TENSE INDIGENOUS PROTESTS PUT SPOTLIGHT ON OTTAWA
JURISDICTIONAL ISSUES A RECURRING THEME IN 2020, WITH EYES TURNING TO PRIME MINISTER
As 2020 began, last winter, the Supreme Court of Canada ruled on the case of two Innu First Nations who opposed a mining project that straddles the Quebec border with Newfound‑ land and Labrador.
The case came out of Quebec’s court, where NL had failed in its legal effort to strike the parts of the claim that relate to land in NL, claiming a lack of jurisdiction.
A key finding of the top court’s majority decision to dismiss NL’S appeal was that Indigenous rights are not like property rights or personal rights, which are con‑ strained by provincial borders. Rather, they are special sorts of rights that predate Canada and apply evenly across provincial lines.
The fact that Canada is divid‑ ed into provinces, with different court jurisdictions, “should not be permitted to deprive or impede the right of Aboriginal peoples to effective remedies for alleged violations of these pre‑existing rights,” the court ruled.
You would hardly know it from the Indigenous land and resource disputes that went unresolved across Canada through 2020, even as they were overshadowed by the COVID- 19 pandemic.
The year began with a show‑ down in Western Canada, in Wet’suwet’en territory in northern British Columbia, where a Coast‑ al Gaslink pipeline is being built to the sea. The Royal Canadian Mounted Police moved in to arrest people blocking a service road. Prime Minister Justin Trudeau called it an issue of international law, a matter to be resolved “na‑ tion- to- nation.” Protests in soli‑ darity were spreading across the country, including a rail blockade in Ontario, just as the pandemic’s first wave began in March.
More recently, in Nova Scotia, the lobster fishery in the Bay of Fundy saw arson and physical confrontations when commer‑ cial workers in the off season pro‑ tested the Sipekne’katik First Na‑ tion’s launching of lobster boats. The disagreement was over the established legal right of Mi’kmaw people to a “moderate livelihood” from the fishery, with little in the way of clear regulatory guidance about what that means.
And in Caledonia, Ont., a dis‑ pute over housing development on land claimed by the Six Nations of the Grand River, flared up again in summer, without resolution. Indigenous groups occupied an area of the development in midJuly and set up an encampment where they remain, more than 150 days later. A burnt-out school bus blocks one of the main roads near the protested site.
The land developer recently filed a class-action lawsuit against the province of Ontario, on behalf of people economically harmed by the protest, including the pro‑ posed representative plaintiff, who owns a Pita Pit franchise, al‑ leging “misfeasance in a public of‑ fice and for negligence respecting, among other matters, blockades erected by protesters.”
The chairman of the local po‑ lice services board has also urged the Ontario Provincial Police to change its long- standing policy on response to similar protests, the Framework for Police Pre‑ paredness for Indigenous Critical Incidents, a document created af‑ ter the Ipperwash inquiry of 2007 into the police shooting of a pro‑ tester — even as he walked back and apologized for the board’s un‑ founded accusation in September that the protesters were “terror‑ ists.”
A common theme in all of this is that, as tense protests develop, all eyes turn to Ottawa, where Prime Minister Justin Trudeau, after five years in government, is gathering a collection of missed milestones on Indigenous reconciliation, notably including on clean drink‑ ing water, but also on land and re‑ source rights.
There are other factors. In B. C., for example, there were competing claims of legitimacy between elected and hereditary chiefs. There is also an inter‑ national treaty environment, in which Canada knows the eyes of the world are on it.
In December, the Liberal gov‑ ernment introduced a bill that would require all Canadian law to conform to the United Nations Declaration on the Rights of In‑ digenous People.
These problems are perennial. It was 15 years ago that three Hau‑ denosaunee women began the occupation of a housing develop‑ ment in Caledonia, Ont. They were joined by others, and ordered out by a court in March. The Ontario Provincial Police acted in April, meeting resistance, including the setting up of barricades, mis‑ chief and vandalism. More than 50 charges were laid. By June, the province had bought Douglas Creek Estates. In 2011, it settled a class action by setting up a com‑ pensation fund.
The Nova Scotia fishery has a similar history of high- profile events and false conclusions. This year’s conflict proved that even a decision of the Supreme Court of Canada could not settle the mat‑ ter, as the 1999 ruling in the case of Donald Marshall, Jr. appeared to do by setting out the right of First Nations to fish for a “moder‑ ate livelihood,” which the federal government has declined to de‑ fine.
Justice Minister David Lametti was optimistic that the signing of the UN treaty will be an important milestone to guide progress and not yet another failed pledge.
“Working with First Nations, Inuit and Métis peoples to imple‑ ment the declaration and create a framework to achieve its ob‑ jectives is a statement that the Government of Canada values, respects and promotes the human rights of all, and not just some,” said Lametti at a news confer‑ ence with First Nations leaders in December. “The legislation is a significant step forward on the shared path to reconciliation for Indigenous and non- Indigenous peoples alike.”
Perry Bellegarde, outgoing As‑ sembly of First Nations Chief, en‑ dorsed the bill as a way to balance economic and environmental con‑ cerns in pursuit of a better coun‑ try, but said it has a “precarious journey” ahead on the way to Roy‑ al Assent.