Shiri Pasternak is a professor of criminology at Ryerson University and the research director of the Yellowhead Institute.
Over the coming weeks, two stories will be told repeatedly about the police raids and arrests on Wet’suwet’en territory. One story will already be familiar to those reading coverage of the escalating conflict between Coastal Gaslink, the province of British Columbia and the Wet’suwet’en hereditary government. It goes like this: First Nation band councils have consented to this development and welcome the jobs and revenue; Indigenous groups working under hereditary authority who oppose the pipeline, therefore, represent a rogue and non-democratic faction.
The second related story is that police force is necessary and justified against this rogue faction in order to maintain law and order. This story will be that First Nation band councils can negotiate with industry and governments on behalf of their communities. If contracts are broken, it will subject the country to economic and political disorder because it will undermine provincial authority, causing corporate confidence in resource investment to plummet.
Both of these narratives lack important context. The hereditary governments are not rogue and non-democratic factions. This is a willful misreading of Canadian law. The most important case on Aboriginal title in Canada was fought in 1997 and won by the Wet’suwet’en (and Gitxsan) in the Delgamuukw decision. The court recognized that underlying title continues to rest with the Indigenous nation where treaties have not been signed. This interest in the land was found to be collective, unique and proprietary in nature. Note that it was the hereditary chiefs who brought the case to the Supreme Court and the hereditary chiefs whose authority to govern was recognized in the decision.
But whereas the first story is about a willful misreading of Canadian law, the second is a faithful reading of bad Canadian law. Police force against the Wet’suwet’en will be justified because the injunction sought and obtained by Coastal Gaslink was accompanied by an enforcement order. But how can the injunction override a Supreme Court decision that recognized hereditary leaders as the proper title and rights holders?
Last October, the Yellowhead Institute, the first Indigenous-focused think tank in Canada, released the results of a national analysis of injunctions. We found that while 76 per cent of injunctions filed against First Nations by corporations were granted, 81 per cent of injunctions filed against corporations by First Nations were denied.
The chance for a fair trial was, statistically speaking, negligible. As is common, Justice Marguerite Church of the B.C. Court of Appeal found that the economic loss to a company far outweighed the losses the First Nation would suffer as a result of restricted access to their lands and the destruction of habitat and waters.
When the court refused to recognize Wet’suwet’en hereditary authority, they become de facto lawless and so are labelled and treated as criminals. So a spectre of danger around these supposed criminals is created by the RCMP and other actors.
This is not paranoid thinking but an established part of the historical record of land conflict in this country.
In 1995, the Secwepemc land defenders at Ts’peten (Gustafsen Lake) were subjected to an intense smear campaign for holding ceremonies on their traditional lands against the wishes of local white farmers. They were called terrorists in the media and by police, even as thousands of rounds of ammunition were fired into the Sundance camp.
That same year, Dudley George was killed by Ontario Provincial Police at Ipperwash Provincial Park. Acting Sergeant Kenneth Deane claimed Mr. George was holding a rifle when the OPP invaded the camp, but the judge at trial found him to be lying. Later, Canada acknowledged that the Kettle and Stony Point First Nations had legal claim to the lands they were occupying.
In both these cases, it is police violence that is the most threatening to people, land and waters – not the families on the front line protecting their territory. According to The Guardian, the RCMP were prepared to use lethal force on Wet’suwet’en people last year, when the injunction by Coastal Gaslink was first served. Yet it is the hereditary chiefs, houses and clans who are being framed as dangerous. After the Wet’suwet’en felled trees along the roads to protect their communities from harm, the RCMP announced a criminal investigation into “traps likely to cause bodily harm.”
These are not dangerous criminals; they are defenders, lawfully protecting the land and waters, because our governments have resolutely refused to do so.
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