UN declaration guides reconciliation

MIKE DEAL / WINNIPEG FREE PRESS FILES</p><p>Manitoba Premier Brian Pallister says signing on to the United Nations Declaration on the Rights of Indigenous Peoples will cause ‘confusion and uncertainty’ for Canada.</p>

Glass: Canada’s crisis rooted in 500-year-old doctrine

In 1483, a pope penned a document that would justify taking lands of those seen as inferior

Students walk out of classes in solidarity with Indigenous land defenders in Edmonton on Wednesday. (Postmedia file photo)

The protests and blockades spreading across Canada since the new year in support of Wet’suwet’en land rights have kindled a wide-ranging sense of national crisis.

Manufacturers have complained that rail line blockades brought production to a standstill. Conservative politicians have sounded alarms of domestic terrorism, while their supporters advocate calling out the Armed Forces.

In November, British Columbia approved legislation to harmonize provincial laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Although the B.C. legislature’s efforts may bear fruit in addressing the deep-seated Indigenous concerns that reached this national flashpoint, a related — and perhaps preliminary — issue needs the public’s consideration.

That issue stems from the quill of Renaissance-era Pope Alexander VI, who crafted what scholars refer to as the “doctrine of discovery,” his too-clever solution to an ongoing conflict between Spain and Portugal over “lands newly discovered.” In 1493, Alexander divided the administration of the Americas into two halves; a western half for Spain, an eastern half for Portugal.

In agreement with one of his predecessors, Nicholas V, Alexander declared that Christian powers could rightfully explore, settle and appropriate wealth from the lands of peoples who were then known as Saracens (Muslims), infidels and savages.

These declarations were hotly contested by other European kingdoms at the time. For the Spanish theologian and lawyer Francisco de Vitoria, the pope was mistaken in thinking his declarations could grant sovereignty in the new world to Spain. England’s Henry VIII and the Holy Roman Empire’s Charles V argued popes had no such authority over the new world, but kings did.

Whichever the route, by the mid-16th century European powers understood themselves to have an inherent right to extend their sovereignty over lands their explorers had claimed on the basis of “discovery.”

Although complexities of Renaissance theology, law and politics may seem remote from us, the doctrine of discovery is not remote at all. It remains the legal foundation of modern states such as Canada, the U.S. and Australia. North American courts have long employed it to articulate why European powers had a legitimate claim to their newly discovered lands.

If we follow the paper trail of our law, the bottom layer is the still-breathing-after-all-these-years doctrine of discovery.

The core of this doctrine, as U.S. Chief Justice John Marshall concluded in 1823, is that the “character and religion of the (new lands’) inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy.” Marshall’s claim that Indigenous character and religion are sufficient proof to justify the appropriation of Indigenous lands and the regulation of Indigenous lives is often acknowledged by American courts, legislatures and presidents. A recent example: in 2005 Supreme Court Justice Ruth Bader Ginsburg held that discovery was still a determining factor in the court’s dismissal of an Oneida Nation plea to exclude its recently repurchased traditional lands from municipal property tax in Sherrill, N.Y.

Canada’s courts have invoked the doctrine of discovery since the foundational case of St. Catherine’s Milling and Lumber v. the Queen (1885-88). As well, Marshall’s work was incorporated into the Canadian common law to consider the “beneficial use” of Treaty 3 lands in northwestern Ontario. The B.C. Court of Appeal explicitly drew on it in its 2013 decision, Chief Mountain v. British Columbia. The court acknowledged Marshall’s work was still “possibly persuasive authority.”

But Canada’s most common reliance on discovery occurs in the simple phrase, widely proclaimed in the wake of the Supreme Court’s 2004 decision in Haida Nation v British Columbia (Minister of Forests), that the purpose of recognizing “Aboriginal and treaty rights” is to reconcile Indigenous communities’ long residence on the land with the “assertion of Crown sovereignty.” What else other than the doctrine of discovery bolsters this assertion? It’s simply a polite way of referring to the acts of men such as John Cabot, Jacques Cartier and George Vancouver, who climbed out of boats, planted flags and crosses, and made assertions.

