The movement to end Canada

[OttoVonBismarck]

Saw this op-end in the WaPo today, being (deliberately) as ignorant as possible of Canada I can't speak to the accuracy of some of the assertions, but if correct it's kind of crazy Canada would decide to go down this path.

https://www.washingtonpost.com/opinions/2020/02/22/movement-end-canada/

The movement to end Canada

By
J.J. McCullough
Global Opinions contributing columnist

Since much of the moral indignation fueling the Canadian indigenous rights movement is rooted in opposition to an enormous historical fact — the conquest of North America by non-indigenous peoples — it's easy for them to reach an equally enormous conclusion: The land should be given back.

Taken literally, the idea is obviously impossible. Canada's 35 million non-indigenous citizens (the "settler" community, in indigenous rights parlance) cannot be patriated back to their historic homelands. But what if the Canadian "settler state" were dismantled instead? What if, over time, the nation state of "Canada" ceased to be, and all of its present power were restored to an indigenous political authority?

There's much to suggest this project of post-colonial dissolution is the path Canada's currently on.

Beginning in 2010, organized opposition has incrementally arisen in response to a long-proposed plan to build a 416-mile fracked gas pipeline in British Columbia through what is asserted to be the "traditional territory" of the Wet'suwet'en nation. Though the pipeline has been approved by numerous democratically elected Wet'suwet'en councils, critics say such councils are illegitimate, since they're creations of settler laws regulating indigenous governance. True authority rests with the Wet'suwet'en's hereditary chiefs, who represent pre-colonial authority. It's not clear if the Wet'suwet'en chiefs care that much about the pipeline per se — they proposed their own route for it at one point. What matters is that their power be recognized.

The Wet'suwet'en chiefs contest the authority of Canadian law. Their supporters have behaved in kind, illegally blockading train tracks and bridges across the country, causing widespread economic disruption.

In response, those opposing the protests have demanded Canadian authorities "uphold the rule of law." But whose law? As protester Sarah Rotz, who is also a professor at York University, told the Canadian Broadcasting Corp., "When we use terms like the rule of law, we're ignoring Indigenous legal systems and we're assuming that the colonial legal system is the only legal system."

Few Canadian politicians have contested this framing. On Friday, a clearly exhausted Prime Minister Justin Trudeau announced that it was time for the protests to stop — indicating that his prior apprehension about using force had ended. Yet he was nevertheless careful to qualify his words with constant assurances that a negotiated solution was still possible, and that his administration was still committed to following the "path of reconciliation" — the term politicians use to signal their willingness to engage with aboriginal authority on equal footing.

Trudeau's timidness personifies a Canadian political class increasingly unsure whether their own power is legitimate. Indian treaties were formally granted the supremacy of constitutional law in the 1980s, and since the 1990s, the Canadian judiciary has been chipping away at the idea that the Canadian state should always prevail when it collides with indigenous assertions of authority.

New legal theories positing that aboriginal bands like the Wet'suwet'en still hold "title" to their lands, and that the settler governments have a "duty to consult" with what activists call Canada's "rightful owners," imply the existence of a vague and open-ended indigenous legal authority that is at the very least coequal to that of Canada. Ponderous "explainers" created by Wet'suwet'en and others have circulated during the recent protests, informing readers of the legal precedents buttressing the protesters' arguments. The intimidating prose reflects the degree to which Canada's indigenous rights movement has become deeply lawyer-centric.

Last November, the British Columbia parliament accelerated things when it unanimously passed the UN Declaration on the Rights of Indigenous Peoples, which affirms that indigenous people possess a right to exercise political authority independently from the states they inhabit. Trudeau's government plans to entrench the declaration in federal law, too.

Revolutions rarely begin from a cold start; instead, they usually arise after piecemeal reforms fail to appease a group of critics, while still justifying their criticism. As the Vancouver Sun reported, the indigenous rights cause now unifies a broad coalition of Canadian activists, including those involved in climate change, social justice and anti-capitalism.

