Indigenous rights include enforcing the law
You’d think the country was convulsing in an apprehended insurrection or something. It isn’t. It is a very big deal, in its way, with tens of thousands of frustrated commuters and ships idled in the harbours and so on. There’s a lot of public aggravation and a whole lot of shouting and crazy rhetoric. But the flag is still flying on government buildings. People really need to calm down.
So let’s start there, and let’s also remember that while all the roadblock banners and the chanted slogans loudly declare that the point of it all is “Wet’suwet’en solidarity” and “reconciliation” and so on, that doesn’t make it true. If you’ve found yourself enraged by all this stuff, don’t blame the Wet’suwet’en.
And don’t assume that these eruptions are even about Indigenous people, or about reconciliation, at all.
I cut my teeth as a cub reporter up in the Gitxsan and Wet’suwet’en territories. My first book was about their traditions and their laws and their courageous landrights struggles. I spent years reporting from the front lines of Aboriginal rights battles. And the thing about all the goings-on right now that we’re led to believe has been kicked off by a rumpus involving the Unistoten blockaders on that remote stretch of the Morice River is that the people now shouting the loudest about these things seem to be less literate about Indigenous rights and title than Canadians were, say, 20 years ago. Somewhere along the way, a strange thing has happened.
It’s not just because the terminology has changed, although that’s part of it too. The very reason we’re all using the term “Indigenous” now instead of “Aboriginal” is because of the United Nations Declaration on the Rights of Indigenous Peoples, which is being waved around like holy writ, as though it’s come down to us from Mount Sinai, and as though the RCMP and Coastal GasLink are committing sins somehow proscribed by UNDRIP. They’re not. So let’s get that sorted right away.
If you take the time to read the whole thing, you should notice that there isn’t really much to UNDRIP that in any substantial way adds to what was already there in Canadian law, in Section 35 of the Constitution Act 1982, and in the way the Aboriginal rights section has been interpreted by judges in a clear and fairly steady and perfectly comprehensible line of reasoning, going back several years now, through the Sparrow decision and Vanderpeet vs. The Queen and Gladstone and Delgamuukw and Tsil’qot’in and on and on.
Somewhere along the way, a great many people seem to have gotten it into their heads that the doctrine of Aboriginal rights is intended as some kind of collective atonement, a penance in the form of some sort of national affirmative action program for Canada’s 600-odd First Nations communities. But that’s not what Aboriginal rights are for, and that’s not the point, in law, of reconciliation.
The current weirdness is at least partly attributable to a sappy, anti-historical and hyper-problematized comprehension of the challenges Indigenous communities face that is encouraged and epitomized by the diction and the tone and the tenor of Prime Minister Justin Trudeau himself, whenever he addresses these questions. Trudeau gives every impression that he thinks interminably apologizing for how wicked the rest of us have been, and continue to be, is what leadership is. And that what’s needed in order to give effect to this great civic virtue we’ve come to call “reconciliation” is to subject the whole damn country to some kind of never-ending shock therapy consciousness-raising teachin exercise. Despite what the far right has been saying, that’s all that he shares with the protesters. But in any case, that is not what’s needed.
For years — decades — Canadians in the main have been alert and acutely willing to assist in the restoration of flourishing, proud and healthy First Nations communities. One public opinion poll after another shows this to be true. Just this week, Ipsos polling shows that three-quarters of Canadians say the federal government needs to immediately act to elevate the quality of life among Indigenous Peoples. That’s up 12 per cent from seven years ago. What the numbers also show is that Canadians are getting fed up with all the disruptions over the past three weeks: Sixty-three per cent want the police to take care of it. There is absolutely no contradiction in these numbers.
Canadians are starting to figure out that the main reason people are shutting down highways and commuter lines and seaports is because they can. Fair play to all the white “allies” who think they’re actually doing some good by acting like this, but come on. It’s cathartic and it’s fun and exciting and you don’t even get arrested. You can tell yourself you’re part of something big that’s going on, that you’re “making a difference,” and if anyone gives you backchat you can start comparing yourself to Rosa Parks and Mohandas Gandhi and Martin Luther King. But if what you really want is to shut down the whole liquefied natural gas complex that will be pouring product through the Coastal GasLink pipeline that all those Indigenous communities from the Peace River country to the Gitga’at territories out on Pacific want to build and benefit from, say so. Have the courage of your convictions.
Stop using a minority faction led by eight Wet’suwet’en hereditary chiefs as your pretext. You don’t even need it. You’ve got a point. Most of that LNG is bound for China, and China isn’t using LNG to wean itself off coal. China is shutting down and scaling back its coal production, all right, but it’s dodging its commitments to the Paris Climate Accord by digging more coal mines and building out more coal-fired electrical-generating capacity in Central Asia, South Asia and Africa right now than all of Europe’s coal capacity, combined.
As for the Wet’suwet’en imbroglio and its federally induced dysfunction of Indian Act band council jurisdictions competing with tribal council jurisdiction, the Assembly of First Nations’ Perry Bellegarde is quite right that the federal government should have dealt with that years ago.
For the time being, though, the main thing it should do is admit that the honour of the Crown is at stake here, as successive Supreme Court of Canada rulings have stressed, and that the Crown in Right of Canada is burdened by a constitutionally derived fiduciary duty to protect and uphold the Aboriginal rights and title of all those First Nation communities along the pipeline route who want to get on with building it.
Aboriginal rights under Section 35(1) of the Constitution are not confined to such things as Indigenous people putting on button blankets and cedar hats to give drum and dance performances for you at Nathan Phillips Square in Toronto. Aboriginal rights are very real, and meaningful, and enforceable, and West of the Rockies wherever there are no treaties in place, Aboriginal title confers upon First Nations the right to decide how traditional lands are used, and the right to benefit in a contemporary manner from those uses, to dig mines, to engage in industrial forestry, and to build pipelines. That’s the law.
If the federal government intends to infringe upon or usurp the Aboriginal rights of all those Indigenous people who want the pipeline, then the Trudeau government should come right out and say so. Either way, the government should uphold the honour of the Crown, discharge its fiduciary duty to those Indigenous communities, and uphold the damn law.
The people now shouting the loudest about these things seem to be less literate about Indigenous rights and title than Canadians were, say, 20 years ago.