Ian Mulgrew: Reconciliation in danger of derailment by a minority opposed to rule of law
Credit to Author: Ian Mulgrew| Date: Wed, 26 Feb 2020 00:59:34 +0000
The mob opposing the Coastal GasLink pipeline refuses to acknowledge the complicated legal reality of First Nations reconciliation or Aboriginal rights.
Meanwhile, our politicians look like they don’t have a clue or any confidence in what is being done to settle Indigenous grievances and the cops appear more interested in filing overtime than clearing blockades so the country can function and people get to work.
In its latest ruling on Aboriginal rights involving the Innu in Labrador, the Supreme Court of Canada reiterated on Friday its past pronouncements, but few noticed.
The court has made it clear — Indigenous sovereignty was extinguished and the federal government calls the shots in Canada, even for Aboriginal people. Still, the high bench emphasized Section 35 of the Constitution specifically recognizes Aboriginal and treaty rights.
There are about one million First Nations people across the country (not counting the 65,000 Inuit or 600,000 Métis) — and most are covered by a treaty that together with the constitution defines their relationship with governments.
In B.C., however, the colonial administration stopped signing treaties, leaving most of B.C.’s roughly 250,000 First Nations today without a deal. Worse, politicians for most of B.C. history supported Indigenous policies that could have been drafted by the U.S. 7th Cavalry under Custer.
I think that era ended in 1991 when B.C. Chief Justice Allan McEachern rejected the Gitxsan and Wet’suwet’en Aboriginal claims in a 400-page judgment that was staggering in its tone-deaf condescension.
McEachern cribbed a Thomas Hobbes quote to describe Indigenous lives as “nasty, brutish, and short.” He then pointed out they didn’t invent the wheel or have horses.
Indigenous people had many reasons to be angry at how they were being treated; McEachern was a lightning rod.
Within a year, a new NDP government precipitated a sea-change in Victoria.
It abandoned the long-held anti-Indigenous-rights stance, leading the B.C. Court of Appeal to reject McEachern’s decision and order a new trial. And premier Mike Harcourt launched a process to sign modern treaties.
In 1997, the Supreme Court of Canada also tossed McEachern’s insulting ruling and sent the Gitxsan and Wet’suwet’en case back for a retrial. A generation later, that retrial has not taken place.
Instead, the Gitxsan and Wet’suwet’en bought into the promise of the nascent reconciliation movement.
Unfortunately, the B.C. treaty-making process has not been as successful as hoped — some of the province’s 200 bands refused to participate or angrily withdrew and there have been too few agreements given the hundreds of millions in tax money incinerated.
The lack of progress has been frustrating because of the cost and years it takes to reach a pact or get a legal decision involving Indigenous rights. The discontent is exacerbated when most rulings are hard to fathom.
The Supreme Court of Canada says Aboriginal title isn’t the same as owning property; Aboriginal title belongs to a group, not an individual. It’s also for the benefit of future generations, not just the current one. So it can’t simply be sold and individuals can’t make decisions about it, except maybe in circumstances the court hasn’t envisioned yet.
In other words: “It’s complicated!”
Yet the treaty-making continues and both sides are still pursuing solutions outside the courtroom so the politicians and Indigenous people shape the future, not some judge.
As everyone knew it would be, the process of negotiating reconciliation has been fraught with difficulty, failure and false starts, especially in B.C. given its despicable record of First Nations relations and the lack of treaties.
The issues we confront are not new — they were before the Supreme Court in 2013, in a B.C. logging dispute. In that unanimous decision, the high bench said Indigenous individuals could not exercise “community” rights by blocking a road without authorization from their band.
“(R)ights may sometimes be assigned to or exercised by individual members of Aboriginal communities, and entitlements may sometimes be created in their favour,” Justice Louis LeBel wrote for the court.
To legitimize civil disobedience, he wrote, would be “tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.”
“It may well be,” LeBel added, “that, in appropriate circumstances, individual members can assert certain Aboriginal or treaty rights, as some of the interveners have proposed. But I would not, on the occasion of this appeal and at this stage of the development of the law, try to develop broad categories for these rights and to slot each right in the appropriate one. This is an important issue, but a definitive pronouncement in this regard cannot be made in the circumstances of this case.”
That’s why it’s complicated.
LeBel believed that some community members might “have a greater interest in the protection of the rights on their traditional family territory than do other members of the First Nation, and that this connection gives them a certain standing to raise the violation of their particular rights.”
Some might argue that opens the door for, say, a handful of hereditary chiefs to assert their clan interests to block a pipeline.
Perhaps, but all the judges insisted that if Indigenous people believed their rights were being breached, they should ask for a judicial review rather than mounting barricades.
In the 8-0, landmark 2014 Tsilquot’in judgment, now-retired chief justice Beverley McLachlin confirmed that First Nations had rights, though government could still expropriate or place easements on Indigenous land.
The Tsilquot’in did not win their claim lock, stock and barrel, but rather a much smaller area of about 1,700 square kilometres — less than the size of Metro Vancouver.
Indigenous control of the land, insofar as they can benefit from it, the court explained, was constrained by the community nature of their rights and the need to look after the interest of future generations, which again was subjected to judicial review given the fiduciary obligations involved.
As long as the government negotiated in good faith, carried out meaningful consultation and, presumably, was willing to cut a reasonable cheque — a mine, pipeline or industrial development could proceed.
Most importantly, although tortoise-like and expensive, the Tsilquot’in decision indicated the process could work.
McLachlin called it the new “governing ethos … of reconciliation.”
Over the last few weeks, the protesters have mocked that hope and the authenticity of the country’s difficult but progressing reconciliation efforts.
The majority of the Wet’suwet’en say they back the GasLink pipeline, are satisfied with the consultations and happy with the outcomes.
Yet their rights are being ignored, ordinary commuters are having their lives disrupted, court injunctions are being flouted and the economy bruised.
These blockades are not just an inconvenience — they are an insidious attempt to derail reconciliation by a minority opposed to the rule of law.