Horgan’s Pipeline Push Betrays His Reconciliation Promise

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‘Is this a scorecard of how many First Nations say yes compared to those who say no? Is that how we measure rights and title?’ Photo by Michael Toledano.

It’s the same old story Indigenous Peoples have heard for generations.

B.C. Premier John Horgan tells the public “the rule of law” demands the Coastal GasLink pipeline go ahead. Permits are in place, and the courts have approved construction.

The opposition of Wet’suwet’en hereditary chiefs is not important to Horgan, as he points to 20 First Nations that have signed agreements to allow the pipeline and negotiated benefits. The five clans who have not agreed don’t seem to count.

Is this a scorecard of how many First Nations say yes compared to those who say no? Is that how we measure rights and title?

Are we not in a new era of reconciliation? A new decade? The decade of the enactment of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Act in this province?

What would I expect from the premier in this new era, in this particular situation when he needs credibility with First Nations if his commitment to UNDRIP is to be taken seriously?

I would expect the premier to look back on past decisions and ensure they were made in the spirit of UNDRIP — including approval of the Coastal GasLink pipeline. His party was making political promises to uphold UNDRIP long before the NDP were in government.

In the 2014 Supreme Court of Canada Tsilhqot’in decision, the justices stated clearly that provincial and federal governments need to be prepared to cancel already approved projects if First Nations establish title to the land and oppose them.

“Once title is established, it may be necessary for the Crown to reassess prior conduct in light of the new reality in order to faithfully discharge its fiduciary duty to the title-holding group going forward,” the judgment says. “For example, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing.” (Emphasis added.)

The court also sets out the correct path for governments.

“Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.

Horgan should heed the advice of the Supreme Court of Canada and revisit the decision to proceed with the pipeline, especially in light of his commitments to resolve land titles, implement UNDRIP and advance reconciliation. The court advised getting the consent of Indigenous people; that’s what he should do.

The right to self-determination

Furthermore, UNDRIP is very clear that all Indigenous Peoples have the right to self-determination. Self-determination means that Indigenous Peoples will freely determine their own political status. That means governments and companies cannot decide which is the right governing body for a nation. That is a matter for Indigenous Peoples.

The Indian Act imposed a system of government on First Nations, attempting to dismantle a governance system that had functioned for centuries. It made chiefs and councils the owners of the land and gave them total power.

But traditional government systems have not been eradicated.

Wet’suwet’en hereditary chiefs are opposing the pipeline, and some are questioning their legitimacy.

Wet’suwet’en hereditary chiefs launched the lawsuit and took the issue to the Supreme Court of Canada.

Surely this should indicate to the government and companies who has title and rights to the land. And surely, they should recognize that it is up to the Indigenous people to determine this, not the provincial government. Clearly the hereditary chiefs must be part of this decision on whether the pipeline proceeds.

Free, prior and informed consent

Free, prior and informed consent has been and will continue to be an issue in relation to UNDRIP, because governments and Indigenous people do not agree on its meaning.

Horgan’s government has said it was waiting for the UNDRIP legislation to pass before working to reach agreement about what free, prior and informed consent means. He has not tried to work this out with First Nations in advance, even though that would have been prudent.

We have heard Horgan and Minister of Indigenous Relations Scott Fraser say that the requirement for free, prior and informed consent does not give First Nations a veto over projects in their territories.

Then what is consent under UNDRIP? Is it a simple yes or no? Does it give a veto because no means no? These are good questions that must be answered by Indigenous Peoples and governments.

The Wet’suwet’en hereditary chiefs are saying no. No consent. No project. No access. Not on their lands.

In criminal law, a woman can say no to a man and no means no. If he proceeds against her wishes, he can be guilty of a crime. Why doesn’t the requirement for free, prior and informed consent give the same right to Indigenous Peoples?

So what does consent mean to this B.C. government? That they have the final say? That they can decide no does not mean no. That the status quo continues when it comes to development?

That would not reflect a new era of reconciliation, or the principles of UNDRIP. That would be the Crown asserting jurisdiction over First Nations laws and title once again.

Sending in the RCMP to remove protesters is also the same old story — a show of force against defenders of the land who are not armed, who are elders, youth and chiefs. RCMP assert their power under a court order that hasn’t taken into account Indigenous laws.

This pipeline dispute is not new. It has been ongoing for years. That it has not been resolved speaks volumes about the unwillingness of this government to sit down at a table with the hereditary chiefs and talk about why they are opposed and try and resolve differences.