The elephant in the room of Canadian sovereignty is this: How does one party’s “assertion” necessarily require another party to submit to that assertion? Canada’s exclusive sovereignty over Indigenous lands and lives rests solely on an inherited belief in the deficiency of Indigenous “characters and religion.” This is not that different from the most basic assumption animating other assertions of sovereignty that Canadians rightfully hold in contempt: Aryan supremacy, American Jim Crow, South African apartheid.

If Canada’s assertion of sovereignty over Indigenous peoples is rooted in such noxious legal ideas, it is far past the time to renounce them formally and explicitly. If Canada’s Liberal federal government meant anything it said about undertaking a new relationship with Indigenous communities, surely renouncing the doctrine of discovery would be a meaningful initial step.

If harmonizing UNDRIP with Canadian law is to be a worthwhile process, it would make sense to renounce the idea that still undergirds many Canadian perspectives, and that will cause much resistance to UNDRIP’s successful implementation. SOURCE

Nipissing First Nation blasts ‘mainstream media’ over Wet’suwet’en coverage

Nipissing First Nation chief and council is signalling its support for the Wet’suwet’en hereditary chiefs opposed to the construction of a natural gas pipeline through their traditional territory in British Columbia. Michael Lee/The Nugget

Nipissing First Nation chief and council are slamming the “mainstream media” for misrepresenting Indigenous nations and voices in the ongoing dispute over a natural gas pipeline in British Columbia opposed by Wet’suwet’en hereditary chiefs.

In a statement posted on the Nipissing First Nation website Thursday, chief and council say “it can be difficult to distinguish facts from rhetoric and truth from hidden agendas” in light of the “barrage of information” from social media and the misrepresentation from mainstream media.

They also point to the 1997 Supreme Court of Canada ruling which said the Wet’suwet’en people, as represented by their hereditary leaders, had not given up rights and title to their 22,000-square-kilometre territory.

“Nipissing First Nation stands in solidarity with the people of Wet’suwet’en who are protecting their traditional territory from infringement. We must show support not only for the rights of the Wet’suwet’en people, but also to affirm our own rights to govern and protect our lands,” the statement says.

The show of support from Nipissing First Nation comes as Wet’suwet’en hereditary chiefs were set to meet for a second day with senior federal and provincial ministers Friday to discuss the Coastal GasLink pipeline project in B.C.

Demonstrations and rail disruptions have escalated in recent weeks following the arrests earlier this month of hereditary chiefs and their supporters after the RCMP enforced a court injunction, granted to Coastal GasLink, that called for the removal of any obstructions from roads, bridges or work sites the company has been authorized to use in Wet’suwet’en territory.

Two rallies have since taken place in North Bay in support of the Wet’suwet’en hereditary chiefs.

Coastal GasLink also has agreed to a two-day pause in its activities in northwestern B.C. and the RCMP has committed to ending patrols along a critical roadway while the negotiations unfold.

Nipissing First Nation chief and council, meanwhile, say Canada is breaking its own rule of law and has yet to ratify the United Nations Declaration on the Rights of Indigenous Peoples.

They add that the support shown across the country, and even globally, is evidence that many people who have taken the time to inform themselves understand the injustices Indigenous people face.

“Nipissing First Nation’s leadership supports our Wet’suwet’en family’s sovereign right to self-determination, including the right to govern and protect their lands. They need the time and space to move forward with a unified voice in whatever direction they choose to take,” they said.

“What we’ve seen from mainstream media and Canada’s leadership is alarming and distressing. It’s an example of reconciliation at its worst, and colonization at its best. This is not just about pipelines. Indigenous people deserve better.”

Anishinabek Nation Grand Council Chief Glen Hare, meanwhile, is calling on Prime Minister Justin Trudeau to meet with the hereditary chiefs and come to a “peaceful and respectful resolve” together.

In a statement, Hare said the events unfolding harken back to September 1995 when protesters occupied Ipperwash Park and unarmed protester Anthony “Dudley” George was killed by an Ontario Provincial Police sniper.

He also highlighted other longstanding issues — 25-year boil water advisories in Ontario and Canada’s decision to challenge the Canadian Human Rights Tribunal compensation ruling for First Nations children, youth and families — calling them not just First Nations issues, but human rights issues.

