Rights, reconciliation, and resistance 2020
Letter to the Editor
The current political struggle by the Wet’suwet’en hereditary chiefs and their supporters, and the responses of the cops under state direction, is reminiscent of some of the most challenging confrontations Indigenous people have delivered to the settler state in the past 50 years.
Oka, Anaheim Lake, Caledonia, and many more names are synonymous with this pattern. Virtually all of those events have been about land, jurisdiction, and respect for Indigenous decisions. Once again, the police are dragging Indigenous peoples off of their lands in Canada in the service of the state. Meanwhile, our politicians deliver talking points to the media, fulminating about the Rule of Law and defending virtually every political interest except Indigenous ones.
The Wet’suwet’en hereditary chiefs have, by their own laws, the responsibility for taking care of and making decisions on the use of their unceded traditional territories. That fact has legal ramifications, as recognized by the Supreme Court of Canada in Delgamuukw v. British Columbia (1997) and Tsilhqot’in Nation v. British Columbia (2014): the state cannot ignore those rights. There is a body of political theory and jurisprudence that suggests that traditional Indigenous laws continue despite the imposition of the Canadian state and its legal regime. Thus, Canada and B.C. are bound to take account of those laws and protocols, not to over-ride them.
Much has been made of the difference in opinion between Wet’suwet’en band councils and the hereditary chiefs. Bands councils are creatures of the Indian Act, constructed through that Act to manage reserves as per the Act. They work hard to meet the needs of reserve communities, despite the difficult structural and economic conditions they work in. The hereditary chiefs are the legitimate authority over their territories (which are far larger than the reserves) and their decisions are made on the basis of their laws, which are arguably part of the Canadian legal regime. They work for their people, but also for their territory and all of its inhabitants.
And much has been made of differences in Wet’suwet’en opinion – the media and other “stakeholders” have rounded up some Wet’suwet’en who work for Coastal GasLink and want the protests to stop so they can continue their work and pick up their paycheques. Surprise, surprise – there are different views in Indigenous communities. That does not take away from the authority of the traditional chiefs.
The situation of the Wet’suwet’en is very similar to that of the Ktunaxa Nation and many other nations. There are still traditional legal and political protocols in place that lay out Ktunaxa responsibilities to the land and all in it. Here in ‘amakis Ktunaxa (Ktunaxa territory), that law is framed as “akxamis qapi qapsin“ – all living things. Ktunaxa are responsible for the entire territory, including the water; and for all living things in it.
The example being set in the case of the Wet’suwet’en is troubling. It suggests that Canada and B.C. will completely ignore Indigenous laws and protocols that continue despite colonialism, when the issue has economic and political significance to those governments. In other words, Indigenous rights get sold out, repeatedly, in favour of corporate and majoritarian interests.
The Ktunaxa Nation is engaged in discussions with both federal and B.C. governments about a treaty, about land, and about jurisdictional co-existence on its territory. Yet, Canada’s and B.C.’s treatment of the Wet’suwet’en matter foreshadows what awaits Indigenous nations when there is a conflict over the use of the land.
Finally, the United Nations Declaration on the Rights of Indigenous Peoples is the gold standard for Indigenous rights at international law. It, like all international human rights law, applies to Canada, and indeed, is now enacted by our government in B.C. The right of free, prior and informed consent (FPIC) prior to any external use of traditional territory is part of this Declaration and of the law of Canada. It is far more robust than the legally anaemic “duty to consult” set by the Supreme Court. Both orders of government need to respect the FPIC rights of the Wet’suwet’en and of all Indigenous peoples.
The Wet’suwet’en situation places the provincial and federal governments on the wrong side of history. The result will be more decades of political estrangement between settler state governments and Indigenous nations, especially here in B.C. That is incompatible with the B.C. NDP government’s professed commitments to social and political justice and with the Trudeau Liberal government’s professed priority on good relationship and reconciliation with Indigenous people.
It is not possible to support both police enforcement of corporate and political interests against the positions of those charged with protecting their lands, and claim to be reconciliatory. Many thousands of Canadians and other Indigenous people get that, and have already made their choice to stand with the Wet’suwet’en hereditary chiefs.
University of Regina,