If we are in the era of reconciliation, there needs to be more efforts to come to agreements. If agreements cannot be reached, there needs to be impartial tribunals established to help find those solutions. And if no solutions are found, then there is no project.

If the principles of UNDRIP are being implemented and being placed into laws, the government has to start respecting its provisions now.

For instance, Article 18 gives the Wet’suwet’en the right to participate in any decision-making through their own procedures and law. This has not happened.

Article 26 gives them the right to own, use, develop and control the lands, territories and resources they possess through ownership, and says the state must give legal recognition and protect their lands and resources. None of this has occurred to date, and it doesn’t look like B.C. is even considering it. The government is saying this is Crown land, the company has Crown permits, so therefore the development must happen.

Article 25 gives the Wet’suwet’en the right to strengthen their spiritual relationship with the land, waters and resources in their territories. But if their territory is destroyed for a pipeline, their relationship with their land will also be destroyed.

Article 29 gives them the right to the productive capacity of their territories, and a pipeline does not allow for this.

There are many more articles on implementing laws and protecting sacred and cultural sites that B.C. is violating by continuing with the pipeline project over Wet’suwet’en objections.

These statements by Horgan set back the ambitious, positive agenda set by his government in implementing UNDRIP. They signal to First Nations’ people in B.C. that the government is not serious about the new law.

And they strongly signal trouble ahead as B.C. continues with its status quo agenda that claims government has final say over developments on First Nation title lands, and the requirement for free, prior and informed consent will not be taken seriously.

Many First Nations peoples in this province are hearing Horgan and asking what has changed?

The answer is nothing. B.C. is moving ahead with the government’s economic agenda at the expense of First Nations rights, title and all the requirements set out in the United Nations Declaration on the Rights of Indigenous Peoples.

First Nations people thought we were throwing out the old book and beginning a new one. Sadly, it looks like the same old story. This is not the new decade we were looking for. SOURCE

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RCMP, let journalists witness Unist’ot’en Camp

Photo from Facebook page of Wet’suwet’en Access Point on Gidimt’en territory.

Members of the Wet’suwet’en First Nation have fought for many years to keep three pipelines from running through their land in northern B.C. At stake, the protesters say, is their way of life, their culture and their system of governance which was recognized by the Supreme Court of Canada in the landmark Delgamuukw decision in 1997.

I remember when the Wet’suwet’en first erected the Unist’ot’en Camp to uphold the clans’ decision to prevent Enbridge, Chevron and TransCanada from building pipelines on their unceded lands in 2010. Tensions rose as they built a blockade and confronted workers who attempted to cross it, saying they had no permission to be on their territory.

Last December, a report by the Guardian newspaper sent shock waves across Canada. The Guardian said it had uncovered documents showing that the RCMP discussed shooting Indigenous clan members and supporters, all in the service of gas and oil. “Notes from a strategy session for a militarized raid on ancestral lands of the Wet’suwet’en nation show that commanders of Canada’s national police force, the Royal Canadian Mounted Police (RCMP), argued that “lethal overwatch is req’d” — a term for deploying an officer who is prepared to use lethal force.

Is this reconciliation? Hardly.

Is this making amends for residential schools, colonialization, the taking of lands and wealth? You bet it’s not.

Shockingly, a tweet from the Unist’ot’en Camp stated today the RCMP has blocked roads for 27 kilometers leading up to the site, barring media from witnessing and documenting their actions.

“We do not want to see a repeat of last year’s behaviour, when the RCMP used an exclusion zone to block journalists’ access, making it impossible to provide details on a police operation that was very much in the public interest,” Canadian Association of Journalists president Karyn Pugliese said in a tweet.

Pugliese has it right.

Even without the Guardian‘s report of the RCMP’s apparent willingness to use lethal force to remove people from the blockade, the RCMP should not be allowed to stop journalists from witnessing their actions.This is Horgan’s Scott Morrison moment. Like the Australia PM, Horgan is pushing fossil-fuel expansion in face of obviously dire climate change.

Now would be an excellent time for the B.C. Greens to show some backbone. Put Horgan’s govt on the line. If he proceeds against the Wet’suwet’en, dissolve the coalition. Force a new election.
As long as B.C. is going to follow neoliberal policies, the B.C. Liberals may as well be in power. But progressive voters must send a clear message to the NDP. We won’t accept this betrayal.