“We understand that some of our citizens are participating in protests and we hold the health and safety of First Nation citizens in the highest regard,” he said. “We urge citizens not to engage or dialogue with those making racist comments or who are exhibiting harassing behaviour.” SOURCE

Canada does not deserve seat at UN Security Council: Opinion

UN Security Council

A gate on the Morice River Forest Service Rd is dismantled during RCMP operations. Photo: Unist’ot’en Village/Twitter.

Pam Palmater
Special to APTN NewsReconciliation is dead. It died when the RCMP invaded Wet’suwet’en territory with heavy machinery, helicopters, weapons and police dogs to forcibly remove Wet’suwet’en peoples and supporters from their homes on their own lands.In quite literal terms, the RCMP destroyed the “reconciliation” sign posted on the access point to the territory, to make way for pipeline workers to force a pipeline on Wet’suwet’en Yintah (lands) without consent from hereditary chiefs.While they were at it, Coastal Gaslink pipeline workers removed the red dresses memorializing the thousands of Indigenous women and girls who have been abused, exploited, disappeared and murdered – some at the hands of those who work in man camps.

In reaction to this violation of Indigenous land rights and the aggressive invasion of Wet’suwet’en lands by the RCMP, grassroots Indigenous peoples and Canadian allies have engaged in protests, rallies, marches and blockades all over Turtle Island.

UN Security Council

300 people blocked the intersection at Cambie and Hastings in Vancouver in support of Wet’suwet’en hereditary chiefs. Photo: Simon Charland/APTN

Meanwhile, Liberal Prime Minister Justin Trudeau is not even in Canada. He is travelling the world campaigning for a seat on the United Nations (UN) Security Council.

Canada is a state perpetrator of genocide against Indigenous women and girls. The national inquiry found that all levels of government – federal, provincial, territorial and municipal – have engaged in historic and ongoing genocide; a form of gendered colonization which targets Indigenous women and girls for violence and denies them basic human rights protections. This genocide includes the theft of Indigenous lands and resources and the criminalization of Indigenous peoples who peacefully defend their lands and peoples from the violence, especially from the extractive industry.

The UN Security Council should not welcome a state perpetrator of genocide that has failed to accept responsibility for the genocide and failed to act urgently to end it. Similarly, member states of the UN should recall that Canada was one of only four states that fought against the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) which protects the rights of Indigenous peoples to self-determination, control over their traditional lands and resources and protections from forced removal from their lands by the state. While Canada has reversed its position on UNDRIP and claims to now support it unconditionally, it has failed to implement it into domestic law (with the exception of the Province of British Columbia).

The UN Security Council’s mandate is to maintain international peace and security. They are responsible to identify threats to peace or acts of aggression and have the authority to impose sanctions or authorize intervention. The Council has 15 members, five are permanent (China, Russia, France, United Kingdom and the United States) and ten are non-permanent and replaced on a rotating basis. Canada is vying for one of five seats that will be elected in June alongside other countries like Norway and Ireland. Canada lost its seat under the former Conservative Prime Minister Stephen Harper. To this end, Trudeau is campaigning on the African continent and will soon be headed to the Caribbean and eventually Germany to make his case.

UN Security Council

A truck sits by the tracks near the Tyendinaga Mohawk Territory. Photo courtesy: Annette Francis

Yet, it is hard to contemplate how the member states of the UN could vote for Canada given its record of human rights abuses and genocide of Indigenous peoples. Keep in mind that both the UN and the Organization of American States (OAS) have shared their grave concerns about the National Inquiry into Murdered and Missing Indigenous Women and Girls finding of ongoing genocide in Canada. The UN Committee for the Elimination of Racial Discrimination (UNCERD) has also asked Canada to urgently withdraw the RCMP and weapons from Wet’suwet’en territory and to halt any major development projects on Indigenous territories unless they have consent.

The UN member states should also consider that Canada has continuously failed to act on the numerous recommendations from various UN human rights treaty bodies pleading with Canada to end its grave human rights violations against Indigenous peoples, especially Indigenous women. Whether it is the UNCERD, UN Human Rights Council, UN Committee for the Elimination of Discrimination Against Women (CEDAW), Canada consistently fails to remedy these serious human rights breaches.

