Indigenous blockades and the ‘rule of law’ in Canada: Conflicts and…intersections?

Is there common ground between supporters of Indigenous rights and supporters of resource development?

Wet’suwe’ten hereditary chiefs and their supporters protest the Coastal GasLink photo in Smithers, B.C. (Jason Franson/The Canadian Pres)

1. Oka and Ipperwash: Ghosts of the past

There have been multiple confrontations between settler Canadians and Indigenous people over land and resources, ranging from Gustafsen Lake and Clayoquot Sound in British Columbia to Burnt Church in New Brunswick. Two of the most notable, though, are arguably the Oka crisis in Quebec and the Ipperwash crisis in Ontario.

…if the Sureté had gone in guns blazing like some pundits wanted, it could have turned out much more like the incident at Waco in the United States, which ended in 80 deaths.

The 1995 Ipperwash crisis resulted from a dispute between Indigenous Chippewa people and the federal government over land that the Chippewa had been forcefully removed from so the government could use it as a military base. The standoff cost the life of Indigenous protester Dudley George and cost Ontario taxpayers $13.3 million in a public inquiry and $95 million in a settlement. Like Oka, it caused a public relations disaster, this one for Ontario.

Cliven Bundy’s supporters face off with federal agents at a 2014 standoff (Jim Urquhart/Reuters)

2. Band councils and hereditary chiefs: Accountable to who?

On paper, the band council system set up by the federal Indian Act looks democratic. Unfortunately, they have a big legitimacy problem with some of their constituents. As Kwakwaka’wakw entrepreneur and thinker Bob Joseph writes, “the first thing to know about the Indian Act electoral process is that if you are chief or council, you are elected by your people, but you are accountable to Indigenous and Northern Affairs Canada.”

…their jurisdiction is limited to actual reserve land, not the larger traditional lands Indigenous people might be connected to. And again, their authority is also fundamentally limited, and overridden by Indigenous Affairs bureaucrats.

As noted by Joseph and other Indigenous writers like Chelsea Vowel, the band council system was part of a larger government strategy to undermine traditional Indigenous governance and kinship systems. The First Nations people that had to live under the band council system had no say in how it was designed, much less whether they wanted to live under it.[ii] It could be argued that First Nations reserves are as democratic as municipalities, but Chelsea Vowel also points out that Indigenous and Northern Affairs bureaucrats have far more power over band affairs than provincial officials have over municipalities. Vowel notes that the federal and provincial governments also provide municipalities many different sources of legislative and financial support, but Indigenous and Northern Affairs doesn’t provide anything close for reserves and councils. Even federal officials admit that reserves are underfunded.

3. Indigenous title and governance: Neither gone nor forgotten

The common assumption among most settler Canadians is that Indigenous land rights and title no longer matter. What most settler Canadians say and what the courts and the Constitution say are two separate things, though.

…the Crown’s sovereignty, whether that of the federal or a provincial Crown, depends on it being reconciled with its Indigenous counterpart.

The 1996 Royal Commission on Aboriginal Peoples found that Section 35 of the Constitution, which states that “the existing aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed”, recognizes Indigenous peoples’ rights to self-governance, including functioning as distinct orders of government in Canada.[iv] Supreme Court decisions such as Haida, Tsilhqot’in and Delgamuukw (the latter brought forward by the Wet’suwet’en hereditary chiefs) have further detailed these rights. The cases recognize the original governance systems and land rights Indigenous people had before European contact, and that these rights were not extinguished by European contact or the British Crown’s declaring its own sovereignty.

4. Conflicts…or intersections?

Different Indigenous nations would have to resolve their own differences and make their own decisions about when and where they would consent to new developments. Some would say no, others would say yes-as is their right.

So far, it seems like there’s an impasse. Either the Supreme Court’s rulings on Indigenous title and governance are ignored, or energy development in Canada apparently becomes all but impossible.

People participate in a March for Reconciliation aimed at renewing relationships among Indigenous peoples and all Canadians (Art Babych/Shutterstock)

5. An intersection…and a way forward

The Wet’suwet’en conflict is a perfect example of the impasse we’re facing right now. Not only is there the conflict over the construction of the Gaslink pipeline, but there’s the conflict among the Wet’suwet’en themselves. At least one matriarch, Rita George, vehemently opposed the protests. Other people are in support of the pipeline, including people who are afraid to speak out. Other hereditary chiefs and pipeline supporters among the Wet’suwet’en feel that they haven’t been allowed to speak. The hereditary chiefs aren’t without their critics, either-when they signed a memorandum of understanding with the federal and B.C. governments in May, they were criticized for doing so behind closed doors.

A representation of the Two Row Wampum Belt (Canada’s History classroom resources)

Passionately devoted to Canadian unity. Fascinated by Canadian politics and history. Striving to understand the mysteries of Canada.