Courts have been very clear. Governments have a duty to consult Indigenous people before green-lighting major construction projects. But duty to consult should not be confused with veto power.
By Sheila Copps
First published in The Hill Times on February 17, 2020.
OTTAWA—Indigenous sovereigntists are the flavour of this month in Canada.
Unlike Quebec separatists, they are being afforded unprecedented positive media across the country.
Shutting down key modes of transportation, like passenger and freight trains, and blocking roads across the country are the goals of supporters of the hereditary chiefs of Wet’suwet’en opposed to a pipeline project.
The only problem is, elected representatives of the people of Wet’suwet’en have already spoken out in favour of the pipeline agreement that the hereditary chiefs insist on illegally opposing.
Who is the real voice of Indigenous people in this instance?
Governments of all stripes are treading carefully, not wanting to provoke another Oka, Ipperwash, or Caledonia. The federal government is punting the problem over to the provinces, suggesting they are in a legal and constitutional position to police the protests.
The provinces are continuing to offer to negotiate, knowing full well that the standoff of the hereditary chiefs appears, for all intents and purposes, to be non-negotiable.
In reality, the current illegal occupation of railway lines and parliamentary buildings has zero to do with past local territorial disputes.
In the case of Oka, an Indigenous burial ground was being razed to build a golf course. In the case of Caledonia and Ipperwash, both disputes over expropriated land were ultimately referred to the courts.
In the current case, the issues have already been heavily litigated in the courts. After reviewing all the evidence, courts have ruled that the duty to consult First Nations along the route of the proposed Coastal Gaslink pipeline has been properly carried out.
The courts also reported that the majority of Indigenous leaders support the pipeline, as confirmed by the 20 bands that have signed agreements to work with pipeline proponents.
A minority, including hereditary leaders, and eco activists, have determined that they are above Canadian law and will never cede to a colonial governance decision.
When the British Columbia Legislature was shut down last week, that just about said it all. There is no place for democracy when bullying and blockades attract public attention.
Bonnie Georgie of the Witset First Nation, a former Coastal GasLink employee, supports the 670-kilometre pipeline plan. She says many in her community are afraid to speak out for fear of being “bullied, harassed, threatened and called a traitor.”
According to George, hereditary leaders sit on the band council, and usually play a role in encouraging a consensus on any given issue. She is still hopeful that one can be reached but fears the potential loss of economic opportunities if the illegal blockades continue.
The puzzling thing about the blockaders’ argument is that they claim their actions constitute a refusal to be governed by laws set up by colonial overlords.
They disavow any police authority and want the Royal Canadian Mounted Police to vacate their lands.
They refuse to support the right of elected band leaders to make a decision.
Can you imagine Canada’s reaction if Quebec were to refuse to accept all laws passed after the battle of the Plains of Abraham?
Anarchy is the only description that can apply to hereditary systems that override the will of the majority of people in their own community in an effort to defend alleged rights that pre-existed the arrival of colonial occupiers.
And if the country is going to engage in a true spirit of reconciliation, it has to be built on the foundation of some basic principles, democracy being one of them.
In this instance, the elected band leaders have all consulted their communities and came to a conclusion.
They support the pipeline and want to enjoy the economic benefits it will bring to their young people.
Reasonable Canadians are struggling to understand the dynamic in this fight. It is unfair that a small minority of Indigenous leaders are able to hold hostage the balance of their communities.
They cling to a claim that their blockades reinforce a demand to return management of their homelands back to chiefs whose leadership bloodline was established long before the first European colonizers ruined the New World.
We cannot walk back 500 years.
Institutions and legal structures have evolved in the past centuries. Injustices have been rectified and democratic institutions have been strengthened.
Democracy weakens their claim to hereditary power. That reality needs to supersede the current national impasse on pipeline construction. Courts have been very clear. Governments have a duty to consult Indigenous people before green-lighting major construction projects.
But duty to consult should not be confused with veto power.
Sheila Copps is a former Jean Chrétien-era cabinet minister and a former deputy prime minister. Follow her on Twitter at @Sheila_Copps.