While there will be many other political considerations that go into each UN member state’s decision as to whether to support Canada’s bid for a seat on the UN Security Council, Canada’s record of ongoing genocide and human rights abuses against Indigenous peoples, and its recent armed invasion of Wet’suwet’en territory should give them pause. Canada has long pointed fingers around the world, criticizing human rights breaches, yet it has failed to address its own – and it’s killing our people.

UN Security Council

Red dresses hang at the 27 km marker along the Morice Forest Service Rd. Photo: Lee Wilson/APTN

Canada does not deserve a seat at the UN Security Council unless and until they address peace and security in their own country. Indigenous women and girls continue to disappear and be murdered, Indigenous peoples are grossly overincarcerated, and our children are stolen into the foster care system at rates higher than during residential schools.

Our lands and waters are being destroyed by massive development and extractive projects without regard for the cost to the planet or human lives. Canada’s continued acts of genocide and ecocide will eventually impact other states as climate change cannot be contained within artificial political borders. The planet is in crisis and the UN Security Council will have to face ever growing threats to peace and security worldwide. The last thing they need is to be guided by states that don’t address their own human rights, peace and security issues.

Pamela Palmater is a Mi’kmaw citizen and member of the Eel River Bar First Nation in northern New Brunswick. She has been a practicing lawyer for 20 years and currently holds the position of Professor and Chair in Indigenous Governance at Ryerson University. SOURCE

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

What we mean when we say Indigenous land is ‘unceded’

Inside the Gidimt’en Checkpoint on Wet’suwet’en territory in December 2019. The camp was dismantled by Coastal GasLink contractors in early 2019, and then rebuilt and reoccupied. Photo by Michael Toledano

You might be living on unceded land.

To be more precise: the Maritimes, nearly all of British Columbia and a large swath of eastern Ontario and Quebec, which includes Ottawa, sit on territories that were never signed away by the Indigenous people who inhabited them before Europeans settled in North America. In other words, this land was stolen.

What to do about it, however, is deeply complex ⁠— and legal questions about how to handle claims to unceded land have become a subject of public discussion as members of the Wet’suwet’en Nation in northeastern British Columbia have reoccupied their territory and attempted to block the Coastal GasLink pipeline. Similar cases over Indigenous land titles are moving through courts across Canada.

Canada’s Constitution is clear that Indigenous land rights exist, said Benjamin Ralston, a lecturer and researcher at the Indigenous Law Centre at the University of Saskatchewan. But in practice, fights over exactly what those rights are can take decades to resolve in court or in treaty negotiations, revealing “cognitive dissonance” in the system.

“The real problem is, what do we do about it now, while these slow processes are proceeding?” he said.

In the case of the Wet’suwet’en and Coastal GasLink, at issue is a divide between the traditional Wet’suwet’en legal system, Canada’s legal system, those who have stood to protect the land in question and those who want to see the pipeline built.

Under Wet’suwet’en law, authority over the nation’s 22,000 square kilometres of unceded territory lies with hereditary chiefs from five clans, who oppose the pipeline. However, there are also five elected band councils created by Canada’s colonial Indian Act, and some of the councils have supported the project.

A 1997 Supreme Court of Canada decision affirmed that the provincial government can’t extinguish Wet’suwet’en rights to their land. However, the court also sent the case back from a second trial that hasn’t yet happened, leaving key questions unresolved.

Last year, the RCMP violently arrested Wet’suwet’en people and supporters in the disputed area, with the Guardian reporting earlier this year that police had been prepared to use lethal force. Earlier this month, the RCMP set up a checkpoint to control access to the area after a B.C Supreme Court judge extended an injunction to force out the Wet’suwet’en in the camps and allow construction on the pipeline to continue.

“We are not trespassing,” Ta’Kaiya Blaney, one of several Victoria, B.C., activists arrested and released after a protest supporting the Wet’suwet’en earlier this week, said in a video posted on Facebook.

Wet’suwet’en Nation territory in northeastern British Columbia is just one example of a dispute over unceded land.

