When I hear about the arrest of peaceful land protectors, I think about all the times I’ve heard that colonialism happened “a long time ago.” This is 2019. It never ended. When I see colonial violence in action I grieve not only for those brave people who stand peacefully as they are overwhelmed on their own lands, but also for future generations who will be forced to pay for our hubris.
-Hayalthkin’geme (Carey Newman), OBC, MSM, Audain Professor of Contemporary Art Practice of the Pacific Northwest at the University of Victoria
The ongoing “colonial violence” that Hayalthkin’geme speaks to is not only manifest in Wet’suwet’en territory as hereditary leaders, community members and supporters are arrested for defending those territories. Colonialism remains embedded in the legal, political and economic context of Canada today.
By colonialism, I mean the policy or practice of “acquiring full or partial political control” over another nation, “occupying it with settlers, and exploiting it economically.” Colonialism, in this sense, is alive and well in Canada today in the lived experience of Indigenous nations.
This is the case despite stated political commitments to “reconciliation,” constitutional recognition of Aboriginal and treaty rights, and past court victories by Indigenous peoples.
Reconciliation has been said to be “about establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.” The Supreme Court of Canada has also held that: “The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982.” Yet, reading two recent court decisions related to pipeline projects and watching political debate on these matters unfold, a different, less palatable definition of “reconciliation” appears to be in play.
The Cambridge Dictionary reminds us that to “reconcile” yourself to something can also mean “to accept a situation or fact although you do not like it.”
The unquestioned assumption is that Indigenous peoples must “reconcile” themselves to the Crown’s assertion of sovereignty and to the incursion of resource projects in their territories. This assumption is evident in two recent court decisions: Coldwater First Nation v. Canada (Attorney General) and Coastal GasLink Pipeline Ltd v Huson. The former case was a judicial review of the federal re-approval of the Trans Mountain pipelines and tankers project brought by 10 First Nations in the Federal Court of Appeal, the latter the BC Supreme Court decision granting an interlocutory injunction order to Coastal GasLink which set the stage for recent arrests in Wet’suwet’en territory.
At paragraph 52-54 in the Coldwater decision, the Court opines that:
[R]econciliation does not dictate any particular substantive outcome. Were it otherwise, Indigenous peoples would effectively have a veto over projects such as this one. The law is clear that no such veto exists . . . . At some juncture, a decision has to be made about a project and the adequacy of the consultation. Where there is genuine disagreement about whether a project is in the public interest, the law does not require that the interests of Indigenous peoples prevail.
…[I]imposing too strict a standard of “perfection”, “reasonableness” or “meaningfulness” in assessing whether the duty to consult has been adequately met would de facto create a veto right.
The jurisdiction and legal responsibility of Indigenous nations to make decisions about their territories is absent in this analysis: sole decision-making is presumed to rest with the Crown. Despite constitutional protections for existing Aboriginal title and rights, they must give way to the “public interest.” Further, no particular substantive protection for these rights is required, merely consultation efforts, which need not be “too” meaningful lest a project be blocked.
In a further twist in the Coldwater case, the Federal Court of Appeal, relying on Canada (Minister of Citizenship and Immigration) v Vavilov, deferred to Cabinet’s own assessment of whether it had fulfilled its duty to consult and accommodate. On that basis, the Court went on to conclude that Cabinet acted reasonably in re-approving the pipeline.
Yet, as one commenter noted: “How likely is it that a government would judge it had failed to comply with its constitutional responsibilities towards First Nations and therefore refuse to approve the pipeline? Is its self-judgment objective and disinterested?” This is particularly the case in this instance, where Canada actually owns the project in question.
Judicial failure to recognize Indigenous law and jurisdiction is even more apparent in the Coastal GasLink decision. The Court summarizes the position of the Wet’suwet’en defendants in that case as follows:
 The defendants assert that the Wet’suwet’en people, as represented by their traditional governance structures, have not given permission to the plaintiff to enter their traditional unceded territories in which Sections 7 and 8 of the Pipeline Project are located. They submit that the plaintiff is in their traditional territory in violation of Wet’suwet’en law and authority and their efforts in erecting the Bridge Blockade were to prevent violation of Wet’suwet’en law. The defendants assert that they were at all times acting in accordance with Wet’suwet’en law and with proper authority.
