[rad-green] The Wet’suwet’en, Governm ents and Indigenous Peoples: A 5 Step Plan for Reconciliation

*https://www.firstpeopleslaw.com/index/articles/439.php
<https://www.firstpeopleslaw.com/index/articles/439.php>*

*First People's Law              February 20, 2020*

The Wet’suwet’en, Governments and Indigenous Peoples: A 5 Step Plan for
Reconciliation
By Bruce McIvor

Canada has reached a watershed moment.

Will it continue to bulldoze Indigenous rights in the name of resource
exploitation and jobs and profits for the few, or it will renounce its
colonialist past and strike out on the path of respect, collaboration and
partnership with Indigenous people?

Using the current national response to the Wet’suwet’en controversy as a
springboard for discussion, here’s my 5-step plan for preparing the ground
for real reconciliation.

This is the third in our series of articles on the RCMP’s enforcement
against the Wet’suwet’en. Click here
<https://www.firstpeopleslaw.com/index/articles/435.php> for article #1 and
here <https://www.firstpeopleslaw.com/index/articles/438.php> for article
#2.

#1 Renounce Violence Against Indigenous People

Canada must stop using the threat and reality of state-sanctioned violence
to forcibly remove Indigenous people from their land. Reconciliation cannot
be achieved through force.

The threat of violence as a tool of oppression of Indigenous people raises
the spectre of Canada’s long, violent history of colonialism. A
post-colonial world does not include violence.

True reconciliation cannot begin until state-sanctioned violence is no
longer an option.

#2 Implement UNDRIP

We would not be in the situation we are in today if the British Columbia
government was serious about implementing the *United Nations Declaration
on the Rights of Indigenous Peoples.*
<https://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf>

Less than three months ago, the *Declaration on the Rights of Indigenous
Peoples Act* <http://www.bclaws.ca/civix/document/id/complete/statreg/19044>
became
law in British Columbia to great fanfare. Instead of marking a new day for
reconciliation and respect, it has fostered resentment and cynicism.

Why? Because in response to the Wet’suwet’en standoff, the provincial
government failed to respect its own law. It took the position that its
UNDRIP legislation does not apply to projects that had already received
provincial approval. Its position is indefensible.

British Columbia’s UNDRIP legislation is not simply forward-looking. It
imposes a positive obligation on the provincial government to ensure that
UNDRIP principles are implemented in the ongoing application of existing
provincial law. In this context, ‘law’ includes legislation, regulations
and policies.

The federal government is currently planning to introduce its own UNDRIP
legislation. It must not repeat British Columbia’s mistake.

#3 Fulfill the Federal Government’s Role

Until the last few days, the federal government has been sadly absent as
the RCMP invaded Wet’suwet’en land and demonstrations of support erupted
across the country.

The federal government has an important constitutional role to play when
Indigenous Peoples find their rights threatened by provincial governments
and resource extraction companies.

When Canada came into being in 1867, the federal government was assigned
exclusive legislative authority over “Indians and Lands reserved for
Indians”. This was done for two main reasons: ensure a national policy on
Indigenous issues and protect Indigenous Peoples from what at the time were
referred to as ‘local settler majorities’—we now call them provincial
governments.

In recent years the Supreme Court has expanded the role of provincial
governments in resolving disagreements over Aboriginal and Treaty rights.
This change does not absolve the federal government of its continuing
responsibilities.

Because it does not face the same local pressure to remove Indigenous
people from their land as provincial governments do, the federal government
has an important role to play in resolving disputes.

The federal government must have the courage to fulfill its historical and
legal responsibilities to Indigenous Peoples.

#4 Sign Recognition Agreements

Recognition is the prerequisite for reconciliation.

Today’s controversy is the result of and a continuation of British
Columbia’s 150-year history of denying Indigenous rights, including
Aboriginal title.

While the current provincial government publicly talks of recognition and
reconciliation, in the courts and all too often on the ground, it
perpetuates British Columbia’s long history of denial.

Because provincial and federal governments continue to deny the existence
of Aboriginal title, the courts hold them to no more than the procedural
requirements to consult and, in some cases, accommodate. As the recent
Trans Mountain Pipeline decision
<https://www.canlii.org/en/ca/fca/doc/2020/2020fca34/2020fca34.pdf> from
the Federal Court of Appeal demonstrated, the duty to consult has become an
ineffectual tool for Indigenous Peoples seeking to protect their Aboriginal
title lands.

Instead of creating the basis for meaningful dialogue, the duty to consult
has too often become the gateway to the RCMP’s militarized enforcement of
injunctions against Indigenous people. Over 15 years ago, the Supreme Court
recognized that injunctions are all-or-nothing solutions with Indigenous
people too often finding themselves on the losing end.

