Indigenous blockades and the ‘rule of law’ in Canada: Conflicts and…intersections?
Is there common ground between supporters of Indigenous rights and supporters of resource development?
A lot of Canadians are frustrated by the blockades and protests Indigenous people and their supporters have erected in support of the Wet’suwet’en hereditary chiefs who are protesting the Coastal Gas Link pipeline in British Columbia. There have been a lot of calls for the police to enforce the rule of law by more forcefully dismantling the blockades. The police are accused of being derelict in their duties when they delay before acting, such as when the Ontario Provincial Police waited 18 days before dismantling the Tyendinaga Mohawks’ blockade in Ontario.
On the surface, the dispute seems simple. To many settler Canadians, the Wet’suwet’en chiefs and their supporters are violating the law by blocking a pipeline that was duly approved by the government. All the processes were followed, all the legal requirements fulfilled.
Or were they?
There are three big issues here, historical ones that tie right back into what we’re dealing with right now. One is the memory of past police standoffs with Indigenous resisters and the tragic consequences that came with them. Another is the dispute between traditional governance structures such as hereditary chiefs and the band council system set up under the Indian Act. The third is how the ‘rule of law’ is much more complicated than it seems, notably with past Supreme Court rulings.
1. Oka and Ipperwash: Ghosts of the past
There have been multiple confrontations between settler Canadians and Indigenous people over land and resources, ranging from Gustafsen Lake and Clayoquot Sound in British Columbia to Burnt Church in New Brunswick. Two of the most notable, though, are arguably the Oka crisis in Quebec and the Ipperwash crisis in Ontario.
The 1990 Oka crisis centered around Indigenous Mohawk people opposing the Quebec town of Oka’s desire to build a golf course on their sacred lands. The resulting confrontation resulted in a months-long standoff that cost the life of Sureté du Québec officer Marcel Lemay, and cost Quebec taxpayers $180 million. It was also a public relations disaster for the province.
…if the Sureté had gone in guns blazing like some pundits wanted, it could have turned out much more like the incident at Waco in the United States, which ended in 80 deaths.
The 1995 Ipperwash crisis resulted from a dispute between Indigenous Chippewa people and the federal government over land that the Chippewa had been forcefully removed from so the government could use it as a military base. The standoff cost the life of Indigenous protester Dudley George and cost Ontario taxpayers $13.3 million in a public inquiry and $95 million in a settlement. Like Oka, it caused a public relations disaster, this one for Ontario.
Justin Trudeau has been unfavourably compared to his father Pierre for not taking harder action the way Pierre did during the 1970 October Crisis. What the pundits criticizing Justin for this don’t seem to remember is that the Front de libération du Québec kidnapped British trade commissioner James Cross and murdered Quebec Cabinet Minister Pierre Laporte. The current Indigenous protesters haven’t done anything even close to that-and they’d be incredibly stupid to do so. The FLQ’s crimes destroyed any public sympathy they might have had and got them condemned by other separatists, most notably René Lévesque.
With experiences like that, it’s no wonder why Canadian police forces are being so careful in their responses to the blockades. Former Quebec Cabinet Minister Claude Ryan, who was in office during the Oka crisis, wrote years afterward that if the Sureté had gone in guns blazing like some pundits wanted, it could have turned out much more like the incident at Waco in the United States, which ended in 80 deaths.[i]
Besides, if the police should be forceful in dismantling blockades, then shouldn’t they forcefully dismantle non-Native blockades too? Farmers set up blockades in in 1996, 2006 or 2014 to protest The farmers said they were defending their rights to their land and how to use it, but weren’t they arguably violating the rule of law? And what about the Bundy family’s illegal occupations of federal land areas in the United States?
Shouldn’t the police have taken a harder line in removing these non-Native blockades? If not, then why should the police be so forceful with Indigenous ones?
2. Band councils and hereditary chiefs: Accountable to who?
On paper, the band council system set up by the federal Indian Act looks democratic. Unfortunately, they have a big legitimacy problem with some of their constituents. As Kwakwaka’wakw entrepreneur and thinker Bob Joseph writes, “the first thing to know about the Indian Act electoral process is that if you are chief or council, you are elected by your people, but you are accountable to Indigenous and Northern Affairs Canada.”
…their jurisdiction is limited to actual reserve land, not the larger traditional lands Indigenous people might be connected to. And again, their authority is also fundamentally limited, and overridden by Indigenous Affairs bureaucrats.
