Whose rule of law? Indigenous law also part of Canadian legal system, say lawyers
How should Canadians understand indigenous pipeline protests and rail blockades in the supposed era of reconciliation and the existential threat to the Western Canada-based hydrocarbon sector caused by deep structural change in global energy markets?
For me, this is a profoundly personal issue. First Nations people, farming, and the oil patch are themes intertwined throughout my life.
Like many Saskatchewan farm boys after the war, my father, Jack, earned a trade (automotive mechanic) – which he practiced in John Diefenbaker’s hometown of Prince Albert – while farming on the side with his father. Then, in 1964, Jack uprooted our family to northern Manitoba where he worked for the provincial hydro utility, first in Thompson and later in Gillam (yes, that Gillam, where the manhunt for two BC murderers captivated the nation last summer).
First Nations people were an important part of both communities and, given the times, racism by the non-indigenous community was bred in the bone. No one was immune. Certainly not me, to my everlasting shame. Eventually, though, I escaped to university, studied Canadian history, and changed. Change included insight and understanding of the injustices faced by my indigenous friends and schoolmates.
Fast forward fifteen years. The Federation of Saskatchewan Indian Nations hired Jo Ann and me to interview elders as part of an oral history project. I remember one in particular.
He told us about working in the north after WWII, trapping and logging during the winter, fishing, and hiring out to farmers for spring planting and fall harvesting. Sometime during the 1950s, he said, politicians 3,000 kilometres away decided aboriginal men should no longer take jobs from whites and he was confined to his reserve, not allowed to leave without the Indian agent’s permission, forced to accept welfare. Despair and alcoholism soon infected his community.
Many times since I’ve thought about that man’s story, what it said about my country and my family, who lived in that area at the time. What it said about me.
I heard echoes of his tragedy in former Conservative Party of Canada Leader Andrew Scheer’s recent comment that indigenous protestors blocking construction of the Coastal GasLink pipeline and shutting down rail shipments should “check their privilege.” Is anyone surprised that Scheer hails from Saskatchewan?
My point here is that this moment has been coming for a long, long time. Canada cannot escape its history.
Can we use this crisis as an opportunity to significantly advance reconciliation? We can start by acknowledging that indigenous law is part of our collective history and our current legal system.
Lawyers Kate Gunn and Bruce McIvor of the First Peoples Law firm have penned a must-read primer entitled, The Wet’suwet’en, Aboriginal Title, and the Rule of Law: An Explainer. “Canadian courts continue to recognize that Indigenous laws form part of Canada’s legal system, including as a basis for Aboriginal title,” Gunn and McIvor argue. “The ‘rule of law’ therefore includes both Canadian and Indigenous law.”
As Gunn explained in an interview with Energi Media, Canadians might be surprised to learn how many legal systems are recognized by Canadian courts. “Indigenous law continues to be alive and is, in many cases, really having a resurgence despite the fact that it’s been suppressed or disregarded by the Canadian system for many, many years,” she said.
Indigenous law is particularly relevant because BC First Nations did not enter into treaties with the Crown. British Columbia is mostly unceded territory. And BC First Nations have for decades been actively asserting their legal rights through Canadian courts.
An important argument for Canadians to grasp: just because first Britain and then Canada assumed the primacy of their constitutions and rule of law, doesn’t make it so.
In the case of the Wet’suwet’en, the elected chief and council exercises its authority under the Indian Act, but the hereditary chiefs exercise their authority under a legal system that evolved long before Europeans colonized North America. Both legal systems are recognized by Canadian courts. How do we sort out which leaders are legitimate when the two systems collide, especially when Wet’suwet’en members can be found in both pro and anti-pipeline camps?
When Alberta Premier Jason Kenney demands that the Canadian government enforce the rule of law, which law is applicable?
As Gunn and McIvor demonstrate, the answers are not near clear cut. Consequently, resolving these knotty legal questions will take yet more time. “You need to know we have failed our Indigenous peoples over generations, over centuries. And there is no quick fix to it,” Trudeau told reporters Friday.
Unfortunately, Canada does not have the luxury of time because the country is embroiled in an economic crisis. A great deal is on the line for farmers, industry, workers, the oil and gas sector, and those communities looking forward to jobs created by pipelines and LNG.
The dispute must be resolved, but there is no clear path forward. Recent national polls show that Canadians are split over the Teck Frontier oil sands mine, the Canada LNG and Coastal GasLink natural gas pipeline, and support for the Wet’suwet’en and their supporters across Canada, including shutting down rail lines.
The division suggests many favour what we think of as a typical Canadian solution: pragmatic, sensible, a compromise that avoids conflict, not a zero-sum game with absolute winners and losers where either side gets everything they’re asking for. Complex, “wicked” problems take time to solve, so let’s give leaders – indigenous and non-indigenous – the time they need to get this right.
Prime Minister Justin Trudeau has dispatched ministers to meet with various indigenous communities, including the Wet’suwet’en. “We are working on it with a whole-of-government approach that is totally focused on resolving this situation the right way,” he said.
Whatever the right way is, it must result in the right outcome: atoning for my country’s historic sins, but not severely damaging the Canadian economy as a consequence. There was always going to be a reckoning for Canadians, just make it one we can afford.