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.

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.

Resilience

 

For a while in the 18th century it looked as if indigenous people had weathered the storm. Indigenous people are nothing if not resilient. Non-indigenous people often falsely accuse indigenous people of being too married to their traditions. Richard White a Professor of History at Washington University has shown how false this assumption was:

“If the Indian peoples of the eighteenth century had been wedded to tradition, then there would have been no horse nomads on the Great Plains, no Navajo sheepherders or silver workers or weavers. There would indeed be, no Navajos, no Lakotas, nor Muskogees, nor numerous other groups who first began to think of themselves as separate and distinct peoples in the eighteenth and early nineteenth centuries.

In a world of disaster, Indian peoples forged opportunities. In the midst of a population collapse that turned villages into funeral pyres, they created new peoples and new tribes and confederacies. In a world where old ideas seemed incapable of explaining so much change, so much misery, and such staggering possibilities, they spawned prophets, rebels, and saviors in a seemingly unending profusion. Since Europeans could not be banished, Indians sought to include them in a common world and pursued new ways and forms to control and contain them. And, for a while, it all seemed possible.’

In many cases Indigenous people after contacting Europeans, created new traditions, which they passed on to their youth. They adapted. In fact they had to be great adapters in order to survive an onslaught more horrific than that faced by any other people anywhere at any time.

 

Speed of Diseases

 

The speed of the devastation brought about by European diseases on contact with Indigenous people, for which the native people had no inherited defences as the Europeans did, was astonishing. Even the Europeans did not fully appreciate what had happened. They had never experienced anything like it either.

As historian Jay Miller explained, “Again and again, throughout the Americas, as Europeans advanced, they moved into regions already emptied by disease.” That seems incomprehensible. The European diseases travelled faster than they did!

As a result as the Spaniards in the south and later French and English farther north, moved on from ravishing one native community they would arrive at another only to find them already depleted.  As depopulation ensued local indigenous people could not muster enough people to carry on their traditional ceremonies, thus disconnecting the people from their land and hence their source of spiritual sustenance. Political and spiritual leaders were also lost. It left the native communities in disarray and reeling and unable to resist the European invaders.

Jay Miller described the contact between Europeans and Indigenous people like this:

“The end result of the European quest for riches, slaves, and land, was the reshaping of the native social order.  But it was not the direct action of Europeans themselves that produced this vast change. Rather, it was their inadvertent introduction of virulent diseases.  The germs that Europeans carried to the so-called New World visited utter and complete devastation on its indigenous inhabitants. Diseases unknown in the Americas, to which the natives had no immunity, struck whole communities with fierce and heartrending violence.’

What makes this even more surprising and disorienting, was that the indigenous people were so healthy. They were actually healthier  than the European invaders! As Miller said,

“Except for parasites, occasional malnutrition, and minor germs, the native population of the Americas was remarkably healthy. The people lived an open, uncrowded life, knew a great deal about herbal medications, and practiced cleanliness in sweat baths. This was sufficient to deal with most common illnesses. But this way of life proved no match for the germs cradled and nurtured in the filth of European cities and ports.”

Smallpox, measles, and other common European diseases wiped out entire communities before most of their inhabitants had actually seen a European. Whole regions were depopulated.

New diseases have come to plague people in the past, and in fact are doing so now as I write this with the introduction of a new, deadly, and scary disease, namely coronavirus. This has had dreadful effect on people around the world. But  imagine what the effect would be if we were faced with multiple new diseases! This is exactly what indigenous people experienced after contacting European invaders. If an indigenous community survived one deadly epidemic it would soon be met with another. If not small pox, then measles, or whooping cough, or scarlet fever, or influenza. The list of deadly new killers was astonishing.

In the result, some have estimated that 95% of the indigenous people vanished within a century of European contact! Nothing beats that.

The European Invaders brought Invisible and Deadly Weapons of Mass Destruction 

 

Many people think that most Indigenous people died after contact with Europeans because the European invaders were so powerful and the natives were so weak. This is of course grounded in that Original sin. The Europeans assumed they were superior and they have taught this prejudice to those that followed them to the “New World”.  It is commonly believed that the natives of North and South America succumbed because they were primitive, from weak societies, there were so few of them, and they were superstitious. As Ronald Wright said in his book Stolen Continents, “Such explanations explain nothing, even by their own false premises.”

It is true that Europeans came to the “New World” with powerful weapons. Astonishing ships, blades of steel, guns, vicious dogs, and horses.  But those were not their most powerful weapons. Their most powerful weapon was disease. As Wright explained,

“Europe possessed biological weapons that fate had been stacking against America for thousands of years. Among them were smallpox, measles, influenza, bubonic plague, yellow fever, cholera, and malaria—all unknown in the Western Hemisphere before 1492. Somehow they had not made the journey to the New World with the remote ancestors of the American Indians during the last Ice Age. Perhaps they were frozen to death on the way; perhaps they had not yet evolved. Whatever the reason, Native Americans, having had no exposure, had little immunity; they caught the new sickness quickly, and infection was extremely virulent. “The Indians die so easily that the bare look and smell of a Spaniard causes them to give up the ghost,” one eyewitness wrote.  Even today, isolated tribes can be decimated by something as “minor” as the common cold on the first contact with missionaries or prospectors.”