What have the Greens got to lose?

“Horgan says ‘rule of law applies,’ LNG pipeline will proceed despite protests” (Canadian Press: January 14, 2020)
A natural gas pipeline across northern British Columbia is vital to the region’s economic future and it will be built despite the objections of some Indigenous leaders, Premier John Horgan said Monday.
He said the courts have ruled in favour of the project and the RULE OF LAW will apply to ensure work continues on the Coastal GasLink pipeline, which would start near Dawson Creek and extend to an export terminal at Kitimat.

Horgan told a news conference the project has received approval from 20 First Nations along the pipeline route.

“We want everyone to understand that there are agreements from the Peace Country to Kitimat with Indigenous communities that want to see economic activity and prosperity take place,” he said. “All the permits are in place for this project to proceed. This project is proceeding and the RULE OF LAW needs to prevail in B.C.”

Horgan’s government adopted legislation late last year to implement the United Nations Declaration on the Rights of Indigenous Peoples. It mandates the government to bring provincial laws and policies into harmony with the declaration’s aims of reconciliation with Indigenous Peoples.

The UN declaration says Indigenous Peoples have the right to self-determination, which means they can determine their political status and pursue economic, social and cultural development. It requires governments to obtain “free and informed consent” from Indigenous groups before approving projects affecting their lands or resources.
BUT HORGAN SAYS THE DECLARATION DOESN’T APPLY TO THE COASTAL GASLINK PROJECT.

“Our document, our legislation, our declaration is FORWARD LOOKING,” he said. “It’s NOT RETROSPECTIVE. We believe it will open up opportunities not just for Indigenous people but for all British Columbians.”

https://calgaryherald.com/pmn/news-pmn/canada-news-

The BC Civil Liberties Association stands with the Wet’suwet’en, too:
https://bccla.org/wp-content/uploads/2020/01/2020-01-10-LT-RCMP-et-al-re…

Our wee co-op has also made such a statement:
http://ecoreality.org/wiki/Statement_in_support_of_the_Wet%27suwet%27en

Do you belong to a church group, charity, civic organization, or serve in local government? Your group is invited to do so, as well!
http://unistoten.camp/support-us/solidarity-statements/

This whole thing is wrong on so many different levels. The Wet’suwet’en is reporting that the RCMP is blocking shipments of food to their camps, during a bitter cold snap! “Starve them out” That thinking is so 1876. It is immoral.  SOURCE

RELATED:

Complaints filed against RCMP for blocking Wet’suwet’en access

A decade of high expectations, broken promises for Indigenous peoples

Idle No More protestors close down Winnipeg’s major intersection of Portage Avenue and Main Street in 2012. (John Woods / Free Press files)</p>

Idle No More protestors close down Winnipeg’s major intersection of Portage Avenue and Main Street in 2012. (John Woods / Free Press files)

Murray Sinclair has tried for years to shock Canada into confronting colonialism. He’s not done yet

After leading landmark inquiries on racism in Manitoba, residential schools and police discrimination in Thunder Bay, this jurist turned politician says he’s learned that shocking words are sometimes best: Genocide. Apartheid. War. Now, he has more to say.

ILLUSTRATION BY AGATA NOWICKA

The words are so shocking, so evocative of foreign atrocities, that many Canadians are still unwilling to accept that they apply to their own country – words such as “apartheid,” “genocide” and “war.”

But after decades of research from his inquiries into racial abuses in the justice system and in residential schools, Senator Murray Sinclair never hesitates to use those terms – even when he knows they might spark a backlash.

“Sometimes the shock value is worth it,” he told The Globe and Mail.

“It’s about making people sit up and take notice. It’s about getting people out of their comfortable chair and getting them to think seriously about it.”

A strong case can be made that the 68-year-old independent senator and retired judge has done more than any other Canadian to educate the country about the painful realities that have dogged its history and institutions.

As chair of the Truth and Reconciliation Commission of Canada from 2009 to 2015, he documented the existence of cultural genocide in Canada’s residential schools. As a leader of justice and policing investigations in Manitoba and Thunder Bay, he exposed officials who were willfully ignoring racism in their police forces. And in his personal writing and speeches, Mr. Sinclair has hit even harder, describing a web of genocidal policies and apartheid laws that Canadian governments deployed in a “war” against Indigenous people – a war he says never really ended.

