses and their employees are unable to carry on their businesses or occupations as a result of the blockades, which they say are contrary to law. The say everyone must obey the law. That is what the rule of law means. Everyone must respect the law. After all Canada claims to be a country of laws.

The dispute has generated startling heat from people far from the melee. I think that is because the case involves many issues. And many of those issues are far from resolved and far from simple. It is a genuine Canadian ‘Hey Rube.’

Many are asking who are these Wet’suwet’en and why are they doing these things to us?  Why don’t they obey the law? Don’t they realize the rule of law is the basis of our society? They themselves are divided so how can the rest of us come to an agreement with them, for they are a divided people. Why don’t they get over what happened centuries ago? We all suffered injustice so why don’t they get over it? How can they hold up development that will benefit the entire country and none more so than their own poor communities? Why doesn’t the federal government led by that milksop Justin Trudeau not just enforce the law? Isn’t it really that simple?

I hope to comment on all of these issues and few others besides. I hope in that way to throw some light on the issues.

There are some confusing issues here. 5 out of 6 Wet’suwet’en First Nations have signed “benefit agreements” with Coastal GasLink, the developers of the pipeline. Is that not good enough? Who speaks for the Wet’suwet’en?

To begin with, like other Indigenous groups in Canada, the Wet’suwet’en, like many Indigenous groups in Canada, are governed by both a traditional governance system and elected Chiefs and Councils. That is not as crazy as it may sound to some. Remember, in Canada we traditionally have 3 levels of government: the national government of Canada, the provincial government in which we reside, like Manitoba in my case. As well, we have municipal governments such as the City of Steinbach or village of Plum Coulee, depending on where we live.

As if that is not enough, now, in some cases, we have to add 2 more additional levels of “government.”  First, there is the band Chief and Council system, that was created by federal legislation– the Indian Act.  Although I intend to comment on many features of this law, I just want to point out at this time that this statute was created by the federal government of Canada, more than 100 years ago. It imposed a law on the First Nations of Canada without their consent. They had no input to its formation. In addition many First Nations have traditional or hereditary chiefs who govern in accordance with traditional laws of aboriginal people in those territories not governed by a Chief and Council under the Indian Act. Yes its confusing.

The first question is what gave Canada the right to do that? Then some of the Indigenous people have their own traditional (often but not always hereditary) chiefs.

After all we must all remember that immigrants from Europe (many were invaders from Europe) came to a country that was not empty. Many Indigenous people lived here and they had their own civilizations and even, laws. Many of us try hard to forget that. But this is an uncomfortable fact and it must be acknowledged. The Europeans were a bit like a guest in someone else’s house. Do the guests have the right to take over and impose their system on those who live there? This actually happened to an uncle of mine. A cousin of his visited him in his home in Vancouver for a few weeks and one day my uncle came home from work and found his cousin had torn down a wall in my uncle’s house and was building an addition to the house for himself. I kid you not. It happened. My uncle was not very happy about it, but what could he do?  How would you feel if this happened to you? Perhaps this is just plain Canadian.