True test of reconciliation: respect the Indigenous right to say No

Photo by Mychaylo Prystupa

Conflict is coming. There is no getting around that fact. Anyone who believes that reconciliation will be about blanket exercises, cultural awareness training, visiting a native exhibit at a museum or hanging native artwork in public office buildings doesn’t understand how we got here. Reconciliation between Canada and Indigenous peoples has never been about multiculturalism, diversity or inclusion. Reconciliation is not an affirmative-action program, nor is it about adding token Indigenous peoples to committees, advisory groups or board rooms. We cannot tokenize our way out of this mess that Canada created. Real reconciliation requires truth be exposed, justice be done to make amends and then Canada’s discriminatory laws, policies, practices and societal norms be reconciled with Indigenous rights, title, treaties, laws and jurisdiction. That process of truth, justice and reconciliation will be painful. It requires a radical change. Nothing less than the transfer of land, wealth and power to Indigenous peoples will set things right. The true test of reconciliation will be whether Canada respects the Indigenous right to say ‘no.’

Canadian courts have been issuing decisions about Aboriginal rights and title and treaty rights, sending the strong message to governments that they must obtain the consent of Indigenous peoples before taking actions or making decisions that will impact our lives. Governments have not listened. Canada’s failure to listen is one of the reasons why Indigenous peoples spent more than 25 years negotiating the United Nations Declaration on the Rights of Indigenous Peoples which guarantees the right of Indigenous peoples to free, prior and informed consent. Article 19 of UNDRIP provides:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Consent is a legal concept which can be defined as the voluntary acquiescence of one person to the proposal of another. In general, it is the right to say yes or no to something and/or put conditions on an agreement. Consent must be free from misrepresentations, deceptions, fraud or duress. This is a very basic right, but one which has been denied to Indigenous peoples since contact. Take for example, the actions of Indian agents and police, who used food rations to extort sex from Indigenous women and girls. In the context of being forced to live on reserves, not being allowed to leave the reserve and being dependent on food rations, what real choice would a young girl have? Similarly, when police officers or judges detain Indigenous women and girls, drive them to secluded locations and force them to perform sexual acts — there is no real consent when the threat of lethal force or arrest on false charges is ever-present. This is especially so given our knowledge of the number of assaults and deaths of our people in police custody. There was no consent when they stole our children and put them into residential schools, nor was there any consent when priests, nuns and others raped those children. There was no consent when doctors forcibly sterilized Indigenous women and girls — sometimes without their knowledge.

Feb. 25, 2018: Justice for Colton and Tina rally, Edmonton. The woman at centre holding up sign is Colten Boushie’s cousin Jade Tootoosis. Photo by Paula E. Kirman/ RadicalCitizenMedia .com.Today, the right of Indigenous peoples to free, prior and informed consent has become the central issue in Canada’s reconciliation agenda. Justin Trudeau campaigned on the promise of implementing UNDRIP into law and respecting the right of Indigenous peoples to say no. When asked by APTN host Cheryl McKenzie whether no would mean no under his government, he responded “absolutely.” Another way of putting this is that Indigenous peoples could exercise their legal right to refuse to approve or authorize a project. This veto right stems from various sources, but primarily our inherent rights as Indigenous governments with our own laws and rules which govern our traditional territories. They may also come from specific Aboriginal rights, treaty rights and Aboriginal title. These rights are not only protected within our own Indigenous laws, but also section 35 of Canada’s Constitution Act, 1982 and various international human rights laws, including UNDRIP. Yet, after Trudeau announced his latest idea to create a legislative framework to recognize Indigenous rights and avoid litigation, Justice Minister Raybould stated clearly that “consent doesn’t mean a veto” for Indigenous peoples.

So, we are now back where we started. Canada has not yet reconciled its laws, policies or political positions to the fact that Indigenous peoples have the right to say no to development projects on our lands. This means that conflict will continue to grow over mining, forestry, hydraulic fracking and pipelines on Indigenous lands. The true test of reconciliation will inevitably play out on the ground, like it did in Oka, Ipperwash, Gustafsen Lake, Esgenoopetitj (Burnt Church) and Elsipogtog. Will Canada force the Kinder Morgan pipeline to go ahead against the will of British Columbia and First Nations? Will Canada isolate and exclude First Nations who do not subscribe to the extinguishment requirements of Canada’s land-claims process? What will happen to First Nations who stop provincial social workers and police officers from entering their reserves to steal more children into foster care? This will be the real test of our inherent right to say no.

