Supporters of the Wet’suwet’en hold a Mohawk Woman Warrior flag after re-establishing a camp blocking access to the Coastal GasLink pipeline project Sunday. Photo by Dan Mesec. (The Tyee)
Supporters of the Wet’suwet’en Hereditary Chiefs announced on December 19 that they have reoccupied a worksite on the Coastal GasLink pipeline route in the nation’s territory, in northern British Columbia. The pipeline is intended to supply fracked natural gas to an LNG plant on Canada’s west coast.
The reoccupation is reported in this article by Amanda Follett Hosgood of The Tyee. For a detailed discussion of the matters in dispute, see this Media Backgrounder issued by supporters of the Chiefs.
Notably, the Chiefs and their supporters base their opposition to the pipeline and the court injunctions on “Wet’suwet’en law,” which they describe in a news release:
“Anuc ‘nu’at’en (Wet’suwet’en law) is not a “belief” or a “point of view”. It is a way of sustainably managing our territories and relations with one another and the world around us, and it has worked for millennia to keep our territories intact. Our law is central to our identity. The ongoing criminalization of our laws by Canada’s courts and industrial police is an attempt at genocide, an attempt to extinguish Wet’suwet’en identity itself.
“We reaffirm that Anuc ‘nu’at’en remains the highest law on Wet’suwet’en land and must be respected. We have always held the responsibility and authority to protect our unceded territories. Protection of our yintah (traditional territories) is at the heart of Anuc ‘nu’at’en, and we will practice our laws for the future generations.”
The Wet’suwet’en people are on the front lines of the battle to assert and defend Indigenous sovereignty, and with it our natural environment, in the face of brutal ongoing attacks by governments and courts determined to pursue their disastrous exploitation of oil and gas resources. The Indigenous law that they cite was developed by Indigenous communities over centuries long before the occupation and colonization of their lands by European settlers. It can prove to be an important tool in supplementing and reinforcing Indigenous struggles against the corporate depredation of the environment.
A leading text by Indigenous scholar John Borrows, Canada’s Indigenous Constitution, argues that Indigenous law and legal traditions should be recognized as a third order of law in Canada alongside the Civil and Common law. His book was recently published in French translation in Quebec. I reviewed the book in the fall 2021 issue of Nouveaux Cahiers du Socialisme. Here is an English translation of the review.
– Richard Fidler
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John Borrows, La Constitution autochtone du Canada (Presses de l’Université du Québec, 2020)
Long before European colonization, the Indigenous peoples of North America had their own distinct systems of rules for governing their societies. And it was First Nations laws, protocols and procedures that set the framework for the first treaties among Aboriginal peoples, and between them and the Dutch, French, British and Canadian Crowns. However, during the 19th century Indigenous laws were progressively overridden by the Civil and Common law, and Canada is now constituted as a bijural system of law.
In La Constitution autochtone du Canada,[1] John Borrows argues that Indigenous legal traditions should be recognized as a third order of Canadian law. Borrows is a leading Indigenous legal scholar, an Anishinaabe/Ojibway and a member of the Chippewas of Nawah unceded First Nation at Cape Croker, Ontario. He is Canada Research Chair in Indigenous law at the University of Victoria, with an impressive record of award-winning publications that have influenced the major debates on Indigenous rights in Canada and abroad.
“Canada’s legal system is incomplete,” he says. “Canada needs to be constructed on a broader base, recognizing Indigenous legal traditions as giving rise to jurisdictional rights and obligations in our land.” Canada’s courts have long applied an opposing approach, based on a colonial “doctrine of discovery”; as the Supreme Court of Canada held in a leading case on Aboriginal rights,[2] “there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to [Indigenous lands] vested in the Crown.” However, Borrows notes:
“[I]t is factually apparent that at Canada’s formation there was no first discovery on the part of the Crown that would justify displacing Indigenous law. Indigenous peoples had already discovered most land within their territories and exercised jurisdiction over it prior to the arrival of Europeans. If any legal consequences flow from ‘discovery’ these should vest in favour of Indigenous peoples, not the Crown....”