This only makes sense. A movement that believes it is desirable to severely weaken, or even dissolve, the state in order to achieve some larger goal, whether it's a socialist utopia or green one, will naturally latch onto any movement with shared objectives. This is why it is unpersuasive when conservatives complain, with performative empathy, that "non-indigenous activists" have hijacked the cause of the Wet'suwet'en, or whoever. The more important question is why this cause is so easily hijacked in the first place, and whether it was wise for Canada to have accepted the existence of an independent indigenous political authority without establishing clear parameters around it.

The present crisis is another example of how the Canadian state has embarked upon a remarkable social experiment of gradually devolving its responsibility to uphold the broad national interest — particularly the approval of economically critical natural resource projects — to anyone who claims to speak for Canada's 1.7 million indigenous residents.

This is a risky and radical political idea, and it should be treated with the sort of skepticism all risky and radical ideas deserve. Absent any threat of genuinely revolutionary violence — which a few blockaded train tracks certainly do not represent — it should never be forgotten that the Canadian state is only as powerless as it chooses to be.

Why has Canada chosen this?

[Grey Fox]

Because it's the right thing to do.

[Admiral Yi]

Any legal structure that is based on an assumption of consensus is going to fail.

[Valmy]

Because it's the right thing to do.

I don't know man. I guess I would prefer the indigenous rights belong to the indigenous people, not some self declared hereditary king.

But hey it is not like I know the details.

[Barrister]

Trudeau's timidness personifies a Canadian political class increasingly unsure whether their own power is legitimate. Indian treaties were formally granted the supremacy of constitutional law in the 1980s, and since the 1990s, the Canadian judiciary has been chipping away at the idea that the Canadian state should always prevail when it collides with indigenous assertions of authority.

New legal theories positing that aboriginal bands like the Wet'suwet'en still hold "title" to their lands, and that the settler governments have a "duty to consult" with what activists call Canada's "rightful owners," imply the existence of a vague and open-ended indigenous legal authority that is at the very least coequal to that of Canada. Ponderous "explainers" created by Wet'suwet'en and others have circulated during the recent protests, informing readers of the legal precedents buttressing the protesters' arguments. The intimidating prose reflects the degree to which Canada's indigenous rights movement has become deeply lawyer-centric.

Okay.  The author is confusing a few different legal concepts here (which is not uncommon - this is a confusing area).

In most of the country the various indian bands signed treaties.  The first nations groups signed over ownership of the land in exchange for various promises set out in the treaty.  Now these weren't perfect and there's been litigation over interpreting the treaties, but basic ownership of the land was no longer in question - it belongs to Canada.

However by the time we expanded west to BC... we kind of just stopped even bothering with treaties.

So, as we started taking native rights more seriously there have been a number of lawsuits about exactly what that means for bands in Canada.  They can rightly say they had ownership of the land and never gave that up to Canada.

So ultimately there was a case in the late 90s called Delgamuukw that made it to the Supreme Court.  The SCC tried to play it down the middle in answering the question.  It said, in areas without treaties, the first nations had something sui generis called "aboriginal title".  This is certainly not the same as fee simple title - the band did not literally own the land, but they did have certain rights on that land.  One of the more important rights was that of a duty to be consulted about developments on that land.

Problem of course is that the SCC never really defined what a "duty to consult" looked like.  Courts have said it has to be more than pro-forma, but that it does amount to less than requiring first nations consent (aka giving them a veto).

Canada has also recognized what an unstable situation this is, and has for the last 30 or more years been trying to sign modern treaties in areas that weren't covered.  They've been reasonably successful in doing so.  IN particular almost all of northern Canada is covered by modern treaties.

So anyways, that's the legal background here.  The Wet'suwet'en band, the source of the current trouble, have not signed a treaty (indeed they were some of the plaintiffs in the Delgamuukw case), and so are relying on "aboriginal title".