Although his formal inquiries have ended, his work is far from over. As he tirelessly follows a busy schedule of speeches across the country this year – including a recent one describing how Indigenous people were excluded from Confederation’s bargains – Mr. Sinclair continues to have an outsized influence in shaping Canada’s understanding of itself.

He sees himself as struggling to dismantle the legacy of a system that can be compared, in many ways, to the apartheid of South African history. Despite frequent hate messages on Twitter and Facebook, he continues to make that point on social media, shrugging off the anonymous attacks.

“There will be people who will always resist those statements,” he said in a two-hour interview in his Winnipeg office, symbolically located on an “urban reserve” under the authority of the Peguis First Nation.

“If you say that there’s been racism by white people against Indigenous people historically, you run the risk of white people standing up and saying, ‘No, we’re not racist.’ But if the evidence is there to support your position, you will also garner a level of support among the non-Indigenous population who will say, ‘Yes, we acknowledge it, so let’s get on with it.’”

At top left, Mr. Sinclair is ceremonially welcomed as TRC chair in 2009. The commission’s task was to learn what happened at the schools, such as Wabasca Residential School, whose unmarked graveyard is shown at top right. In 2015, commissioners unveiled the final report, shown at bottom right. Since then, Canadians have honoured residential-school survivors on annual Orange Shirt Days on Sept. 30, like the one shown at bottom left in Thunder Bay this year.  THE GLOBE AND MAIL, THE CANADIAN PRESS, REUTERS

His inquiries, beginning with the pioneering Aboriginal Justice Inquiry of Manitoba in the late 1980s, were prompted by tragedies and injustices: the deaths of young Indigenous people in Manitoba and Thunder Bay and in residential schools, neglected by the police and the courts and never properly investigated.

But from those tragedies, Mr. Sinclair found lessons that have shifted Canada’s public debates.

When he was appointed associate chief judge of the Provincial Court of Manitoba in 1988, he became the province’s first Indigenous judge and only the second in Canada. Within weeks, he was immersed in a hugely complex inquiry into the discrimination faced by Indigenous people in the province’s justice system. His relentless work to expose the barriers that hold back Indigenous people – and to find solutions – has scarcely paused in the three decades since then.

In interviews, he chooses his words carefully, speaking in calm and measured tones, even when his anger at historical abuses is clear. In speeches, he uses gentle humour and warm stories of his own family to make his points.

His goal is to reach Canadians who are open to learning about the country’s history – to give them “the sense that now they can talk about it, too.

“It’s not simply about confronting, it’s also about assisting. The intent from that is always, ‘So what are you going to do about it? So what should we do about it?’ Statements like ‘there’s racists in society’ that are not accompanied by ‘now what should we do about it?’ are not very helpful.”  MORE

Unravelling B.C.’s landmark legislation on Indigenous rights

If passed, the new law will make B.C. the first government in Canada to codify the United Nations Declaration on the Rights of Indigenous Peoples. Once implemented, it will significantly alter the way major resource projects are approached on Indigenous territories

BC UNDRIP legislation The Narwhal
From left to right: Terry Teegee, regional chief of the B.C. Assembly of First Nations, Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, and his wife, Joan Phillip, a notable environmental and Indigenous rights advocate. Photo: Province of B.C. / Flickr

With a wavering voice, Premier John Horgan spoke to the historic moment as the landmark Bill 41 was introduced in the legislature on Thursday.

“It is truly a great honour to stand in this chamber alongside Indigenous elders, leaders and people to introduce this bill,” the Premier said.

“I’m determined to walk a path of reconciliation.”

“We can have a better future than our past.”

What is UNDRIP and what does it mean for Canada?

Set out in 46 Articles, the declaration calls on state governments to engage with Indigenous nations, communities and cultures in such a way that bolsters the preservation of traditional territories and ways of life.

“It has the capacity to be transformative,” said Merle Alexander, legal counsel for the B.C. Assembly of First Nations and member and hereditary chief of Kitasoo Xai’xais First Nation. “The challenge will be: how do we implement it?”

Alexander, who co-drafted the legislation, said the act is designed to be a framework for reconciliation.

“The potential of this legislation is to create a new baseline,” Alexander told The Narwhal.

“When you enable government to enter into consent-based agreements, it could radically shift almost all government relationships.”

A new era of mutual consent

A major question about B.C.’s incorporation of UNDRIP centres around the question of “free, prior and informed consent” and whether or not it amounts to granting Indigenous peoples the power to veto projects that affect traditional territories.