Canada will only truly give effect to reconciliation when Indigenous peoples have the right to say no — no to discriminatory government laws and policies; no to federal and provincial control over our Nations; no to racism from society, industry and government; no to sexualized violence, abuse and trafficking; no to theft of our children into foster care and the imprisonment of our peoples; no to the ongoing theft of our lands and resources; and no to the contamination and destruction of our lands, waters, plants, animals, birds and fish. The right to say no is the core of any future relationship with the Canadian state and its citizens. It’s a basic right — one which is grounded in our sovereignty as individuals and Nations to decide for ourselves the life we wish to live. Canada has made it clear we have no right to say no, only an obligation to say yes. First Nations leaders and citizens should not wait to see how this plays out in court – they should assert and defend their right to say no now. SOURCE

Trans Mountain and the Honour of the Crown: Indigenous legal challenges, round two

First Nations announce a new round of TMX legal challenges (Photo: Eugene Kung)

August 21, 2019

The federal cabinet’s re-approval of the Trans Mountain Pipeline and Tanker Expansion Project (“TMX” or “the Project”) on June 18, 2019 was hardly shocking news. After all, federal cabinet ministers have been saying for years that ‘the pipeline will be built.’ They even spent $4.5 billion of public money to bail out the project when pipeline company Kinder Morgan decided to abandon it.

The only surprises – sad ironies really – were the fact that the approval came just hours after the federal government declared a climate emergency, and the Prime Minister’s paradoxical definition of free, prior and informed consent as described in the press conference following the approval.

Predictably, the second round of approval faces a second round of legal challenges. According to the Federal Court of Appeal Registry, twelve parties have applied for leave to judicially review the cabinet approval, including eight First Nations, two environmental groups, the City of Vancouver, and a collective of youth climate strikers.

In the first round of lawsuits, six First Nations, environmental groups and municipal governments challenged the original 2016 approval at the Federal Court of Appeal (FCA), and won a decisive victory in August 2018 (the Tsleil-Waututh case). That decision quashed the approvals, and sent the Project back for a redo of the National Energy Board review and constitutionally-required consultation with impacted Indigenous peoples.

We have reviewed thousands of pages of legal documents to provide the following highlights from the applications to the court. In this post, we’ll start by reviewing the timeline of events since the Tsleil-Waututhdecision and provide an overview of the law on consultation. Next, we highlight some of the overlapping key arguments from the eight First Nations Applicants, followed by a few specific examples from each Nations’ pleadings, starting from the west and heading east.

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Trudeau’s paradoxical definition of Indigenous consent

The federal government’s skewed view of Indigenous consent, and its apparent conflict of interest on the pipeline, could pose a legal problem.

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Photo: Indigenous drummers perform a drum circle prior to a demonstration against the approval of the Trans Mountain pipeline, in Victoria on June 22, 2019. THE CANADIAN PRESS/Dirk Meissner

he latest cabinet approval of the Trans Mountain pipeline came less than a day after the federal government declared a climate emergency. While the irony was a dream for satirists, it wasn’t the biggest contradiction of the day. Instead, it was Prime Minister Justin Trudeau’s bizarre definition of free, prior, and informed consent (FPIC) with regard to projects that will impact Indigenous land and rights: “[FPIC] is what we engaged in doing with Indigenous communities over the past number of months. It is engaging, looking with them, listening to the issues they have and responding meaningfully to the concerns they have wherever possible.”

By Trudeau’s definition, consent is: listening to issues, responding to concerns wherever possible, and then forging ahead. As Indigenous lawyer and scholar Pam Palmater pointed out, imagine if that definition of consent was applied in the context of sexual relations?

The prime minister’s comments largely went unnoticed in the mainstream media, but his government’s skewed understanding of FPIC and half-hearted attempts at consultations with Indigenous communities remain the core reason it will be unable to move the project forward. Moreover, Ottawa’s purchase of the pipeline created an inherent conflict of interest as it purported to sit down for meaningful consultations.

“Listening to the issues”

So, what exactly was the government “engaged in doing” with Indigenous communities since last August, when the Federal Court of Appeal found that “Canada did not fulfil its duty to consult” on the pipeline and quashed the National Energy Board’s approval of it?

Many of the First Nations that had appealed to the court expressed their dissatisfaction with the renewed Stage III consultation process that the court had mandated.

The Squamish First Nation said it had been assured there were no time limits for the consultations, only to discover that cabinet did have an end date in mind. Khelsilem, a Squamish Nation spokesperson, told a news conference that they had been sent documents for feedback after May 22, the federal government’s self-imposed deadline for comments.