Jared Diamond in his Pulitzer prize winning book, Guns, Germs, and Steel, speculated that the original Europeans who travelled across the land bridge between Asia and North America during the last Ice Age came to the “New World” before they themselves had built up immunities. He suggested that the first people of the Western Hemisphere came before they domesticated animals in Europe and most of these diseases evolved from animal diseases to human diseases. At first they were just as deadly to Europeans as they were much later to Indigenous people of the Americas. It took many millennia for the Europeans to build up immunity. By the time they arrived in the “New World” after 1492, the invaders were not affected by the deadly germs they carried. The people in the “New World” were not so lucky; they were ravaged by those diseases.

Ronald Wright described the onslaught this way:

“It is now clear that Old World plagues killed at least half the population of the Aztec, Maya, and Inca civilization shortly before their overthrow. The sheer loss of people was devastating enough (Europe reeled for a century after the Black Death which was less severe), but disease was also a political assassination squad, removing kings, generals, and seasoned advisors at the very time they were needed most.

The great death raged for more than a century. By 1600 after some twenty waves of pestilence had swept through the Americas, less than a tenth of the original population remained. Perhaps 90 million died, the equivalent, in today’s terms, to the loss of a billion.  It was the greatest mortality in history. To conquered and conqueror alike, it seemed as though god really was on the white man’s side.”

I often wonder why I did not learn this brutal history in school. Was someone trying to hide something?  It seems like a surprising oversight.

The Greatest Holocaust Ever

 

We in the west don’t like to think about it, but the facts are stark.  As Tzvetan Todorov said about the founding of New Spain and Portuguese Brazil “the sixteenth century perpetuated the greatest genocide in human history.” (emphasis added) We are the products of that genocide.  We are the beneficiaries of that genocide! We must never forget that awful, uncomfortable fact, no matter what we might like to do.   Marks Crocker was even more extreme in his description of this fact when he said,

“…when viewed as a single process, the European consumption of tribal society could be said to represent the, greatest, most persistent act of human destruction ever recorded.”

Admittedly, it is not a simple task to count the number of dead caused by European expansionism. Estimates of deaths of Indigenous peoples vary widely.  Yet one thing is clear.  Vast numbers of Indigenous peoples did not survive European arrivals.  Russell Thornton is a serious scholar who has given a lot of attention to this issue He concluded that the Aboriginal population in the Americas had declined by 1900 to about 6% of its size of about 72 million when Europeans first made contact with the peoples of the western hemisphere. He blamed diseases as the primary cause, but warfare and genocide added to the terrible toll.

“Holocaust” is really an appropriate word.  It’s an ugly word but it’s the right word. This becomes even clearer, when one learns that this was accompanied by destruction of more than 75% of the Aboriginal languages and dialects spoken in the Americas when Europeans arrived. As we know now, destruction of language means the destruction of a culture, and with that destruction a people is often rendered limp—ready to roll over and die. It must be remembered that this trend has not stopped. In 2000 the pace of language destructions has continued unabated. In fact it has accelerated worldwide. We will all suffer this loss.  As Canadian scholar, Anthony Hall said, “The disappearance of so many linguistic windows of human understanding is robbing posterity of vital media of thought and articulation to convey, perpetuate, and augment our inherited cultural richness.”

We in the west are now quick to condemn genocides in Germany, Rwanda, Serbia, Kosovo, Cambodia, and other places. We should not forget what happened in our homeland. These were war crimes, ethnic cleansings, and crimes against humanity that have rarely been acknowledged, and have never been punished or brought to justice.

Canada’s Truth and Reconciliation Commission danced around the issue of genocide. It called the results of the Residential schools “Cultural genocide”.  I find this concept disconcerting. What is cultural genocide as opposed to genocide?

At first, the Canadian Museum for Human Rights in Winnipeg did the same thing. It used the similar expression “cultural genocide” as well.  I always felt that it used this expression rather than the harsher expression “genocide” because it did not want to offend its reluctant sponsor, the Conservative federal government of Canada led at the time by Stephen Harper.  Later, after that government was replaced by the Liberal government led by Justin Trudeau, it referred to it as “genocide.”  I believe that this is now its official position.

Anthony Hall does not shrink from describing the actions of European conquerors as genocide. He described it this way,

“In North America in particular the ethnic cleansing of Indigenous peoples has been so systematic, longstanding, and pervasive that it has been rendered all but invisible, except to the victims or their survivors and to those with the honesty and fortitude to face the stark evidence of the historical record.  One marker of the extent and terrible effectiveness of this genocidal assault is Thornton’s estimate that, between 1492 and 1900, the number of Indians and Inuit in the region covered by Canada and the United States dropped from around 7 million to fewer than 400,000.”