As noted by Joseph and other Indigenous writers like Chelsea Vowel, the band council system was part of a larger government strategy to undermine traditional Indigenous governance and kinship systems. The First Nations people that had to live under the band council system had no say in how it was designed, much less whether they wanted to live under it.[ii] It could be argued that First Nations reserves are as democratic as municipalities, but Chelsea Vowel also points out that Indigenous and Northern Affairs bureaucrats have far more power over band affairs than provincial officials have over municipalities. Vowel notes that the federal and provincial governments also provide municipalities many different sources of legislative and financial support, but Indigenous and Northern Affairs doesn’t provide anything close for reserves and councils. Even federal officials admit that reserves are underfunded.
For all of the complaints by non-Natives about the alleged lack of financial oversight on reserves, the federal Auditor General noted that reserves have to write dozens of reports for how they spend federal funding-reports that often aren’t read by federal officials. Not to mention that federal officials are far more likely to put a reserve under third-party management than provincial officials are likely to put a municipality under one. How many municipalities have ever been under third-party management in Canada?
Arthur Manuel and Grand Chief Ronald Derrickson point out other legitimacy problems. Band councils get funding and authority from the federal government, and their jurisdiction is limited to actual reserve land, not the larger traditional lands Indigenous people might be connected to. And again, their authority is also fundamentally limited, and overridden by Indigenous Affairs bureaucrats.[iii] All this ties into the conflict between traditional Indigenous governing structures and the federally-created band councils, which Tyler Dawson writes are now playing out between the Wet’suwet’en hereditary chiefs and the band councils.
3. Indigenous title and governance: Neither gone nor forgotten
The common assumption among most settler Canadians is that Indigenous land rights and title no longer matter. What most settler Canadians say and what the courts and the Constitution say are two separate things, though.
Writers such as Pamela Palmater, Rachel A. Snow, Ryan McMahon, Erin Seatter and Jerome Turner, Kate Gunn and Bruce McIvor, and local Member of Parliament Paul Manly, all about how the Wet’suwet’en laws were never explicitly extinguished and were recognized by the Canadian courts. From the point of view of someone like Mikm’aq legal scholar Pam Palmater, the RCMP’s interfering with the Wet’suwet’en’s attempts to assert their sovereignty violates Canada’s rule of law.
…the Crown’s sovereignty, whether that of the federal or a provincial Crown, depends on it being reconciled with its Indigenous counterpart.
The 1996 Royal Commission on Aboriginal Peoples found that Section 35 of the Constitution, which states that “the existing aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed”, recognizes Indigenous peoples’ rights to self-governance, including functioning as distinct orders of government in Canada.[iv] Supreme Court decisions such as Haida, Tsilhqot’in and Delgamuukw (the latter brought forward by the Wet’suwet’en hereditary chiefs) have further detailed these rights. The cases recognize the original governance systems and land rights Indigenous people had before European contact, and that these rights were not extinguished by European contact or the British Crown’s declaring its own sovereignty.
Delgamuukw noted that the Crown’s (modern federal and provincial governments’) interest is subject to Indigenous interest when the it hasn’t been ceded to the Crown through a valid treaty, as is the case for most of B.C. The decision also confirmed that Indigenous people have collective land rights and a proprietary interest in the land they live on that goes beyond hunting and fishing. That interest creates a trust relationship with the Crown where Indigenous people have the right to decide what happens on traditional lands and requires good-faith between them and the Crown. This interest can’t be extinguished under Section 35 of the Constitution without the consent of the Indigenous rights holders, and then only by the federal government. Justice depended on the ‘honour and goodwill’ of the Crown.
Tsilhqot’in further clarified how Indigenous title worked, including Indigenous peoples’ rights to proactively manage the land and determine how it’s used.[v] Tsilhqot’in noted that trying to extinguish Indigenous rights was hardly the only option available to the Crown. It also found that Indigenous governance and title could not just be established on a site-specific location like a particular hunting or fishing area.[vi]
As for the Haida case, it recognized the legal systems and sovereignty Indigenous people had before Europeans came to the Americas. It noted that Crown sovereignty in the Americas had to be acquired by conquest or treaty. Delgamuukw wasn’t entirely clear how the Crown acquired sovereignty over the Wet’suwet’en or Gitskan lands when they were so far away from where the B.C. and Canadian Crowns were exercising sovereignty. The Court then advised that the Crown’s sovereignty, whether that of the federal or a provincial Crown, depends on it being reconciled with its Indigenous counterpart.[vii]
4. Conflicts…or intersections?
Different Indigenous nations would have to resolve their own differences and make their own decisions about when and where they would consent to new developments. Some would say no, others would say yes-as is their right.
So far, it seems like there’s an impasse. Either the Supreme Court’s rulings on Indigenous title and governance are ignored, or energy development in Canada apparently becomes all but impossible.
But is there another way forward?
I wonder whether restoring the traditional modes of Indigenous governance, recognizing them as legitimate and equal participants in Canadian federalism and accepting them as the authorities who speak for their people might be a way to not only clarify the issues around energy development, but resolve many of the larger issues facing Indigenous people in Canada.