Despite case law to the contrary, Madam Justice Church finds that: “While Wet’suwet’en customary laws clearly exist on their own independent footing, they are not recognized as being an effectual part of Canadian law.” As my colleague, West Coast staff lawyer, Gavin Smith has written in commentary on this case:
It is not enough to say that an Indigenous nation must simply prove its title and rights in Court and then its laws will become “effectual.” As noted on this blog and elsewhere, the Wet’suwet’en are a classic example of how the Crown and the Canadian legal system have overseen a long-term and continuing failure to give effect to the promised recognition of Aboriginal title and Indigenous law.
After millions of dollars spent on some 13 years in court, including 318 days of presenting evidence at trial, the Wet’suwet’en together with the Gitxsan won a landmark title victory in the Supreme Court of Canada’s 1997 Delgamuukw decision. The Court ordered another trial due to the trial judge’s improper rejection of important Indigenous evidence, but explicitly encouraged good faith negotiation rather than further litigation.
More than two decades later, it is undeniable that the provincial and federal governments (i.e. the Crown) have not done enough to advance such negotiations. . . . It is manifestly unfair to expect the Wet’suwet’en, and Indigenous nations across the land, to continue assembling the overwhelming financial, organizational and emotional resources needed for marathon litigation before their laws and jurisdiction will be taken seriously as required under Canada’s constitution.
In this context, the implication of the CGL decision is that the Indigenous laws underlying Aboriginal title and rights are left in an indefinite state of limbo, with their practical application in the Canadian legal regime denied.
Ultimately, the Court concluded that the economic benefits of the Coastal GasLink project represented a public interest that outweighed any harm to Wet’suwet’en governance rights or the reconciliation process that would result from granting the injunction. The results of this decision are now playing out across the country.
Where does this leave the project of reconciliation, said to be so important to the federal and British Columbia governments?
“Reconciliation is dead” has become a rallying cry heard from Unist’ot’en to the Victoria Legislature lawn, and across the country. Some have argued that it is only “government reconciliation” that has died, when one considers the people of all walks of life who are standing in solidarity with the Wet’suwet’en.
I do not personally believe that the possibility of truth and reconciliation has passed. But certainly, the respect, accountability and justice urged by the Truth and Reconciliation Commission (TRC) are absent when the Wet’suwet’en are criminalized for occupying and defending the territories they have governed for millennia. They are equally absent in Coldwater, where the Court levels unsubstantiated criticism at Indigenous litigants for (unspecified) conduct that is said to have “interfered with Canada’s efforts to consult and accommodate.” This, because of their good-faith efforts in a demanding and accelerated Crown-driven consultation process to bring forward their own truth, supported by science, about the unacceptable risks of the Trans Mountain pipeline and tankers project.
It is clear that expecting Indigenous peoples to “reconcile” themselves to denial and disrespect of their laws and jurisdiction cannot engender the mutual respect and healing envisioned by the TRC. Federal and provincial governments must abandon this impoverished view of “reconciliation” if any progress is to be made.
Fortunately, the TRC outlined a series of Principles of Reconciliation that offer a pathway forward. First among these, according to the TRC: “The United Nations Declaration on the Rights of Indigenous Peoples is the framework for reconciliation at all levels and across all sectors of Canadian society.”
The UN Declaration, which both Canada and BC have committed to implementing, recognizes
the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources.
It affirms, among other minimum human rights standards, that “Indigenous peoples have the right to self-determination” (Article 3); “to maintain and strengthen their distinct political, legal, economic, social and cultural institutions” (Article 5); “to own, use, develop and control the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired” (Article 26); and, “the right to the conservation and protection of the environment” (Article 29).
Particularly apropos of the current Canadian context, the UN Declaration also affirms that “Indigenous peoples shall not be forcibly removed from their lands or territories” (Article 10) or subjected to violence contrary to their “collective right to live in freedom, peace and security as distinct peoples” (Article 7(2)).
Foundational to current pipeline conflicts, Article 32(2) further requires that:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.
Simply put, the blockades and conflict we see across the country today can be traced to the failure of Crown governments to meet the international legal standard of free, prior and informed consent from Indigenous peoples – consent that must be given through the governance institutions recognized by the Indigenous peoples themselves as a matter of their inherent jurisdiction and laws.
The expectation that Indigenous self-determination and rights must give way to enable resource development is only “reasonable” through the colonial mindset that continues to be reflected in Canadian political and legal institutions. The UN Declaration presents a framework for a different pathway forward. Canada and BC would be well-advised to take it.