by M. Gouldhawke (Métis & Cree)
January 12, 2020
(This article is part one of a series on UNDRIP’s adoption in BC. Part two can be found here.)
“While this bill [Bill 41] does not, in and of itself, give the UN declaration legal force and effect, it does not delay or affect that current application of the UN declaration… This legislation is enabling, so we won’t see the world change overnight once it is passed.”
– Scott Fraser, BC Minister of Indigenous Relations and Reconciliation, Legislature debate, October 30, 2019
“I want to say strongly and clearly here: this declaration law is not about providing any government with veto rights.”
– Terry Teegee, regional chief of the BC Assembly of First Nations, Canadian Press, October 24, 2019
The recent eviction of the Coastal GasLink pipeline company from Wet’suwet’en territory in response to the BC Supreme Court’s granting of a legal injunction has generated a response of its own, in another wave of solidarity demonstrations across the continent, as well as support statements and analysis of the injunction itself. The court’s decision appears to contradict the BC government’s recent adoption of UNDRIP, but looks aren’t everything. Toothless laws are perfect for politicians known for flapping their gums.
In this context, the Alliance Against Displacement’s (AAD) January 10th statement appears to me to contain some inaccuracies on Justice Marguerite Church’s injunction, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), BC’s Bill 41, and Indigenous law.
Contrary to what AAD states, Justice Church never says in her decision that the Wet’suwet’en people must take part in the BC Treaty Process in order for their law or land to be recognized, and she only ever references the Process once, obliquely, through the words of a particular Wet’suwet’en opponent of the Unist’ot’en Camp.
AAD is correct to the extent that they identify Justice Church’s decision as dismissive of Indigenous law, and that it upholds Canadian sovereignty on the basis of the racist Doctrine of Discovery. However, their statement also seems to conflate two distinct legal frameworks, Indigenous law and Canadian Aboriginal law, which are addressed differently in Church’s decision.
Contrary to what AAD claims that Church said, that Canada’s courts would “not consider the precedent of Indigenous laws in Supreme Court decisions,” she clearly states in her decision that Indigenous law can be considered, if it has first been converted into and recognized by Canadian Aboriginal law. In fact, it is Canadian Aboriginal law which has a series of precedents in the Supreme Court, not Indigenous law.
Church writes that there must be “some means or process by which the indigenous customary law is recognized as being part of Canadian domestic law, either through incorporation into treaties, court declarations, such as aboriginal title or rights jurisprudence or statutory provisions: Alderville First Nation v. Canada 2014 FC 747, para. 40”
The Truth and Reconciliation Commission final report in 2015 asserted that “All Canadians need to understand the difference between Indigenous law and Aboriginal law.” While Indigenous law predates Canada and is composed of the legal systems of Indigenous peoples themselves, “Aboriginal law is the body of law that exists within the Canadian legal system.”
The Indian Act, Sections 35 and 91 of the Constitution, and Supreme Court decisions such as Delgamuukw (1997), Tsilhqot’in (2014) and Daniels (2016) are examples of Canadian Aboriginal Law. Alternatively, Wet’suwet’en clan laws against trespass on their territories and the Métis Laws of the Hunt are examples of Indigenous law.
Aboriginal rights and title, as described in decisions like Tsilhqot’in, are part of Canada’s Aboriginal legal framework. While Canadian Aboriginal law is partly based on Indigenous law, and is in one sense a partial recognition of it, in another sense it is an attempted domestification and containment of Indigenous law through colonial institutions, as exemplified in Justice Church’s claim that “indigenous customary laws do not become an effectual part of Canadian common law or Canadian domestic law” until they are integrated into the colonial framework.
The Wet’suwet’en people have never given up title to their territory, never signed any historic or modern day treaties, and the 1997 Delgamuukw-Gisday’wa Supreme Court decision stated that the lower BC court was wrong to claim that their Aboriginal title had been extinguished.
Through resistance, Indigenous peoples have forced upon the State a measure of acknowledgment and raised the need for the State to somehow manage colonial contradictions. However, assimilation remains the overall policy goal and Indigenous law remains pushed to the margins, when not outright violated. Anishinaabe law professor and writer John Borrows has explained how even the Tsilhqot’in decision, generally seen as the most progressive to date, still upholds the racist Doctrine of Discovery.
While Justice Church acknowledged Canadian Aboriginal legal precedent and even Indigenous law to a very limited extent, “as fact evidence of the indigenous legal perspective”, she also made totally incorrect, racist and arrogant presumptions about Wet’suwet’en law, and so-called “self-help remedies,” such as blockades that may become necessary in order to enforce Indigenous law when Canada violates it.