What, then, are the sources and scope of Indigenous legal traditions? Borrows discusses these under five heads, each illustrated by historical and contemporary examples. He shows that Indigenous legal traditions cannot be reduced to customary law; they are also expressed through sacred law, natural law, deliberative law, and positivistic law. He introduces us concisely to many of these traditions: Mi’kmaq, Haudenosaunee, Anishinabe, Eeyou, etc. He illustrates how these Indigenous precepts have proved their adaptability in addressing contemporary issues of Indigenous rights and in resolving disputes within and between Indigenous communities and non-Indigenous entities.
“The First Nations, Métis and Inuit are increasingly taking their affairs in hand, governing their activities and resolving their differences through the identification and establishment of criteria, principles, processes, rules, benchmarks, authorities, beacons and precedents. In other words, they are using their own legal powers to respond to the pressing issues facing their communities. These efforts cut across several areas of law, including inter alia child and family services, environmental protection, resource use, taxation, land development planning, education, cultural property, elections, protection of language, administration of justice, and settlement of disputes.”
Based on his interpretation of Canada’s bijural tradition, Borrows then explores what a genuinely multijural system that accorded an appropriate place to the Indigenous juridical orders would entail. He looks at the role that governments and courts, but also the bar associations and teaching institutions could and should play in order to clear the necessary space for the implementation and conveyance of Indigenous legal traditions. Finally, Borrows points to some of the obstacles, still very present, to a genuine recognition of the rights of the Indigenous peoples.
Borrows’ book does not engage directly with the major debate in today’s Indigenous politics, the struggle for forms of self-government and sovereignty that can eliminate the subjugation of the Indigenous peoples to the federal racist and sexist Indian Act and strengthen their capacity to resist and contend with the pressures of rapacious predatory capitalism. However, his insights concerning the content, relevance and adaptability of Indigenous legal precepts can inform our understanding of how truly self-governing Indigenous nations might regulate and resolve inter-jurisdictional conflicts and establish enforceable social norms of conduct within their communities:
“One need only think about actions related to pipelines, forestry, mining, and hydroelectric development to realize the importance of Indigenous law in our broader constitutional norms and practices.”
Borrows appears to hold a relatively benign belief in the adaptability of Canada’s constitution to incorporate Indigenous law as a third order of law or, as the long-ignored Royal Commission on the Aboriginal Peoples recommended, a third order of government. The existing bijural system is under-inclusive, he argues. “Canada would be better described as multi-jural in its actual constitution.” He draws particular attention to the “reserved rights” notion of treaties, recognized in Canadian law,[3] which implies that anything not agreed to or expressed in the treaty remains vested in Indigenous populations. However, Canadian courts have conditioned its application on an overriding recognition of Crown sovereignty. The Supreme Court “is one of the places where the recognition of Indigenous law is occurring most slowly,” he concedes.
Borrows sees hope, however, in recent developments that illustrate the visibility of Indigenous laws. These include the reports of the Truth and Reconciliation Commission (on the Indian boarding schools), the National Inquiry into the missing and murdered Indigenous women and girls, and above all the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Bill C-15, adopted by the House of Commons on May 25, 2021, now before the Senate,[4] provides that the federal government must “take all measures necessary to ensure that the laws of Canada are consistent with” the UNDRIP, and must “implement an action plan to achieve” these objectives.
The UNDRIP provisions recognizing the Indigenous rights of self-determination and autonomous governance alone would suffice to promote the Indigenous constitution of the country, Borrows says. And art. 27 is explicit on the importance of using Indigenous law when decisions are made concerning their lands, territories and resources.
Is this conceivable, or likely, however, under the existing constitution, in which individual rights prevail over the unrecognized rights of the national collectivities, Québec and the Indigenous peoples? Permit one to doubt.
-- Richard Fidler
[1] French translation of Canada’s Indigenous Constitution (University of Toronto Press, 2010, 2012). The French text follows the English; only a few more recent court decisions and articles are cited in the footnotes.
[2] R. v. Sparrow [1990] 1 S.C.R. 1075, at 1103.
[3] Constitution Act, 1982 , s. 35(1): “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
[4] The Act received Royal Assent on June 21, 2021.
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