So anyways - yes this is an issue, yes aboriginal title is a confusing and difficult problem to manage in certain parts of the country, but all the talk of non-Aboriginals going home, or dissolving any national authority, is just silly.

[dps]

If there is a duty to consult with them, but their consent isn't required, it sounds like the duty to consult has been met.

[Malthus]

Article is hyperbole based on a lot of ignorance.

It is true that Trudeau has gotten himself into a political pickle with these protests. One of the reasons is that he has spent some political capital making noises about vastly improving the lot of Canada's indigenous peoples, which is in many ways, depending on the group, pretty miserable - but the talk has not amounted to much actual action. Those actions which have been taken, for example the inquiry into missing and murdered aboriginal women, have had an unfortunate tendency to get hijacked by leftish academics - that inquiry reached the conclusion that Canada was engaged in an ongoing "genocide" against aboriginal women, which lead to exactly as much useful progress as one would expect from such a conclusion. Trudeau's non-native, non-left critics read that conclusion and came to a conclusion of their own - that the whole thing had been a waste of time.

Unfortunately for Trudeau, many indigenous people have reached a similar conclusion - that Trudeau is all talk. While their anger (already present as a result of past injustices and present poverty) has been stoked by plenty of talk about how shabbily Canada has treated them ("genocide" being a term that obviously would have that effect), not much in the way of concrete progress has happened.

In a sense, the rights and wrongs of the current clash don't really matter; the pipeline thing is just a catalyst. It is more "about" a sense that the government simply isn't concerned to do anything about the many grievances that are outstanding. 

The notion that this will lead to a "revolution" that will dissolve the Canadian government is, of course, very dumb.   

[crazy canuck]

I agree with my fellow Canadian Law Talkers.

Also, it should be noted, and almost always is not in the media, that in fact the vast majority of hereditary and elected counsel first nations have been consulted and have agreed to the natural gas line.  It will provide a large economic boost in all of their communities because they are all going to share in the royalty payments - along with incidental direct employment opportunities.  Although that second part is largely incidental.  By far the largest benefit is providing money to those communities which they will use to invest in whatever it is they think is important including local economic development.

The notion that this will lead to a revolution is pure fantasy. If anything more and more indigenous people are telling this group to sit down be quiet.

[crazy canuck]

If there is a duty to consult with them, but their consent isn't required, it sounds like the duty to consult has been met.

The Court has already made that clear in the decision rendered to make the injunction order to clear the protesters

[Oexmelin]

I am sure there are good points in whatever Malthus has written, but I'll just dismiss as an assessment of the situation unduly narrowed by lawyer-talk.

[Grey Fox]

Most of southern Quebec is unceded land. Don't think the French bothered with that.

[Oexmelin]

Most of southern Quebec is unceded land. Don't think the French bothered with that.

No. Because they knew that asking for such a thing was asking for trouble. The St. Lawrence Valley was a special case, as the Iroquoian had been absorbed / vanquished by their enemies. Plus, 17th and 18th century notions of property/sovereignty/dominion were a lot richer, and more nuanced than we usually assume. The current reservations close to Montreal are a different case, having been established as Catholic communities by religious orders (but soon repurposed by Indigenous communities). Titles to the land there are embroiled into different sets of considerations. But even in spaces where it was clear that French settlements were established on what was clearly indigenous land (i.e., in Alabama, Arkansas, Missouri, Texas), they did not ask for such titles.

[Malthus]

I am sure there are good points in whatever Malthus has written, but I'll just dismiss as an assessment of the situation unduly narrowed by lawyer-talk.

Would a broad assessment lead to the conclusion that the Trudeau government has handled aboriginal affairs well?

[Oexmelin]

Would a broad assessment lead to the conclusion that the Trudeau government has handled aboriginal affairs well?

No, it's just a shot at the recurring tendency to dismiss "left-academic" as somehow disconnected silly-talk.

[Camerus]

Not to mention the fact that it is, given the ideological capture of our humanities and social science departments, a phrase largely redundant.