Tuesday, February 18, 2020

To All You "Rule of Law" Progressives.

It doesn't take much to peel back the veneer of some self-styled "progressives." The Wet'suwet'en controversy makes that clear. In reality, most of us know Sweet Fanny Adams about our First Nations, our history of dealing with them, and their rightful place in Canada.

Among the gaggle of diverse interests trying to seize the narrative you will commonly hear the "rule of law" bullshit bandied about.

Former CBC journalist, Jennifer Ditchburn, is now the editor-in-chief of Policy Options, the online magazine for the Institute for Research on Public Policy. Her article, The Breathtaking hypocrisy of the howls for "rule of law," published yesterday, should set straight your misconceptions.

In British Columbia what we're seeing in these protests is the culmination of more than a century of quite deliberate indifference on the part of the colonial and provincial governments to the prior, and superior, rights of First Nations. Why negotiate when you can just take their lands?
Treaty negotiations did not take place in vast tracts of British Columbia – a direct affront to the rule of law. “Under international and British law at the time of colonization, unless Indigenous people were conquered or treaties were made with them, the Indigenous interest in their land was to be respected by the law of the European colonizing nation,” historian and lawyer Bruce McIvor explained last week.

Politicians and pundits have been calling for the rule of law to be respected, given the ongoing protests in BC and in southern Ontario in support of the Wet’suwet’en hereditary chiefs opposing the Coastal GasLink project. The protests have stopped CN and Via Rail trains from running in parts of Canada. But let’s set aside for a moment the question of the legitimacy or illegality of those protests. Where have all these influential voices been on the much larger rule of law question, the one that set the stage for these conflicts in the first place?
We also ignore that the courts have acknowledged repeatedly that Indigenous laws and rights are part of the rule of law in Canada. “Indigenous legal traditions are among Canada’s legal traditions. They form part of the law of the land,” Federal Court Justice S├ębastien Grammond wrote in a 2018 decision
National newspaper columnists have called the Wet’suwet’en system of governance an “oligarchy” and based on a “feudal genealogy,” but the Courts (which help shape the rule of law) haven’t shown that disdain. The Supreme Court has acknowledged the limits of the Indian Act-prescribed structures when considering the holders of Aboriginal title – and dealt specifically with the Wet’suwet’en hereditary chiefs’ authority in the 1997 Delgamuukw decision. In the Supreme Court of British Columbia Tsilhqot’in decision, Justice David Vickers put it succinctly: “While band level organization may have meaning to a Canadian federal bureaucracy, it is without any meaning in the resolution of Aboriginal title and rights for Tsilhqot’in people.”
Canadian law when it comes to Indigenous communities has been a slippery, oppressive thing throughout the country’s history. Treaties are the law, but they are routinely violated. Laws were invented to erase Indigenous culture. It took until last year for the federal government to finally remove the legislated gender discrimination from the Indian Act. 
In British Columbia, the type of land title negotiations that created the Douglas treaties on Vancouver Island (themselves the subject of contention) were abandoned and unilateral settlement occurred on vast tracts of Indigenous land elsewhere in the province. The rule of law and the “honour of the Crown” were disregarded. In 1997, the Supreme Court of Canada advised the Crown that it had a “moral, if not a legal, duty,” to settle the question of title in order to facilitate “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.” But today, delving into those fundamental issues around land title and Canada’s fundamental violations of the rule of law seems to exhaust the stamina of many Canadian political and thought leaders.
Don't blame the Wet'suwet'en or other First Nations protestors who have come out in solidarity. The path they are on is one of our choosing. It is a path of our making. The "rule of law" is meaningless when the rules are applied selectively, to only one side, at the choosing of the other. That, is our game.

Even progressive voices in the States know what this is about. Consider this recent article in The New Republic:

The response from Canadian officials has been predictable: RCMP officers have threatened journalists trying to cover the raids. Horgan, who also spoke to the Assembly of First Nations two months ago and claimed to understand that “reconciliation is not just words,” has decried protest efforts. Talking about a blockade of a government building, Horgan said that that “people were denied access to their workplace, not because of their political views but because they were seen as symbols of government—that’s unacceptable.” 
Conservative Leader Andrew Scheer called upon those enforcing the blockade to “check their privilege,” an attempt to reframe the issue by appealing to those affected by the rail closures. Deputy Prime Minister Chrystia Freeland, after squeezing past protestors to enter the Halifax City Hall, said that “it is very important for all people in Canada, including government officials, to be able to go about their rightful and legitimate business.” Prime Minister Justin Trudeau, currently on a trip in Africa, told reporters in Senegal that while it’s crucial to “respect the right to freely demonstrate peacefully,” Canada is a “country with a rule of law and we need to make sure those laws are respected.”
They are setting a trap, trying to pit Indigenous land defenders against the non-Indigenous population and claiming themselves as allies to the “working man” or whatever false story they want to tell. But the story is slipping away from them, if slowly.
“[The media is] starting to talk about our territories as unceded sovereign territories and land defenders and Wet’suwet’en people and governance, and not talking about us as if we’re just protestors off the street, which I think was one of the biggest problems with how mainstream media has been covering this story,” Wicksham said of how coverage of the anti-pipeline movements has recently shifted. She added that she felt as though the media reports in the past have too often focused on the divisions within the Wet’suwet’en community over whether to allow the CGL pipeline, instead of centering the fact that their traditional governance structure is being ignored by Canadian politicians.
Defenders of the Land
The Wet’suwet’en, along with other Indigenous land defenders across North America, have posed a question to their non-Indigenous neighbors: Who is being more unreasonable, the Indigenous people enforcing their sovereignty and history on the land, or the government and extractive companies literally cooking the planet?


rumleyfips said...

