It is time for a renewed, nation-to-nation relationship with First Nations peoples, one that understands that the constitutionally guaranteed rights of First Nations in Canada are not an inconvenience but rather a sacred obligation.
— Canadian prime minister Justin Trudeau speaking to First Nation leaders, 8 December 2015
In Part 1, it was noted that Canadian politicians repeatedly claim that Canada is a nation bound by the rule of law.
People can claim whatever they want; that does not make the claim true. Likewise anyone can pooh-pooh a claim. But that doesn’t refute the claim. Bogus claims are revealed by providing sufficient evidence to counter the deceit.
Although there are myriad examples to adduce that Canada is not a country bound by the rule of law, this article will focus on one current example.
It is important to first acknowledge the irrefutable fact that Canada is a nation established through the denationalization of other states. This was wrought by genocide and dispossession. ((See Bruce Clark, Ongoing Genocide caused by Judicial Suppression of the “Existing” Aboriginal Rights (2018). Review; Bruce Clark, Justice in Paradise (McGill-Queen’s University Press, 1999); Splitting the Sky with She Keeps the Door, The Autobiography of Dacajeweiah, Splitting the Sky, John Boncore Hill: From Attica to Gustafsen Lake (John Pasquale Boncore, 2001). Tamara Starblanket, Suffer the Little Children: Genocide, Indigenous Nations and the Canadian State (Clarity Press, 2018). Review; Tom Swanky, The Great Darkening: The True Story of Canada’s “War” of Extermination on the Pacific plus The Tsilhqot’in and other First Nations Resistance (Burnaby, BC: Dragon Heart Enterprises, 2012). Review; James Daschuk, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life (University of Regina Press, 2013); Robert Davis and Mark Zannis, The Genocide Machine in Canada (Black Rose, 1973).))
Canada’s Respect for the Rule of Law and the Wet’suwet’en
Located in the central interior of the province colonially designated British Columbia are the people of the Wet’suwet’en First Nation. Coastal GasLink considers this terrain as the most suitable to lay a pipeline. This, though, has not received the consent of the Dinï ze’ and Ts’akë ze’ (Hereditary chiefs); in fact, the proposal from Coastal Gaslink was unanimously turned down.
However, a recent Supreme Court of BC decision granted an injunction permitting pipeline corporations to enter the unceded territory of the Wet’suwet’en. Consequently, the Wet’suwet’en erected a second checkpoint farther down the road on Gitdumt’en Territory. The injunction was then expanded to encompass the entire forest service road, including the second checkpoint.
The below Real News network report makes clear that the legal process was a sham.
The Wet’suwet’en interpret the 1997 Supreme Court of Canada Delgamuukw v. Queen decision as conferring them the right to meaningful consultation which they say has not happened in the current case.
Freda Huson, the Spokeswoman for the Unist’ot’en stated,
The plaintiffs in the landmark Delgamuukw Supreme Court of Canada case are the Hereditary Chiefs and their members. Government and Industry are breaking their own laws when they choose to only consult with Indian Act band councils. The propaganda writers for the Pacific Trails Pipeline like to say that they have 15 First Nation People’s support, when in fact they have only been talking to Indian Act communities. That has to stop. This struggle to protect our lands is not about holding out for financial gain. It is about protecting our lands from destructive practices from industry. Our actions will not only benefit our future generations but everyone’s future generations.
The United Nations Declaration on the Rights of Indigenous Peoples
Initially, Canada was among four Anglo-Saxon settler-colonial countries that refused to sign on to the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2007 — the others being Aotearoa (New Zealand), Australia, and the United States. 144 countries did sign. Finally, Canada agreed to adopt the UNDRIP in 2016. However, the UNDRIP still awaits full implementation, and that process has its skeptics.
Mi’kmaq lawyer Pam Palmater sees the federal government as mostly talk and little action.
“Canada is fooling people when it says it unconditionally supports UNDRIP,” said Palmater.
The UNDRIP has already had legal implications elsewhere. On 18 October 2007, the Supreme Court of Belize ruled in Cal v. Attorney General that the national government must recognize the indigenous Mayans’ customary tenure to land and refrain from any act that might prejudice their use or enjoyment of this land. This reversed the Belize government’s 2001 decision to give rights to resource industries on traditional Mayan lands thus preventing Mayans from farming.
The Chief Justice of Belize, Abdulai Conteh, stated that the Mayan people had preeminent rights to their land. Conteh held that Mayan rights to occupy their lands, farm, hunt and fish pre-date European colonization and remain currently in force.
Conteh also cited Delgamuukw v British Columbia, “Indigenous title is now correctly regarded as sui generis.” The fact of Indigenous peoples having inhabited a land over time had given them land title rights.
There are a number of articles in the UNDRIP that seem relevant to Indigenous peoples’ right to inhabit the land free from disturbance. ((See, e.g.,
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 7
2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.
Article 7
2. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.
Article 8
2. States shall provide effective mechanisms for prevention of, and redress for:
b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
Article 18
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
Article 25
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.))
Given the recent legal machinations against the Wet’suwet’en, among several outstanding issues dogging the federal government in its responsibilities and relations with First Nations, one would tend to regard the Trudeau government’s pronouncements about guaranteeing the rights of First Nations as a “sacred obligation” with deserved heavy skepticism.
It would seem that the same skepticism is deeply deserved for assertions of Canada’s dedication to the rule of law.
Meanwhile, the five Wet’suwet’en clans are reinforcing the second checkpoint while awaiting the expected police assault in supposed adherence to the rule of law — a rule of law imposed by settlers colonialists over a people who have never surrendered land they have lived on since time immemorial.
A 29 December 2018 email from the Unist’ot’en Solidarity Brigade warns, “When, not if, the RCMP move against the checkpoints it is not just First Nations land defenders in their sights – it is you, your family, the entire biosphere they will be attacking.”