For justice to be done, it must be seen
Sign up to the newsletter

Protests show Canadian, indigenous laws need reconciling

2 min 38Approximate reading time

A clash of Canadian colonial-era and traditional indigenous laws is behind a flare-up of protests this month in support of chiefs fighting construction of a pipeline on their ancestral lands, experts say.

The conflict started as a localized protest by Wet'suwet'en hereditary chiefs blocking workers building the Coastal GasLink natural gas pipeline in northern British Columbia, on Canada's Pacific coast.

But it quickly escalated into widespread blockades of railways, roads and ports causing major supply shortages and job layoffs across the vast country -- baffling many Canadians while confronting Prime Minister Justin Trudeau with a political challenge.

"All of these confrontations have been about land," said Kenneth Deer, a Kahnewake Mohawk in Quebec, explaining his community's support of the Wet'suwet'en more than 2,000 miles (3,200 kilometers) away.

About 20 elected band councils along the 416-mile pipeline route from Dawson Creek to Kitimat, British Columbia had backed the Can$6.6 billion (US$5 billion) project. It is under construction and would transport the gas to a Pacific coast terminal for shipping to overseas markets.

So if the band councils along the route agreed to it, how could a small group of hereditary chiefs cause so much disruption?

Constitutional and indigenous law experts consulted by AFP point to unresolved land claims west of the Rocky Mountains where most tribes, including the Wet'suwet'en, have not signed treaties with the Crown.

The 1876 Indian Act, passed just a few years after Canada's Confederation, created hundreds of indigenous reserves and replaced tribes' traditional governance structures with small elected councils holding limited powers.

In contrast to this Canadian legal framework, Wet'suwet'en hereditary chiefs derive their authority from laws that predate colonization and have sought to apply it to the entirety of their ancestral territories.

Courts have upheld Native title but judgments "never defined exactly the nature of these rights," said Martin Papillon, a politics professor at the University of Montreal.

As a result, "these two forms of law have come into tension with one another in a very abrupt way in the last few weeks," said constitutional lawyer Kim Stanton.

"The hereditary chiefs are attempting to have Canadian law recognize Wet'suwet'en law and the Canadian state is saying, 'Well, we need to enforce the rule of law,' but is ignoring indigenous law," she explained.

"And that is why we are seeing this eruption of protests."

- Policeman killed -

The recent unrest, both experts said, can also be traced back to 1990 when an indigenous protest against a golf course expansion on sacred Native lands in Oka, Quebec led to the shooting death of a policeman, and deployment of troops.

A Royal Commission later that decade concluded that "Canada needed a complete restructuring of its relationships with indigenous nations," Stanton said.

Fast-forward to 2015: Trudeau came to power promising reconciliation with indigenous peoples who suffered a loss of language and culture which is blamed for gross poverty in Native communities.

The same year, a truth and reconciliation commission concluded that more than a century of abuses at boarding schools set up to assimilate indigenous peoples amounted to "cultural genocide."

"Many, many non-indigenous people have great difficulty accepting that we are a country that has committed these terrible acts," Stanton said.

"So we have a big disconnect in this country."

Papillon said that the prime minister "set the bar very high in terms of reconciliation."

Trudeau assigned two ministers to deal with indigenous matters, and vowed to incorporate the United Nations Declaration on the Rights of Indigenous People into Canadian law by year's end.

The opposition Conservatives and other critics have warned that this risks giving an unacceptable veto to indigenous peoples on resources development.

But Stanton and Papillon challenged that view, saying it would instead create a better framework for Crown-indigenous relations and help to clarify indigenous rights.

"If we want resources development to continue in a sustainable manner, these partnerships must mature. We have no choice," said Papillon.

"It has the added advantage of clarifying who can say yes or no to this kind of pipeline project," he said. "At the moment there's a gray zone, which helps nobody."

"It's a win-win," echoed Stanton. "Otherwise, if you roll over people's rights, you will have the situation that we find ourselves in now."

Sign up to the newsletter