We, who now live in North America, are the beneficiaries of that genocide.  How comfortable are we about that? Most of us never admit it. Most of us never even think about it. Colonization was made possible by genocide. That colonization continues to this day. Our society is based on that.

False Premises Lead to False Conclusions

As I have been saying the false European sense of superiority Europeans had over the indigenous people they found in the Americas provided a poor basis for their continuing relationship. Racism is never a sound basis for a good society. It really is that simple.

First, that attitude led to the Indigenous people and their cultures being crushed. The consequence was a stubborn sense of superiority and deep vicious racism. As historian Alvin Josephy Jr. said,

“Patronization, condescension, policies of forced assimilation–the determined attempt to stamp out Indianness–continued on through the first part of the twentieth century. And all were manifestations of the white American’s deep-rooted prejudice, sense of superiority, and belief that little in the Indian’s world was worth saving, or even knowing about…if they thought about Indians at all, their thoughts were dominated and colored by inherited feelings of superiority and new stereotypical images of contemptible “drunken Indians,” “lazy Indians,” and “Indians who don’t pay taxes like the rest of us.”

This is exactly what I have called the Original Sin. Sadly, in both Canada and the United States such longstanding biases continue to plague their societies. Such racism has had a strongly detrimental effect on both indigenous and non-indigenous people. That is actually the inevitable consequence of racism, though often it is unacknowledged.

For example as I write this in Canada there is another confrontation between indigenous and non-indigenous people, this time over a pipeline in British Columbia, which confrontation, is benefiting no one and harming many. A better understanding between them would help everyone in the dispute.

As Josephy Jr. said,

“It has long been clear to many persons that the whites’ false and stereotypical thinking has done great harm, not only to the Indians, but also to those who  conquered and dispossessed them. From the Indians’ point of view, the harm lies, not only in the irretrievable loss of so many of their people, but also in the continued ignorance and misunderstanding of non-Indian Americans that too often deny Indians support in opposing injustice and achieving their rightful place in American society. The whites, meanwhile, by denying the value of Indian histories and cultures, have turned their backs on thousands of years of Indian learning , and experience with American land., and on the enormous richness and diversity of Indian spiritual and creative life.

From the vast lore of Indian mythology and story that inspires present-day Indian painters, authors, musicians, poets, dramatists, dancers, jewelers, film-makers, sculptors and other creative artists, to the practicality of centuries-old Indian knowledge in managing fisheries, and forests and even deserts, the Indian world is full of lessons for the modern-day world. Not to recognize this enormous resource is both foolish and terribly wasteful. Indeed, not to understand the reality of Indian history is not to understand ourselves as Americans. Nor can anyone claim to know American history without a full and undistorted appreciation of Indian history.”

And as I have said over and over again, this is of course equally applicable to Canada and its indigenous people. It is difficult now to imagine how much better our countries would be, had the relationships between Europeans and indigenous people been based on respect, rather than false superiority.

Conquistadors

 

The meeting of European invaders and the Indigenous people of the western hemisphere was one of the most profound events in the history of human society on our planet. Historian Jay Miller described the effect of that contact on the inhabitants of the Western Hemisphere this way:

“The arrival of Europeans in the Americas brought to the native peoples change of a kind that went far beyond their capacity to understand, or even imagine–unprecedented change, terrible change, havoc and death.  South of the lands later to be known as the United States, powerful empires fell. And millions died from the scourge of epidemic diseases unleashed however unintentionally, by the first conquerors, the Spaniards.’

The Spanish were incredibly successful in plundering Mexico and Peru. Eventually these Spaniards had only one goal–riches. Harvesting souls came later. Bringing civilization came even later and then mainly as an excuse for plunder–a whitewash.

As Jay Miller said,

“For, at least initially, extracting wealth–easy wealth–was their prime aim in the new lands they had encountered. Anything of value they laid their eyes on, they snatched, looted, and pillaged.”

When the European invaders and their deadly diseases laid low huge swaths through the native populations it had an overwhelming effect on the natives. It was absolutely devastating and the few survivors left to deal with the Europeans had to do so without their leaders, most of whom had died.

Miller described the effect this way:

“The old order could not cope with the onslaught. Finding themselves largely leaderless, and therefore severed from their most powerful access to the gods, at a loss to account for the thousands of friends and families dead from strange and disfiguring diseases, the survivors suffered a profound crisis, both of shock from immediate, multiple loss, and of faith.  Their world destroyed, they would need time and radical change before some semblance or their traditional community life could be rebuilt.”

Have any other people suffered such absolute devastation? It is not surprising that the effect has cascaded through the generations ever since.