“What we experienced was a shallow attempt at consultation that resulted in a failure to address our concerns,” said Khelsilem. “The failure to meaningfully engage with rights holders means this government is either not serious about building this pipeline or not serious about respecting Indigenous rights.”

Chief Lee Spahan of Coldwater Indian Band said, “The meaningful dialogue that was supposed to happen never happened.” A study of the community’s aquifer had not yet occurred, and an existing pipeline spill has yet to be remediated.

Chief Leah George-Wilson of the Tsleil-Waututh Nation said that consultation once again fell well below the mark set by the Supreme Court of Canada in a number of key decisions, including Tsilhqot’in. This constitutional obligation of the Crown’s was re-emphasized in the Federal Court of Appeal ruling. George-Wilson also noted that the federal government was in a conflict of interest – that its multiple hats as proponent, decision-maker, enforcer of laws and fiduciary to First Nations and all Canadians made it impossible to make an open-minded, unbiased decision.

Pipeline blockade is a sign of deeper troubles

 

Governments of B.C. and Canada claim agreements with elected band councils constitute consent, even though Supreme Court cases — including 1997’s Delgamuukw versus the Queen, which involved the Gitxsan and Wet’suwet’en — have recognized traditional governance forms, including the hereditary chief and clan system, on traditional territories. Elected band councils are more like municipal councils that have limited jurisdiction only over reserve lands.

The hereditary chief system was in place long before settlers and colonizers arrived. Chiefs, clans and house groups are responsible to the land and the people, and chiefs can be removed if they fail to fulfil their duties. The band council system is a product of the Indian Act, which also gave us residential schools.

As my good friend Miles Richardson, David Suzuki Foundation board member and former head of the B.C. Treaty Commission and Haida First Nation, told the Vancouver Sun, “When you look at the political world and the relationship between First Nations and the Crown, there’s a mighty struggle going on between two world views. There’s the Indigenous worldview manifested in the nation-to-nation commitment, and the colonial view, a 200-year-old, failed policy that was denounced by the Truth and Reconciliation Commission and apologized for.” MORE

 

 

UN committee says B.C.’s Site C dam may break international deals

Says Site C would infringe Indigenous Peoples’ rights protected under the International Convention on the Elimination of All Forms of Racial Discrimination


Completed powerhouse foundation, a massive concrete structure on the south bank. B.C. HYDRO

The UN’s committee on the elimination of racial discrimination says Canada may have already violated an agreement it signed 50 years ago. That agreement commits Canada to prevent development on Indigenous land without adequate consultation.

Canada has also promised to block destructive development, allow Indigenous people to conduct their own impact studies and stop forcing First Nations to go to court.

“The committee is concerned about the alleged lack of measures taken to ensure the right to consultation and free, prior and informed consent with regard to the Site C dam,” reads a Dec. 14 letter addressed to Rosemary McCarney, Canada’s ambassador to the UN. MORE

The Unist’ot’en Movement, Not the RCMP, Has the Law on Its Side

The facts about aboriginal rights and title support the Wet’suwet’en peoples in their pipeline protest.

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The Wet’suwet’en land defenders and their supporters attempt to stop RCMP officers from enforcing an injunction. Photo by Michael Toledano.

The people defending the land are comprised of Wet’suwet’en hereditary chiefs and their people, who want to ensure that their lands are protected so they can continue to practise their rights to hunting, fishing, trapping and gathering, and exercise their right to clean air and water and a healthy environment. Pipelines, they say, are a threat to these rights that the Wet’suwet’en people value.

Neither the elected chief and band councils that support the pipeline, nor the federal or provincial governments, nor Coastal GasLink ever obtained the consent of the Wet’suwet’en hereditary chiefs and their supporters. And that’s what’s at issue here. MORE

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There are two kinds of Indigenous governance structures, but Canada has been listening to just one

United Nations instructs Canada to suspend Site C dam construction over Indigenous rights violations

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The world’s foremost racial discrimination committee says Canada must work with Indigenous communities to find an alternative to the $10.7 billion hydro project in B.C.

In a rare rebuke, the United Nations has instructed Canada to suspend construction of the Site C dam on B.C.’s Peace River until the project obtains the “free, prior and informed consent” of Indigenous peoples.

Canada has until April 8 to report back to the UN Committee on the Elimination of Racial Discrimination outlining steps it has taken to halt construction of the hydro project, which would flood 128 kilometres of the Peace River and its tributaries in the heart of Treaty 8 traditional territory. MORE