“Nowhere in the act, nowhere in the declaration, do the words ‘veto’ ever come up. For the first part, it’s fear-mongering,” Alexander said.

Article 32 of UNDRIP grants Indigenous peoples “the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.”

It also says governments “shall consult and cooperate in good faith” with Indigenous peoples through their own representative institutions, in order to obtain their free and informed consent prior to the approval of “any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”

But Alexander said it isn’t an accurate framing of the issue to say UNDRIP will essentially grant nations the power to override government and industry.

“Veto is about overriding jurisdiction and overruling governments, whereas consent is about agreement and coming together and working through problems and finding solutions,” he said.

“In some ways consent and veto are polar opposites to each other.”

Major projects — including the Site C dam, the Trans Mountain pipeline expansion and extensive fracking operations in northeastern B.C. — have been widely criticised for being approved by government without the “free, prior and informed consent” of affected Indigenous communities and nations.

First Nation communities regularly find themselves in the position of waging legal battles against projects after they are approved, when major impacts to land and traditional practices can no longer be prevented.

From the legislature floor, Terry Teegee, regional chief of the B.C. Assembly of First Nations, spoke directly to the claim the new legislation will in effect give Indigenous peoples ‘veto powers.’

“To bring this to a hard point, some people will oppose this law because of their fears of what an era of mutual consent means. There is fear in the idea of sharing power and jurisdiction. I want to say strongly and clearly here this declaration law is not about providing any government with veto rights.”

“Consent is about agreement. It is a process to achieving and maintaining agreement … about respecting our laws as equals and as partners,” Teegee said.

“Consent is the future and most simply put, it’s about coming together as governments, as people seeking to find common ground. Although consultation law has empowered many First Nations in B.C., it has done little to create legal certainty.”

Too often the Crown does not engage in good faith consultation and negotiations and First Nations are turning to the courts to resolve these issues, Teegee said.

“One of the greatest uncertainties for project development in B.C. is not knowing if a project has the consent of affected First Nations. Laws that are co-developed … will deliver economic, legal certainty and predictability in this province.”

Teegee said the province has come a long way in respecting Indigenous self-determination and decision-making in recent years, pointing to very recent but ultimately rejected plan to turn a sacred lake in Tsilhqot’in territory into a tailings pond for a mine.

The task of adhering to the principles of UNDRIP presents a unique case in provinces such as B.C., where the vast majority of the landscape is considered unceded Indigenous territory, meaning treaties haven’t been signed.

Unceded land in B.C. is often referred to as Crown land, although that designation can be misleading because much of the province falls within traditional territories that have not been ceded but have not been claimed under title rights (as in the case of the Tsilhqot’in Nation).

Map of Canada, showing treaties. Map: Native-land.ca

Major clashes over natural resource projects, such as recent blockades to prevent the construction of the Coastal GasLink pipeline on traditional Wet’suwet’en territory, occur on unceded lands where Indigenous peoples have been guaranteed the right to fish, hunt and practice their traditional ways of life in perpetuity.

Forest management a natural place to start

Jack Woodward, an Aboriginal rights lawyer who served as legal counsel on the landmark Tsilhqot’in title case, said while Aboriginal rights and treaty rights are governed by the constitution, the province can look for ways to support reconciliation within its own jurisdiction.

He pointed to the way old-growth forests are being managed by BC Timber Sales, saying it is a matter of policy, not legislation.

Old-growth forests are a valuable heritage resource for First Nations because they contain the last archaeological record of pre-contact through culturally modified trees, Woodward said.

“That’s what UNDRIP speaks to and what’s referred to in the proposed legislation but the actual process on the ground is what is going to matter and they’re going to have to give way to make significant change.”

An enormous, freshly fallen western redcedar in a BC Timber Sales-issued cutblock in the Nahmint Valley near Port Alberni. The Nahmint Valley is in traditional territories of the Hupacasath and Tseshaht First Nations. Last year, the Hupacasath sent an open letter calling on the provincial government to halt old-growth logging in the Nahmint and work collaboratively with the band to protect the area’s old growth and, especially, the biggest trees and monumental cedars. Photo: TJ Watt

Alexander said the process of prioritizing where to start on UNDRIP implementation will begin now, but he agrees forestry is a logical place for improvement.