It is open to the federal and provincial governments to jettison denial
policies and recognize Aboriginal title through agreement. As the Supreme
Court has repeatedly reminded all parties, the courts are not required to
be involved.

While Indigenous rights exist without government recognition, a formal
recognition agreement would put an end to the destructive status quo of
denial.

If there are issues about so-called ‘overlaps’ with neighbouring Indigenous
Peoples, initial agreements can either be limited to core Aboriginal title
lands or acknowledge the necessity of resolving competing claims for title.
After a recognition agreement is signed the hard work of creating the space
for respecting Aboriginal title through subsequent implementation
agreements can begin.

Fortunately, we have clear evidence that the sky does not fall and the
economy does not grind to a halt when Aboriginal title is recognized. In
2014 the Tsilhqot’in obtained a declaration of Aboriginal title to a
portion of their territory. What have they been doing since? They’ve been
in serious, respectful negotiations with the provincial and federal
governments based on the recognized existence of their Aboriginal title.

A final, but crucial aspect of any potential recognition agreement would be
that it would confirm respect for Indigenous law.

One of the most concerning developments in the dispute between the
Wet’suwet’en and the pipeline company is that in its most recent injunction
decision
<https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc2264/2019bcsc2264.pdf> the
B.C. Supreme Court held that while Indigenous law exists, it cannot be put
into effect as part of Canadian law without a treaty, legislation or
agreement.

While there are serious questions to be asked about the soundness of the
Court’s conclusion, its immediate effect has been to undermine many
Indigenous Peoples’ confidence in the Canadian legal system. A recognition
agreement that recognized both Aboriginal title and Indigenous law would go
a long way to renewing Indigenous Peoples’ confidence in Canadian courts.

#5 Embrace Consent-Based Decision Making

Certainty, respect and collaboration depend on consent-based decision
making. As long as governments continue to raise the fear of an Indigenous
veto, they will fail Indigenous people and the wider public.

As many commentators have noted, veto and consent are not the same
thing--the former is exercised arbitrarily, the latter is actively sought
and occasionally withheld.

When government and industry talk of 'no veto', the implication is,
'therefore we're going to do what we want to do whether you support it or
not.' This is the antithesis of good faith consultation. It results in
projects being forced through over valid Indigenous concerns and possible
alternatives.

Case in point, several years ago the Wet'suwet'en Hereditary Chiefs
proposed an alternative route for the Coastal GasLink project, a route that
would traverse a portion of their territory already developed for industry
and that would avoid a pristine, undeveloped part of their territory. The
company rejected the Chiefs' proposed alternative route based on technical
issues and additional cost.

Across Canada, alternative solutions proposed by Indigenous people can be
rejected with confidence because federal and provincial governments
emphasize the lack of an Indigenous veto instead of seeking consent.

As long as governments rely on the language of veto, there is little
incentive to work with Indigenous Peoples to find respectful, workable
solutions.

Consent-based decision making is about actively engaging with Indigenous
people with the intention of identifying solutions that will result in
Indigenous consent. It includes accepting that in certain situations the
answer is going to be no. Non-Indigenous governments always retain the
right to reject a project. Indigenous Peoples deserve the same respect.

In Canada the consent principle dates at least as far back as the Royal
Proclamation of 1763. The Supreme Court has identified it as the preferable
path of engagement and as a necessity in certain circumstances.

The question arises—who is authorized to give consent? Indigenous Peoples
across the country are working to revitalize their Indigenous laws and
governance, either separate from or working with the existing *Indian
Act* Chief
and Council system. The federal and provincial governments need to support
and respect this work.

Consent-based decision making is practical and workable. It respects
Indigenous Peoples’ right to make decisions about how their land will or
will not be used. A commitment to consent-based decision making will create
certainty for all Canadians.

*Which Way Canada?*

The voices of the status quo are loud and relentless. Hiding behind the
self-serving rhetoric of the ‘rule of law’ and the ‘public interest’ they
call for the removal of Indigenous Peoples from their lands.

Canadians have a choice to make. Will they double-down on denial and
oppression or will they embrace respect for constitutional rights and
Indigenous Peoples’ laws?

Our children will judge the choice we make today.

*First Peoples Law Corporation is legal counsel for Unist’ot’en. The
statements here are made on our own behalf and reflect our views on this
issue, not those of our client.*
------------------------------

*Bruce McIvor, lawyer and historian, is principal of First Peoples Law
Corporation. He is also an Adjunct Professor at the University of British
Columbia’s Allard School of Law where he teaches the constitutional law of
Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in
Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a
Fulbright Scholar. A member of the bar in British Columbia and Ontario,
Bruce is recognized nationally and internationally as a leading
practitioner of Aboriginal law in Canada.*

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