“Coastal GasLink is trespassing, those cops are trespassing. They have no jurisdiction to violate Indigenous Peoples and Indigenous youth on stolen land.”

‘Duty to consult’ an imperfect solution

The Wet’suwet’en are far from the only ones asserting their title to their traditional lands.

In Nova Scotia, Mi’kmaq people have pushed for recognition of their unceded territory. In Ottawa, several Algonquin groups claim the land that Parliament Hill and the Supreme Court of Canada sit on. And in 2014, Tsilhqot’in Nation in B.C. became the first to prove title to their land in court.

In 2017, about 140 groups of Indigenous people who never signed treaties were negotiating with Canada’s federal government, the New York Times reported.

Several court cases have reaffirmed that the Canadian government has a duty to consult Indigenous people in cases that will impact their rights, which is meant to be an extra protection while land-title cases get resolved. But that protection is imperfect: duty to consult “is not necessarily going to give you the full benefit of stopping a project,” Ralston said.

In general, courts have also been reluctant to allow Indigenous land claims as a reason to block injunctions.

In a broader sense, however, there are international considerations as well. In November, B.C. passed a bill aligning its laws with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), a landmark document that, among other things, protects Indigenous Peoples’ right to self-government and right to consent to resource-development projects on their territories.

B.C. is the first Canadian jurisdiction to implement UNDRIP ⁠— the document was passed by the UN General Assembly in 2007 over Canada’s objections, and the country has so far been reluctant to formally implement it. It’s not clear how the document could play in future disputes.

In the case of Coastal GasLink, B.C.’s independent Human Rights Commission, Amnesty International and the UN Committee on Racial Discrimination have all criticized the provincial government, saying Coastal GasLink violates UNDRIP principles.

B.C. Premier John Horgan, meanwhile, has said the province’s law is not retroactive and Coastal GasLink will go ahead. SOURCE

RELATED:

Coastal Gaslink pipeline threatens healing centre, says Unist’ot’en Camp

Horgan’s Pipeline Push Betrays His Reconciliation Promise

COVER.Horgans-Pipeline-Unistoten.jpg

‘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

RELATED:

Supreme Court unanimously dismisses B.C. appeal in Trans Mountain case
Oil and gas industry applauds Supreme Court’s dismissal of pipeline case
The criminalization of Indigenous land defenders is a global concern

‘Rule of law’ isn’t only B.C., Canadian law: Bellegarde

(Perry Bellegarde is national chief of the Assembly of First Nations. APTN file)

Perry Bellegarde is not happy with B.C. Premier John Horgan’s spin on the “rule of law.”

The national chief of the Assembly of First Nations said his members support the “governance and decision-making process of the Wet’suwet’en people. Canada and British Columbia must do the same.”

It’s the second time Bellegarde has involved himself in the pipeline dispute playing out in northern B.C.

Last January the national Indigenous leader told RCMP to stop their violent incursion on Wet’suwet’en traditional territory south of Houston, B.C.

Now Bellegarde said the “rule of law” cited by Horgan Monday as a reason Coastal GasLink construction should continue isn’t only Canadian law.

The “rule of law” includes honouring First Nations laws in their traditional territories,” Bellegarde told APTN News.

“The necessity of respecting those laws and traditions is further underlined by the provisions of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). Right now, the federal government and BC government must meet with the Wet’suwet’en leadership and immediately work to resolve this matter through dialogue not violence.”

Horgan, whose NDP are in power thanks to a partnership with the B.C. Green Party, said adopting UNDRIP doesn’t give Indigenous opponents a veto over the multi-billion-dollar project to ship natural gas to foreign markets.

“I don’t understand why we’re having this conversation,” agreed Ellis Ross, a former Haisla chief in northern B.C. and now Liberal MLA.

Two types of law

“We don’t have two types of law…We can’t pick and choose which law we’re going to abide by today and just decide that, ‘OK, some certain groups of people can define their own laws.’”

But Kate Kempton, an Indigenous rights lawyer in Toronto, said Canada could absolutely have two parallel laws.

“Unless and until Crown governments recognize that or accept that a space needs to be carved out for an equal status Indigenous legal realm in Canada…you’re going to end up with a very imperfect and unfair set of answers.”