I just read the Ditchborn piece and she hit it out of the park.

Years ago , Roy MacGregor wrote about the Algonkian ownership of Ottawa. I think the gentleman who wrote , year after year , to Queen Victoria was named Constance Pleasance(sp?). He didn't ask for anyone to move but wanted fair rent; he never got a cent.

I couldn't find this with Google. Any ideas.

rumleyfips said...

Sheer-idiocy want those Mohawks off the tracks. Six nations were staunch military allies of the British during both the American revolution and the war of 1812 . They were awarded land grant when they had to leave New York Province in the 1780's. For the next couple of centuries they were moved from their land again and again as Europeans wanted it for farms and military bases and golf courses. During the process they were arrested, beaten and murdered. All good deeds are punished.

The Disaffected Lib said...

It's dispiriting to see how many from our 'progressive' ranks are spewing this'rule of law' garbage.

We have made such an obscene mockery of the 'rule of law' when it comes to the rights of First Nations that it's disgraceful.

Anonymous said...

Not a bad article at all by Ditchburn.

The gold standard has to be the article in The Tyee by Katie Hyslop, in my opinion. It's better written and less "dense" than Ditchburn's, making it easier to comprehend. I believe you may have mentioned it before.



The Disaffected Lib said...

I read it, BM, but I don't think I mentioned it. In any case you're right.

Trailblazer said...

Just how do you recommend we resolve this issue?
Whos laws will decide the fate of all parties involved?

For sure there are major faults by the colonists so do the first nations tell you and I to piss off back to the UK or wherever?

We, the colonists, are not dealing with a unified nation but many nations .
Add to that the first nations are not dealing with a unified Canadian government but a federal government and very very different provincial governments.

Until all parties can agree upon a starting point we re going nowhere.


JimInBC said...

In 2004 in Haida Nation vs British Columbia the Supreme Court of Canada ruled the province has a duty to consult and (potentially) accommodate "when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it."

The province has known about title assertions for decades. Planning for the facility and pipeline has been going on for more than a decade. The province obviously can't say they didn't know about the asserted claim and a project that "might adversely affect it".

The "legal responsibility for consultation and accommodation rests with the Crown." It cannot be delegated to a third party.

Consultation in good faith is essential. That consultation may establish a duty to accommodate. "Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests."

There's been lots of reporting about CGL's agreements with band councils. But nothing about provincial consultation. One can only assume that even though it's required by law it never happened.

Demands from some that the rule of law be respected while those same parties disobey the law are a textbook illustration of injustice. I expect better from out government.

The Disaffected Lib said...

What you're asking, TB, is how do we unfuck 150 years of manipulation and outright theft. Good question. I suppose you might begin by admitting you've got a problem, one of your own making. Then you sit down and sort things out, nation to nation as prescribed by the Supreme Court of Canada.

We have it in our heads that, if we do this, they'll have one up on us and they'll treat us in the same way we have treated them. I don't think they want that and I'm sure they couldn't if they did.

We could begin by recognizing First Nations sovereignty (again, as defined by the SCC) and acting as though that meant something. That might include not sending mounties in combat gear with assault rifles and backup snipers onto their land. Or, as at Gustafsen Lake, with a platoon of armoured fighting vehicles to unleash 77,000 rounds of rifle fire at them. Yet we fancy ourselves the 'reasonable' ones.

I didn't practice in this area of law but my last firm had a number of prominent experts in this field who represented nations such as the Haida and Inuit. What I gleaned from them is that these First Nations only wanted a fair deal, fairly negotiated.

The First Nations of Fort Chip went along to get along and wound up with a 'cancer village' for it. Even when that was documented, the Alberta government turned its back on them.

Or, we could go "old school" and take their lands by conquest. Gawd knows we've got the attitude for it.

Paul Martin knew we were headed for trouble. That was why he negotiated the Kelowna Accords that failed to become law before Harper and Layton tanked the Liberal government. I had hoped that the Dauphin would make reviving that pact a top priority on taking office in 2015. Turns out that wasn't to be the case.

The Disaffected Lib said...

Jim, I think industry and government have been using the 'divide and conquer'approach to First Nations, a neo-colonialist tactic. Nikiforuk wrote at length of this last week in The Tyee. Go to the band councils, present them a deal on a "we're going ahead with you or without you" basis and then, having co-erced their acquiescence, use that to hammer the legitimacy of the hereditary chiefs, notwithstanding the finding of the SCC that band councils are an administrative creature intended, not to speak for the nation itself, but to address the band's needs in its dealings with Ottawa's bureaucracy. White people hear "elected council" and they discard the constitutional settlement of First Nations into the waste bin as irrelevant. If nothing else, the Wet'suwet'en uproar has shown the breadth of mistaken beliefs among the non-First Nations population.