Anishinaabe law professor John Borrows has asked why European-derived laws, practices and traditions are allowed to grow and develop, while their Indigenous equivalents are for whatever reason expected to stay frozen in time. The latter can evolve, but Canadian governance needs to give equal recognition to Indigenous as to European-derived law.[viii] George Manuel and Michael Posluns write that Indigenous laws and governing institutions can change and grow with the times.[ix]
That recognition of Indigenous rights and sovereignty has obvious benefits for Indigenous people. It could help alleviate problems like the governance conflicts hampering many communities and provide a stronger basis for economic development. Restoring things that are important to so many Indigenous people would also have a major psychological benefit. Ovide Mercredi and Mary Ellen Turpel wrote about how many Indigenous people feel they have a sacred responsibility to ‘be themselves’.[x]
To that end, as Borrows suggests, Canada’s federal principle could be extended to recognize the governance rights and laws of Indigenous peoples.[xi] On July 1, 2016, Arthur Manuel advocated for the recognition of Indigenous peoples’ land rights and a third order of government in Canada, noting that these Indigenous land areas would still be part of Canada, and Canada itself would still be Canada, when all is said and done. The difference would be that Canada would be moving away from being based on colonial law to being based on human rights law. The mutual recognition of Indigenous people and settler Canadians would be the basis for a new relationship.
Recognizing Indigeous governance and sovereignty that way would require that, as Pamela Palmater wrote, that Indigenous nations would have the right to say no to resource developments happening on their lands. That doesn’t mean that resource development would never happen, though. Arthur Manuel and Ronald Derrickson mention that land development can happen provided it meets the environmental standards and fees required by Indigenous title holders. They cite past examples in Quebec where the Algonquin peoples formed positive working relationships both with the provincial government and the private forestry companies, and in Alberta where the Metis became involved with a deal to convert waste timber into biomass. Manuel and Derrickson also commented that things like property taxes on Indigenous lands would actually be less than what provinces or municipalities collect. In fact, it would be a net value to the Canadian economy and taxpayers. More of the value extracted from Canadian resources like oil and lumber would remain in Canada, and the billion-dollar Ministry of Crown-Indigenous relations would be phased out.[xiii]
And there are Indigenous people who want to participate in resource development. Joseph Quesnel called participating in the energy sector an ‘exercise in self-determination’, while Stephen Buffalo and Ken Coates talked about the increasing involvement of Indigenous businesses in the resource economy too.
These are not new messages from Indigenous thinkers. Writers like Georges Erasmus and Arthur Manuel’s father George Manuel have spoken about the need for Indigenous nations to have ownership and control of subsurface resources, new systems of land tenure and management, the ability to deal with the private sector on their terms, and the ability to ensure private business works to alleviate poverty, not just make profits.[xii] Different Indigenous nations would have to resolve their own differences and make their own decisions about when and where they would consent to new developments. Some would say no, others would say yes-as is their right.
5. An intersection…and a way forward
The Wet’suwet’en conflict is a perfect example of the impasse we’re facing right now. Not only is there the conflict over the construction of the Gaslink pipeline, but there’s the conflict among the Wet’suwet’en themselves. At least one matriarch, Rita George, vehemently opposed the protests. Other people are in support of the pipeline, including people who are afraid to speak out. Other hereditary chiefs and pipeline supporters among the Wet’suwet’en feel that they haven’t been allowed to speak. The hereditary chiefs aren’t without their critics, either-when they signed a memorandum of understanding with the federal and B.C. governments in May, they were criticized for doing so behind closed doors.
Unfortunately, as new information about that memorandum came to light during the COVID-19 crisis, it doesn’t seem to honour the recognition of Indigenous rights and title as recognized by the court rulings mentioned earlier. Mohawk thinker Russ Diabo wrote in the First Nations Strategic Bulletin that the memorandum only recognizes ‘potential’ Indigenous title that could be transferred to the Wet’suwet’en, and that the federal and B.C. governments will only take a narrow legal position in future negotiations. They’d decide beforehand what Wet’suwet’en rights and title would be recognized in any future agreement.
At around the same time that the memorandum was signed, Adam Leith Gollner noted that the Mohawks of Ontario sent the Minister of Indigenous Services, the Prime Minister, the Governor General and even the Queen a letter reminding them that the Silver Covenant Chain was in danger of breaking, and needed to be renewed. The Covenant Chain is a symbol of the relationship that’s meant to exist between Indigenous people and settler Canadians. When the Minister of Indigenous Services met with the Mohawks, they reminded him that what they consider the federal and B.C. governments’ intrusions on Wet’suwet’en land and building the pipeline tarnishes the chain and the rights and relationship it symbolizes. They further cited the Two Row Wampum belt, a symbol of how Indigenous people and settler Canadians are meant to recognize each others’ rights and responsibilities.