“It does make sense that forestry might be a very tangible and smart place to start,” he said. “The Jenga game has sorta collapsed a bit on forestry and it needs to be re-built.” MORE

 

Truth and Reconciliation? What Truth and Reconciliation?

By ignoring Indigenous rights and child protection, our parties have sentenced a vital national inquiry to a quiet death.

MurraySinclair.jpg
Murray Sinclair led the Truth and Reconciliation Commission, which in 2015 issued 94 ‘Calls to Action’ for Canada. As of July 2019, only 10 had been implemented. Where are our federal leaders on reconciliation? Photo via Shutterstock.

The fact that reconciliation isn’t a headline issue during this year’s federal election campaign, despite government and business determination to build a new pipeline for Alberta bitumen, is just one indication that ‘we’re not there yet.’” — Senator Murray Sinclair

Remember when Prime Minister Justin Trudeau promised to implement all of the Truth and Reconciliation Commission’s Calls to Action? That was memorable.

The CBC’s Beyond 94 is the best collection and summary available of Canada’s implementation of the TRC’s Calls to Action. Beyond 94 shows that, as of July 2019, 26 of the 94 Calls to Action had not even been started, and only 10 were fully completed.

The Conservatives never promised to follow the TRC’s Calls to Action, and it’s clear they are utterly opposed to any reconciliation with Indigenous peoples. So a little balance is necessary in assessing the government’s performance.

Let’s look at four of the TRC’s Calls to Action. Where are the political parties on these four items?

Implement UNDRIP

Calls to Action 24, 27, 28, 42, 43, 44, 48, 50, 57, 67, 69, 70, 86 and 92 commit Canada, churches, universities and Canadians to implement through domestic legislation and other measures the United Nations Declaration on the Rights of Indigenous Peoples.

In response, the House of Commons passed Bill C-262 in 2018 to require Canadian law to harmonize with UNDRIP. After it became apparent in 2019 that Conservative efforts to prevent a third and final reading in the Senate for C-262 would succeed, the Liberals announced they would once again campaign on a promise to legislate UNDRIP if re-elected in the fall.

But C-262 was a private member’s bill by NDP MP Romeo Saganash, who is not running again in this year’s election. Exactly why wasn’t his bill a Liberal government bill?

The Greens and NDP have also promised legislation to implement UNDRIP. But let’s unpack this a bit.

UNDRIP’s most important provision is that Indigenous nations have a right to free, prior and informed consent about anything that will happen on their lands. Conservatives especially, and others, are petrified this might mean that Indigenous peoples can say no to pipelines and any other proposal their colonial governments set their minds to. In their view, the right to consent cannot possibly mean the right to say no. This is the fundamental reason that former prime minister Stephen Harper refused to allow Canada to endorse UNDRIP in 2007 at the United Nations.

After Bill C-262 died in the Senate, the Liberals said again that if re-elected they will implement UNDRIP. Fool me once, shame on you…

And what about the NDP? I find their position to be very confusing. Do they support the liquefied natural gas pipeline and gas plant in northern B.C. even though hereditary chiefs are opposed to it?

The NDP seems to be in favour of the Coastal GasLink LNG pipeline beginning in Dawson Creek and ending at a plant in Kitimat. This position seems to be their only chance of retaining retiring MP Nathan Cullen’s seat in northern B.C. But how can the NDP tell the Liberals: “You. Bought. A. Pipeline.” and then support a different pipeline (kinda sorta, nudge, nudge, wink, wink) even if hereditary chiefs are opposed? The same problem applies to the Site C dam and other projects that require major intrusions onto Indigenous lands. The UN Committee on the Elimination of Racial Discrimination told Canada that it is concerned “that the realization of the Site C dam without free, prior and informed consent, would permanently affect the land rights of affected Indigenous peoples in the Province of British Columbia. Accordingly, it would infringe Indigenous peoples’ rights protected under the International Convention on the Elimination of All Forms of Racial Discrimination.”

Again, for balance, let’s recognize that the Conservatives do not believe that Indigenous peoples have any right whatsoever to free, prior, informed consent over developments on their land. All fossil fuel projects are good. Indigenous peoples lost their land rights because England said so. End of story. God save the Queen and all of the colonialism and white supremacy she gave to Canada.

Independent Senator Murray Sinclair told APTN: “That [UNDRIP] doesn’t mean that we’re vetoing [proposals]. It doesn’t mean that First Nations people, or Indigenous people outside of Indian reserves, are vetoing anything. Just because they say you can’t run a pipeline across my land doesn’t mean you can’t run it somewhere else.”

