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COLUMN: Issue of blockades and 'rule of law' is a lot more complicated than it seems

Milne Jared-P
Jared Milne

Almost all of the blockades in support of the Wet’suwet’en hereditary chiefs in British Columbia have come down. Many non-Indigenous Canadians angrily criticized the blockades, saying that the Wet’suwet’en band council chiefs agreed to the Coastal Gas Link pipeline and that governments and police should have enforced the "rule of law" by dismantling the blockades more forcefully.

There are three problems with that approach. I already touched on one of them in a previous Gazette letter, namely the danger of police forces going in too hard. The second problem is the conflict between the traditional form of Wet’suwet’en governance and the band councils. The third is how the "rule of law" isn’t quite what it seems.

It’s important to remember that the band council system was developed by the federal government and imposed through the Indian Act. The First Nations people it governs didn’t get any say in how it was designed, much less whether they actually wanted to use it. As Kwakwaka'wakw entrepreneur Bob Joseph writes, “If you are chief or council, you are elected by your people, but you are accountable to Indigenous and Northern Affairs Canada.” The band council was implemented as part of a government strategy to break down traditional Indigenous governing structures. Even today, band councils are almost pseudo-democratic in that federal bureaucrats can overrule the decisions of elected officials. Their powers and independence are severely limited compared to non-Indigenous municipalities, and are frequently put under unaccountable third-party management. With such limited powers and all the bureaucracy, is it any wonder some Indigenous people don’t see band councils as representing them?

As for the "rule of law," many people forget the 1997 Delgamuukw Supreme Court case filed by the Gitxsan and the Wet’suwet’en hereditary chiefs. The Court found that collective Indigenous land rights exist in Canada, notably in areas where there are no Treaties like most of B.C. They go beyond traditional hunting or fishing, and include Indigenous involvement in decisions made about how the land is used. Those rights can’t be extinguished without Indigenous consent, and require the federal government to act honourably in dealing with the rights-holders.

From the hereditary chiefs’ point of view, they’re asserting their rights in how their land is being used. The federal and B.C. governments are the ones violating the rule of law by forcing the pipeline through without their "free, prior and informed consent" required by the UN Declaration on the Rights of Indigenous Peoples that the B.C. government is currently trying to pass into law.

Non-Indigenous people have every right to be upset about the potential harm the Indigenous blockades caused. But would we have felt the same way about non-Indigenous blockades, like the ones caused by farmers in 1996, 2006 or 2014? The farmers said they were defending their rights to their land and how to use it, but weren’t they arguably violating the rule of law? Shouldn’t the police have taken more action then?

Like everything else in this debate, it’s a lot more complicated than it seems.

Jared Milne is a St. Albert resident with a passion for Canadian history and politics.