While the Two Row Wampum and Silver Covenant Chain are creations of the Haudenosanee (the larger nation the Mohawks belong to) and are not directly connected to the Wet’suwet’en, their principles are still supported by Indigenous thinkers from many other nations. John Borrows[xiv] and George Manuel[xv] both write about how the Two Row Wampum could serve as a principle on which Indigenous people could work positively with settler Canadians.
It wouldn’t only benefit Indigenous people themselves, but non-Native Canadians too. One thing that I’ve noticed about business owners large and small, whether in observing their actions or when they outright tell me, that what they like above all else is clarity and consistency. Enabling Indigenous communities to clearly set out their own rules and protocols for economic development, and the private sector’s obligations therein, would avoid many of the conflicts and confusion we see now over issues like consultation. Indigenous communities would exercise their rights and sovereignty, while businesses would know exactly who they need to talk to and what kinds of approvals they’d need before starting any projects.
Besides that, it would honour the Treaties and the rights that are part of the Canadian Constitution, as recognized by court cases mentioned in part 3 above. One of Canada’s biggest flaws is how often it doesn’t live up to its own rhetoric-and this is an opportunity to correct that. We’d be living up to the principles many of us say we support as Canadians, namely tolerance and mutual accommodation.
Different people have taken different paths up to this point, but this recognition might be an intersection that leads to a better path for all of us.
[i] Claude Ryan, Regards sur le fédéralisme canadien. Montreal, Quebec: Les Éditions de Boréal, 1995. Pages 65–66.
[ii] Chelsea Vowel, Indigenous Writes: A Guide To First Nations, Métis And Inuit Rights In Canada. Winnipeg, Manitoba: Highwater Press, 2016. Pages 264–265.
[iii] Arthur Manuel and Grand Chief Ronald Derrickson, The Reconciliation Manifesto: Recovering The Land, Rebuilding The Economy. Toronto, Ontario: Lorimer and Company, 2017. Pages 118–119, 134–135.
[iv] Arthur Manuel and Grand Chief Ronald Derrickson, Unsettling Canada: A National Wakeup Call. Toronto, Ontario: Between The Lines, 2015. Page 109.
[v] This information on Tsilhqot’in and the previous information on Delgamuukw were derived from Arthur Manuel and Derrickson, Unsettling Canada, pages 112–116, 127, 142 and 224. See also James S. Frideres and Rene R. Gadacz, Aboriginal Peoples in Canada. Toronto, Ontario: Pearson-Prentice Hall, 2005. Page 213.
[vi] Arthur Manuel and Derrickson, The Reconciliation Manifesto, page 109.
[vii] Kent McNeil, “Indigenous and Crown Sovereignty in Canada”, in Resurgence and Reconciliation: Indigenous Settler-Relations and Earth Teachings, edited by Michael Asch, John Borrows and James Tully. Toronto, Ontario: University of Toronto Press, 2018. Pages 293–314. Citation on pages 297–302.
[viii] John Borrows, Recovering Canada: The Resurgence Of Indigenous Law. Toronto, Ontario: University of Toronto Press, 2002. Page 71.
[ix] George Manuel and Michael Posluns, The Fourth World: An Indian Reality. New York: Macmillan Publishing Company, 1974. Pages 135, 203 and 215–219.
[x] Ovide Mercredi and Mary Ellen Turpel, In The Rapids: Navigating The Future Of First Nations. Toronto, Ontario: Viking Press, 1993. Page 21
[xi] John Borrows, Canada’s Indigenous Constitution. Toronto, Ontario: University of Toronto Press, 2010. Pages 194–201 and 209.
[xii] Georges Erasmus’s and George Manuel’s contributions to If I Were Prime Minister, compiled and introduced by Mel Hurtig. Edmonton, Alberta: Hurtig Publishers, 1987. Erasmus’s contribution on pages 78–82, citation on pages 78–79. Manuel’s contribution on pages 186–190, citation on pages 188–189.
[xiii] Manuel and Derrickson, Unsettling Canada, pages 102–103 and 232–233.
[xiv] John Borrows, “’Landed’ citizenship: Narratives of Aboriginal political participation,” in Citizenship, Diversity and Pluralism: Canadian and Comparative Perspectives. Edited by Alan C. Cairns, John C. Courtney, Peter MacKinnon, Hans J. Michelmann and David E. Smith. Montreal, Quebec and Kingston, Ontario: McGill-Queen’s University Press, 1999. Pages 72–86, particularly pages 75–81.
[xv] George Manuel’s contribution to If I Were Prime Minister, page 186.