Justice Church also dismissed the affidavit of a non-Native anthropologist and writer, Antonia Mills, because of “her public support for and close association to the Unist’ot’en Camp.” In addition, Church gave equal weight of consideration to the Indian Act band council system in precisely the realms that don’t apply to them, Aboriginal title and Indigenous law.
In conceding any rights or recognition whatsoever to Indigenous peoples, the settler colonial legal framework may appear to settlers as progressive and capable of reform. But as Indigenous peoples have consistently pointed out, nothing breaks like a treaty, and as settler colonialism scholar Patrick Wolfe noted, “for something to be suppressed, it must first exist.” While to Indigenous peoples historic treaties are sacred and not meant to cede land, to the colonial State they are a matter of convenience, or easily sidestepped inconvenience, in an ongoing process of land theft. The “rule of law” is that the ruling class makes, and remakes the law.
BC’s recent adoption of UNDRIP through Bill 41 partakes of this kind of contradiction and conflict as well. AAD asserts that “BC’s adoption of UNDRIP means that Coastal Gaslink must obtain Wet’suwet’en consent to build a pipeline on Wet’suwet’en lands.”
However, UNDRIP itself is not a law, is not legally binding, and it’s not clear why or how it could be made to apply retroactively to a development project already approved and underway. UNDRIP calls for redress and mitigation of damages to Indigenous peoples and lands caused by development, and for obtaining consent “prior to the approval” of projects, not afterwards.
Article 10 of UNDRIP, which states that Indigenous peoples should not be forcibly removed from their territories, would seem to be the only potential relief from development projects already approved, but this also remains open to interpretation and lacks the force of law.
Conceivably, the BC government could argue it is not violating this standard as long as Wet’suwet’en people are not permanently removed from their territory, as long as they are arrested and detained on their own territory as people breaching Canadian law and the (racist) “public interest.” BC Minister of Indigenous Relations and Reconciliation Scott Fraser even made this explicit in the Legislature when he said, “this legislation does not limit the right of government to make decisions in the public interest…”
In fact, neither the BC government nor the United Nations refer to UNDRIP as a law but instead describe it as a set of standards and a framework. And while the BC government has passed it’s own law regarding UNDRIP, Bill 41, its actual content is almost entirely focused on future measures to be taken as part of an action plan, in collaboration with Indigenous peoples.
Life moves pretty fast, but UNDRIP doesn’t. Its formulation and adoption at the UN took decades, and now the BC government has explained on its new flashy UNDRIP webpage, in reassurance to the business community, that implementation won’t happen all at once, right away. “Over time as laws are modified or built, they will be aligned with the UN Declaration”, says BC.
“The implementation of this Act will be a gradual, step-by-step process that puts the BC government and Indigenous peoples on a long-term path to work together to advance reconciliation,” says one of BC’s fact sheets.
“Companies won’t immediately see changes when the legislation comes into effect,” reassures a fact sheet for the business community in general. “Any changes to other pieces of legislation will take time and will involve companies and stakeholder groups as legislation in different sectors is examined.”
In directly addressing the question of whether BC’s new law could result in the re-opening of existing natural resource benefits sharing agreements with the Province, the answer couldn’t be more clear. “No, the legislation does not re-open existing natural resource benefits sharing agreements between Indigenous nations and the Province,” says BC, and furthermore, “those agreements will continue to be administered in accordance with their terms and conditions.”
While BC claims to be planning UNDRIP implementation in collaboration with Indigenous peoples, in practice, it is not actual Indigenous peoples as collective Aboriginal rights holders that BC has been working with, but instead Indian Act band council structures such as the Assembly of First Nations (AFN) and First Nations Summit (FNS), exactly the organizations involved in the fraudulent BC Treaty Process that “modifies” Aboriginal rights out of existence.
In the precedents set in Canadian Aboriginal law, it is not band councils that are the holders of Aboriginal rights and title but the people as a collective whole. As creations of Canada’s Indian Act, band councils only have delegated jurisdiction over reserve lands. The BC Treaty Process is thus an act of fraud, as it is negotiated between band councils and a province, who are not nations, over rights they do not hold.
While Native peoples’ sovereignty, their relationship to their lands, is both spiritual and material, rooted in countless generations of experience passed down to successive generations, the only thing BC and Canada have a sacred relation to are money and power. This is made abundantly clear in the various fact sheets available on the BC government’s special UNDRIP adoption website, targeted at different branches of industry.