Kempton said New Zealand and Australia have made such a space.

“Suppose an Indigenous law was as applicable here as Canadian law. That would mean that Coastal GasLink would have to get a set of permits from the Crown government, but they’d also need a set of permits from the relevant Indigenous government.”

Kempton said Wet’suwet’en pipeline opponents are staring down colonial governments and corporations as part of Indigenous self-determination.

“What the Crown governments have to do instead of continuing to fund poverty, they need to find a way for real economic support in the trillions of dollars to go toward Indigenous governments to figure out for themselves how self-determination, self-governance is going to work.”

Then, instead of fighting each other in court or at barricades on the ground, Kempton said they would know “what is our government, who’s in it and who’s going to decide when there’s an external project within our Nation yes or no” – instead of elected versus hereditary versus Canadian.

“Right now, the support and structure isn’t there so you end up with this messy situation reflected in this case,” the lawyer added.

Watch Todd Lamirande’s story on the latest from Wet’suwet’en Territory

The ‘messy situation’ in B.C. has attracted the attention of  international and national civil and human rights groups.

The United Nations, Amnesty International, B.C. Human Rights Commission and B.C. Civil Liberties Association all released statements slamming the position of Canada’s elected politicians on Indigenous rights.

“All of your governments have recognized that significant shifts are required to move forward with reconciliation with Indigenous peoples and show full regard for their rights in the Constitution and under international law,” said Amnesty’s English and French secretaries general Alex Neve and France Isabelle-Langlois.

“If promises to do so are not met with concrete action, very much including tough and challenging decisions such as those required here, then the words remain empty.  That is the shameful history that Canada absolutely must leave behind.”

Ross, who supports the pipeline project and the jobs it offers Indigenous communities, was critical of the UN alleging Canada’s resource projects are racist.

“The UN is highly irresponsible in not talking to everybody to get a complete picture of what’s happening here in B.C. over the past 14 years,” he said in a telephone interview Tuesday.

“They took one story out of B.C. and they figured that all the Aboriginals in B.C. are being trampled on and that couldn’t be further from the truth.”

In a replay of last January, RCMP took control of a section of unceded Wet’suwet’en Nation land Monday in what they termed a safety measure.

They are blocking traffic from moving in and out of the narrow Morice West Forest Service Road south of Houston that winds its way through snowy forest land to camps operated by the Gidimt’en and Unist’ot’en clans.

CGL claims camp members interfere with its ability to construct the pipeline and won an interlocutory injunction from a B.C. Supreme Court judge. It said it was up to the RCMP to enforce the injunction.

Preserve the safety

“Our duty is to preserve the safety of everyone involved in this dispute, and to prevent further contraventions to the BC Supreme Court ordered injunction,” said Dawn Roberts, in a release from B.C. RCMP.

“As a result, an access control checkpoint has been established at the 27 kilometer mark of the forestry road. The purpose is to mitigate safety concerns related to the hazardous items of fallen trees and tire piles with incendiary fluids along the roadway, as well as to allow emergency service access to the area.”

The felled trees and tire piles were discovered last week by CGL workers and reported to the RCMP.

“We remain committed to facilitating the ongoing dialogue between Indigenous communities, Coastal GasLink and Government, in the hopes that these efforts will result in a safe and peaceful outcome,” Roberts added in the release.

She said people allowed to pass the police checkpoint were:

-All hereditary and elected chiefs;

-Elected and other government officials;

-Journalists with accreditation from recognised media outlets;

-Persons providing food, medicine or other supplies or services required for the well-being and safety of persons behind the blockades;

-Other persons as approved by the RCMP operations commander or delegate.

“For purposes of safety, all persons entering must indicate their specific destination, estimated time of return and indicate their understanding of the hazards present. Vehicles and persons entering will be logged to ensure awareness of who has entered and safely exited. All other vehicles will be turned away,” the release added.

“All occupants of vehicles exiting the area who were not already spoken to on their way in will be briefly detained per paragraph 10 of the BC Supreme Court injunction, asked for identification, and provided a copy of the court order before they are permitted to go on their way.”