582px version of Idle No More signs
NDP MP Romeo Saganash took it upon himself to create a bill aligning Canada’s laws with that of the United Nations Declaration on the Rights of Indigenous Peoples. Conservatives killed it in the Senate. Photo by rmnoa357Shutterstock.com.

 

Child welfare

As you would expect, the TRC’s first five Calls to Action are about child welfare. The Government of Canada, and therefore the people of Canada, have discriminated against Indigenous children and youth for well over a century. In 1977, the Canadian Human Rights Act was finally enacted, but it included the odious provision that no one was allowed to allege discrimination under the Indian Act. Finally, in 2008, section 67 was repealed. MORE

It’s time for a Recognition of Wrongs framework

Image result for policy options: It’s time for a Recognition of Wrongs framework
Photo: Shutterstock, by Nalidsa

pon taking power in 2015, Prime Minister Trudeau characterized Canada’s relationship with Indigenous peoples as of primary importance: “No relationship is more important to me and to Canada than the one with Indigenous Peoples. It is time for a renewed, nation-to-nation relationship with Indigenous Peoples, based on recognition of rights, respect, co-operation, and partnership.” As a token of this friendship, Trudeau promised an extensive review and reconfiguration of federal laws and policies that concern Indigenous peoples.

In 2018, Carolyn Bennett, the Minister of Crown-Indigenous Relations, initiated consultative rounds with experts for what would become the draft Recognition and Implementation of Indigenous Rights Framework (RIIRF) legislation. The stated intent was to provide a legislative framework to recognize and animate Indigenous rights. The experts consulted were highly critical of the assumptions and objectives of the legislative draft, and after a couple of redrafts the matter was consigned to the political closet of failed initiatives. The RIIRF initiative left many participants suspicious of the federal government’s intentions, its truthfulness and its competence. After all, given the gap between Indigenous aspirations, current law and the proposed recognition legislation, one had to assume either bad faith or stupidity in the conception of the initiative.

The RIIRF was deeply problematic because it functioned to limit rather than enable the exercise of existing Indigenous rights. Moreover, the draft did not measure up to the requirements set by Canadian constitutional law and was inconsistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). UNDRIP is the international gold standard for recognition of Indigenous rights. The Harper Conservatives were part of a cabal of four states resisting the 2007 adoption of the declaration by the UN, and once the declaration was passed, they continued their foot-dragging at home, maintaining Canada’s “objector” status. It wasn’t until 2016 that the Trudeau Liberals removed the objector designation, fully endorsing Canada’s adoption of the declaration. Now, Canada must attend to implementation — to making its policy and legislation consistent with UNDRIP.

The RIIRF framework does not refer to Indigenous nations as governments, instead describing them as legal entities likened to “natural persons,” a legal term with the potential for the corporatization of Aboriginal and treaty rights. Corporation models reframe Indigenous government so that Indigenous rights resemble those of corporations — whose duties are to shareholders rather than citizens — rather than being a distinct form of rights that arise from our prior existence on our territories (inherent rights) and from treaties. This model does not produce governments with constitutional status in a federal order. This provision was recycled from the failed federal 2002 First Nations Governance Act, which was rejected by most First Nations.

Governments of settler states have a most difficult time accepting responsibility for actions that violated the rights of Indigenous peoples, and in particular with acknowledging that the state itself is built on an expropriated base of Indigenous territories, sovereignties and resources. In Canada, reconciliation initiatives have been focused on a few high-profile historical errors, such as the residential school policy, the criminalization of Indigenous religious practices, the forced relocation of certain Inuit communities and the incarceration and state execution of Indigenous resistance leaders in the 1885 Metis and Indian resistance to colonial occupation of their lands. It has not been applied to the intergenerational consequences of these and related practices or to settler state positions and practices that continue colonialism today.

Moreover, reconciliation has not taken up the ideology, the structures and the processes that animated these and other fundamental human rights violations and that facilitate the contemporary continuance of those violations. In spite of the evident contradiction with its claims about the importance of the relationship with Indigenous peoples and the objective of reconciliation, the Trudeau government is hell-bent on continuing the Canadian tradition of appropriating Indigenous lands and resources and ignoring Indigenous dissent, including by ignoring the UNDRIP requirement for free, prior and informed consent over the use of unceded traditional Indigenous territories. Pipelines, anyone? MORE