“In the context of ongoing conflict related to unresolved Indigenous rights around the world, BC’s approach can create investment opportunities and a sound landscape for investment,” declares the government. “As a jurisdiction tackling these issues in a comprehensive and innovative way by actively implementing the UN Declaration, BC becomes a more attractive place to invest.”
The fact sheet on Mining, Oil and Gas attempts to comfort industry, saying that “in the short term, EMPR [the Ministry of Energy, Mines and Petroleum Resources] does not anticipate any significant changes to the regulatory framework for mining and oil and gas.” Furthermore, “the BC Declaration on the Rights of Indigenous Peoples Act does not change how EMPR consults with First Nations nor how operational decisions are made.”
In its statements and advertising on UNDRIP’s adoption, the BC government also conflates collective Indigenous and Aboriginal rights with human rights, which are individualized. The Canadian Human Rights Act and the Charter of Rights and Freedoms in fact only refer to Aboriginal rights to say that they aren’t affected. However, this confusion aids and abets Canada in its goal of assimilating Indigenous peoples, of extracting individual citizens from sovereign Indigenous collectivity.
Much has been made over the years of UNDRIP’s call for free, prior and informed consent for development projects. However, representatives of both the BC government and the AFN made it abundantly clear in the media that UNDRIP does not give Indigenous communities a “veto” over development projects.
This choice of wording sidesteps and degrades the very concept of consent, which is meaningless if “yes” is the only acceptable answer, and if the question then becomes only “how” to proceed with corporate development, not “if”. Furthermore, whose consent is being asked? Band councils or Indigenous peoples? When grassroots people say “no”, they are ultimately met with violent police and military force, according to the sacred traditions of the State.
AAD’s statement wades in the descriptive but begins with the prescriptive. Indigenous peoples are told what they must do to stop Canada’s invasion, in a collective statement made by an organization with a mixed membership, including some Indigenous people. This might just seem redundant if not presumptive, given that the call for solidarity from all social sectors has been made repeatedly from the Wet’suwet’en themselves, and given that Indigenous peoples have had to mostly rely on themselves and other Natives until recently.
Not to mention that Indigenous people, despite being a small percentage of the population of Canada, have had precisely the most prominent and successful social movements at actually stopping settler development projects in recent memory, such as at Oka/Kanehsatake, Caledonia/Kanohnstaton and Elsipogtog, which saw some limited settler support but were not dependent upon it. While settler movements like union struggles have faded into the background and failed to generate, or even allow for solidarity, Indigenous resistance has maintained a foundation of community based power and a practice of direct action that has incidentally benefited and reinvigorated non-Native activist work.
While it’s clearly fortunate and to be encouraged that non-Native support is on the rise, if this could also transition to more substantial solidarity, still more could be accomplished. And even basic support could benefit from a base level of clarity regarding the distinction between Indigenous law and the colonial framework.
The frontlines may be everywhere, in a broad and aspirational sense, but they’re also somewhere in particular, the Unist’ot’en Camp and Gidimt’em Access Point, which are precisely what inspire this current movement. In this struggle, accurate information may be just as useful as diversity of participation, while the process of active participation in the struggle can further develop the wealth of information at our disposal and our ability to respond effectively to any turn of events.
“The fact is there is no veto in the UN Declaration on the Rights of Indigenous Peoples. There are 46 articles. The word ‘veto’ is not used… Our bill [Bill 41] does not contemplate veto either.”
– Scott Fraser, BC Minister of Indigenous Relations and Reconciliation, APTN National News, November 28, 2019
“The word veto is not contained in the legislation nor is it contained in the UN Declaration on the Rights of Indigenous Peoples. What is contained in that is ensuring that all peoples have the same set of rights going forward, and free, prior and informed consent is just that.”
– Premier John Horgan, Surrey Now-Leader, October 24, 2019
UNDRIP bill becomes law in B.C. after it fails federally, APTN National News (2019)
(at 10:12 into the video, Scott Fraser, the minister of Indigenous Relations and Reconciliation, says “veto” not in UNDRIP or Bill 41)
* This 2006 article from Warrior magazine details numerous public accusations of sexual abuse and assault on the part of Ed John dating back to the 1990s.
Grand Chief Stewart Phillip of the Union of BC Indian Chiefs told the Vancouver Sun he was still processing the news when the criminal charges came to light in November of 2019. “Needless to say, it’s shocking.” said Phillip.
The incidents of which Ed John is accused are said to have occurred between March 1st and September 15th of 1974, according to the Vancouver Sun, with information from BC Prosecution Service spokesman Dan McLaughlin, who explained that the reason the charge is “sexual intercourse with a female person without her consent” is because they are using Criminal Code provisions from 1974 when the term sexual assault was not used.