Gina Starblanket is an assistant professor in political science at the University of Calgary. Joyce Green is a professor of political science at the University of Regina.
February has seen an explosion of Indigenous and non-Indigenous support for the current political struggle by the Wet’suwet’en hereditary chiefs and their supporters. Again, we are seeing a ham-handed response of both orders of government, delivered in justificatory talking points to the media and enforced by the RCMP. Once again we have the police dragging Indigenous peoples off of their lands, in Canada, in the service of the settler state, which is as usual attending to virtually every relevant political interest – except Indigenous ones.
This is happening despite the rhetoric from federal and some provincial politicians about the need to transform their relationship with Indigenous people – even though that little matter of land theft continues. And Canada – in all its structural manifestations – continues its perpetual drive to eliminate Indigenous rights to land and self-determination, treating them as impediments to the national interest.
Meanwhile, federal and provincial politicians prattle about the “rule of law,” oblivious to its constitution as the rules of the rulers, imposed on Indigenous peoples without their consent. They are also oblivious to Indigenous law, which exists in every Indigenous nation and continues to function. Others invoke the economic impact of the protests as reasons to end them. But Canadian governments really don’t seem to get it: there are matters more important at stake here than a piece of the capitalist economy.
The Wet’suwet’en hereditary chiefs have the responsibility for taking care of and making decisions on the use of their traditional territories, which are unceded. That fact has legal ramifications, as recognized by the Supreme Court of Canada in Delgamuukw v. British Columbia (1997) and Tsilhqot’in Nation v. British Columbia (2014).
Much has been made by both orders of government and by Coastal GasLink of the approval they have secured from band councils. Band councils are creatures of the Indian Act, constructed to manage reserves as per the Act. Incumbents do the best they can with a lousy structure and insufficient funds, but they do not have the scope of authority of traditional political leaders. Thus, in this matter, the hereditary chiefs are the legitimate authority over their traditional territories (which are far larger than the reserves), and their decisions are made on the basis of their laws.
There is a body of political theory and jurisprudence that indicates that those traditional laws continue despite the imposition of the Canadian state and its legal regime. For many years, Canada asserted its law over and above Indigenous legal systems, but the importance of engaging Indigenous laws has been emphasized by the Supreme Court of Canada over the last three decades, in cases including Delgamuukw, Van der Peet (1996) and Mitchell (2011). Canada and B.C. are legally bound to take account of those laws and protocols in interpreting their own responsibilities under section 35 of the Constitution Act 1982.
The Wet’suwet’en hereditary chiefs are in fact making a crucial intervention in the Indigenous-Canadian political landscape. Canada can no longer claim to have discharged its responsibilities, including the duty to consult, by cherry-picking only Indigenous leaders that sing to its tune.
The situation of the Wet’suwet’en is similar to that of many other Indigenous nations in this regard: there are vibrant traditional legal and political protocols in place that lay out each nation’s responsibilities to the land and all in it. Yet, the case of the Wet’suwet’en suggests that Canada and B.C. will completely ignore Indigenous laws and protocols that continue despite colonialism. And the violence that the colonial state is evidently willing to deploy in furthering its economic and political objectives threatens all Indigenous peoples when there is a conflict over the use of the land.
Finally, Canada has responsibilities to Indigenous people under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which defines Indigenous rights at international law. International law (particularly human rights law) applies to Canada, and the state generally observes it; indeed, British Columbia has passed enabling legislation for the UNDRIP. The right of free, prior and informed consent (FPIC) prior to any external use of traditional territory is guaranteed in this declaration, and is far more robust than the legally anemic “duty to consult” set by the Supreme Court.
Both orders of government need to respect the FPIC rights of the Wet’suwet’en and of all Indigenous peoples. The failure to respect the decision of the Wet’suwet’en hereditary chiefs represents a broader statement from Canada: that it is not willing to bear the political costs of reconciliation, but it is willing to incur more decades of political estrangement between Canadian governments and Indigenous nations.
For reconciliation to be anything more than an empty signifier, Canada and all provincial governments would have to cease justifying land appropriation when consent has been denied by those with that authority in particular nations.
Instead, the Wet’suwet’en situation is a reminder that reconciliation cannot be obtained in a state that supports police enforcement of corporate and political interests against the rights of Indigenous people. In actions reminiscent of Idle No More, many Canadians and Indigenous people have already made their choice to stand with the Wet’suwet’en hereditary chiefs. As they do, they are making the firm declaration that, as a political ideal, reconciliation is dead.
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