Meanwhile, the interim leader of the B.C. Green Party was not available for an interview Tuesday.

And the president of CGL again asked for a meeting with the hereditary chiefs.

“We believe that by working together, we can address the interests of the Office of the Wet’suwet’en while continuing to provide significant benefits to the Wet’suwet’en and other Indigenous communities,” David Pfeiffer said in a letter posted to the company’s website Tuesday.

The chiefs, who don’t want the pipeline on their unceded territory, were in meetings Tuesday. SOURCE

Terence Corcoran: The Trudeau Liberals will have to live with being in breach of a UN declaration they should never have adopted

In other words, says the UN, Canada should stop all work on its three largest energy projects worth billions in new investment

Canada’s Prime Minister Justin Trudeau welcomes Members of Parliament to the House of Commons as parliament prepares to resume for the first time since the election in Ottawa, Ontario, Canada December 5, 2019.Patrick Doyle / Reuters

According to an ancient political proverb, governments that pander to the globalist sword fighters at the United Nations run a grave risk of getting their policy necks lopped off. And so, as prophesied, that object now rolling across the Canadian West toward Ottawa is the Trudeau government’s self-righteous 2016 decision to wrap its arms around UNDRIP — the 2007 United Nations United Declaration on the Rights of Indigenous Peoples.

With Canada now signed on to the United Nations’ feel-good indigenous agenda, UN operatives are back and claiming, as is their practice, that Canada is failing to live up to the full meaning of the declaration, which among other things requires Ottawa and the provinces receive full agreement from Indigenous peoples before proceeding with economic development.

Through a subgroup called the Committee on the Elimination of Racial Discrimination (CERD), the UN has drafted a two-page decision calling on Canada to “immediately cease” construction of the Trans Mountain pipeline expansion, to “immediately suspend” construction on the Site C dam in British Columbia and to “immediately halt” all work on the Coastal Gas Link LNG pipeline.

In other words, says the UN, Canada should stop all work on its three largest energy projects worth billions in new investment. According to the “decision”— following typical global bureaucratise — CERD said it is “concerned” about the pipeline plans, “disturbed” by forced removal and harassment of protesters and “alarmed” by what it calls escalating threats of violence against Indigenous people.

Had the Trudeau government refrained from enthusiastically adopting the UN Indigenous rights declaration in 2016, the quick answer to these insistent directives would be to tell the global agency to look to parts of the world where rights are actually being trampled on. China, for example. Or how about Venezuela? Iran, anyone?

The only option is to let the pipelines be built and to hell with the UN.

But having signed on to the declaration, Canada is an easier target, a goose with its self-righteous neck sticking out for easy political removal. When Canada adopted the declaration in May of 2016 — nine years late — the formal announcement by Indigenous Relations Minister Carolyn Bennett was greeted with a standing ovation at the UN. Canada, she said, is “now a full supporter of the declaration, without qualification.”

Well, not quite. There are a couple of clauses in the declaration that most legal scholars and clear-eyed politicians view as all but impossible to adopt within Canada’s constitutional framework.

Even former Trudeau justice minister Jody Wilson-Raybould sounded more than skeptical about the UNDRIP adoption. In a 2016 speech, she said much as she would like to cast Canada’s Indian Act into the fire of history, “simplistic approaches, such as adopting the UNDRIP as being Canadian law, are unworkable.” In another comment, she said “it is important to appreciate how come it cannot be simply incorporated, word for word, into Canadian law.”

But that is exactly what the UN wants Canada to do. In its decision calling for the shutdown and suspension of Trans Mountain and Coastal Gas Link pipelines, CERD insists that Canada constitutionally adopt a UNDRIP legal concept that requires Canadian governments to seek the “free, prior and informed consent” of Indigenous people over large-scale economic development projects that may impair their rights, culture and way of life.

Free, prior and informed consent — known in the business as FPIC — is imbedded in UNDRIP and was for a decade the major reason Canada did not sign the 2007 declaration. Canada was so strongly opposed to the idea that it was the only UN member to refuse the UN’s FPIC principles.

Even after the Trudeau government adopted UNDRIP, it continued to fudge the issue. A recent paper in the International Indigenous Policy Journal says the latest Trudeau government pronouncement on FPIC is weak. The best Ottawa can do is claim that it “recognizes that meaningful engagement with Indigenous peoples aims to secure their free, prior and informed consent.”  A policy that “aims to” do something is not a hard policy.

Canada’s Supreme Court has ruled that governments, including provinces, have a “duty to consult” Indigenous peoples, but legal experts say FPIC takes the concept several steps beyond mere consultation to requiring full “free will” agreement.

The province of British Columbia has also embraced UNDRIP, so it will have to find a way to respond to the UN criticisms of the Site C hydro project.

The Trudeau Liberals are now in a bind of their own making. Ottawa moved to adopt UN principles that are incompatible with Canadian constitutional law, and now the UN is knocking at Canada’s door demanding action.

Alberta has firmly responded: “With all the injustice in the world,” said Minister of Energy Sonya Savage, “it’s beyond rich that the unelected, unaccountable United Nations would seemingly single out Canada — one of the greatest champions of human rights, democracy and the rule of law.”

What will Ottawa do? In his post-election mandate letter to Carolyn Bennett as minister of Indigenous relations, the prime minister instructed her to “support the minister of justice and attorney general of Canada in work to introduce co-developed legislation to implement the United Nations Declaration on the Rights of Indigenous Peoples by the end of 2020.”

If legal scholars and Jody Wilson-Raybould are right, introducing “free and prior consent” into Canadian law is a legal impossibility, which means that the Trudeau Liberals will have to live with being in breach of a UN declaration they should never have adopted.

The only option is to let the pipelines be built and to hell with the UN.

In the wake of Indigenous rights declaration, B.C.’s lawyers make ‘distasteful’ arguments in First Nations title case

The province is arguing the Nuchatlaht, who have never ceded control of their traditional territory in Nootka Sound on Vancouver Island, abandoned their land — while the nation reminds the court their land was stolen.

Nuchatlaht Traditional Territory Nuchatlitz Inner Basin Nootka Island Troy Moth
The Nuchatlitz Inner Basin on Nootka Island in the Nuchatlaht First Nation’s traditional territory. The nation is currently engaged in legal proceedings to claim title to their land. Photo: Troy Moth

On the same day the B.C. government passed legislation embracing the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in late November, lawyer Jack Woodward was in court representing the Nuchatlaht First Nation in a historic land title case.

“I was on my feet the day it came into force, so I could present it to the court,” Woodward told The Narwhal.

“It had its first test before the ink was dry.”

But Woodward — renowned for his role in drafting Section 35 of the Canadian Constitution, which enshrined Indigenous rights in the 1980s — said the newly minted law has meant very little to the Nuchatlaht case and arguments being used by B.C.’s lawyers in courts.

The province claims the Nuchatlaht do not have legal claim to their lands because the nation abandoned its territory, Woodward said.

“The province is completely wrong on the facts … They did not abandon Nootka. The lands were stolen and they were forcibly ejected,” Woodward said.

“I said to the judge that not only are these pleadings disgraceful, objectionable and distasteful, they are now illegal.”

Jack Woodward, lawyer for the Nuchatlaht

Jack Woodward, lawyer for the Nuchatlaht. Photo: Daniel Pierce

New rules reinforce inherent Indigenous right to land

B.C.’s new law acknowledges that UNDRIP’s principles are specifically written with concern that “Indigenous peoples have suffered from historic injustices as a result of … their colonization and dispossession of their lands, territories and resources.”

The declaration also recognizes the “urgent need to respect and promote the inherent rights of Indigenous peoples … especially their rights to their lands, territories and resources.”

Article eight of UNDRIP says governments must use “effective mechanisms” to prevent the dispossession of Indigenous lands and resources.

The Nuchatlaht’s traditional territory lies on the west coast of Vancouver Island, encompassing  a large part of Nootka Island, Nuchatlitz Inlet and part of Esperanza Inlet. While the nation argues it maintained strong ownership over its traditional territory once European settlers arrived, in more recent history the land was parceled out under B.C. laws, giving industry — and in particular, logging companies — access to the land. MORE