Reconciliation and the “war of law”

Earlier today, I decided to mark Indigenous Peoples Day by making a donation to support the First Nations legal struggle to stop the massively destructive Site C dam in northeast BC.

I’ve had the pleasure of travelling many times to Treaty 8 territory and I’ve become a passionate supporter of the efforts of First Nations and farmers to save the beautiful, irreplaceable Peace River Valley.

But there was another reason I wanted to support this legal challenge. It has to do what Truth and Reconciliation Commission Chair, Senator Murray Sinclair has called “the War of Law.”

To me this powerful phrase invokes not only laws that are harmful in their intent and purpose  – of which there have been many – but all the ways that the law is applied in a discriminatory and unequal manner, with often devastating impacts.

It invokes the laws passed by the federal government that led to Indigenous children being torn from their families and cultures during the long residential school era, as well as the denial of Indian status to First Nations women who married non-Indigenous men (a discrimination that still impacts many of their descendents). It invokes the unequal application of the law by police and courts that has helped fuel the sense that the perpetrators of violence against women and girls can act with impunity. And it invokes the repeated acts of federal and provincial governments to simply ignore their legal obligations toward Indigenous peoples, putting the onus on Indigenous peoples to mount long and costly legal struggles to defend their lands and cultures.

Senator Sinclair wrote about the “War of Law” in the context of endorsing Bill C-262, a private members bill to bring Canada’s laws and policies into line with the obligations affirmed in the UN Declaration on the Rights of Indigenous Peoples. The Declaration is a transformational human rights instrument that calls not only for an end to discrimination against Indigenous peoples, but also for the right of Indigenous peoples to control their lives and futures to be recognized and upheld. Senator Sinclair said that full implementation of the Declaration “will not undo the War of Law, but it will begin to address that war’s legacy.”

An historic milestone

In an historic vote last month, Bill C-262 was passed by the House of Commons and sent on to the Senate. We hope that it may soon enter into law, establishing a clear framework for the federal government to work with Indigenous peoples toward the full implementation of the Declaration, including through reform of other laws and policies.

All the MPs who voted for Bill C-262 – including Romeo Saganash and the other NDP MPs who led this initiative, and the Liberal MPs who kept their promise to fully support the Bill – deserve to be commended. But this breakthrough is first and foremost a triumph for the Indigenous peoples’ movement whose advocacy led to the creation of the Declaration in the first place and which has persisted in calling for its implementation in Canada, whether the government of the day was out right hostile or merely hesitant.

The Bill C-262 milestone followed a number of other important victories this year, including the long overdue announcement by the federal government that it will not pursue any more legal arguments to try to get out of its obligations to comply with the groundbreaking 2016 Canadian Human Rights Tribunal ruling on underfunding of First Nations child and family services.

But the year has also seen numerous other disappointing, frustrating and often shocking examples of how the “war of law” continues.

The gap between rights and rhetoric

Even as it supported Bill C-262, the federal government has advanced new laws for the review and approval of resource development projects, laws that fall short of the standards required by the Declaration. The new impact assessment legislation will, for the first time, require that the review process consider impacts on the rights of Indigenous peoples. Compared to the decision making process around Site C, for example, where the review panel was specifically instructed not to look at Canada’s legal obligations in respect to Treaty 8, this is an improvement. But the new legislation does not include any explicit requirement to actually uphold the rights of Indigenous peoples.  And like previous legislation it leaves complete discretion in the hands of Cabinet. Unfortunately this means that there’s little guarantee that the outcome of a decision like Site C would be any different under the new legislation.

Last week we also learned the deeply disappointing news that an important effort to challenge discrimination through the Canadian Human Rights Tribunal cannot proceed. Two families, Matson and Andrews, had tried to bring challenges under the Canadian Human Rights Act in an attempt to compel the government to deal with outstanding inequalities in its treatment of descendants of women whose Indian status had been taken away. In a decision that has potentially far reaching consequences for access to justice in Canada, the Supreme Court upheld a lower court ruling that the Canadian Human Rights Act, which prohibits discrimination in the provision of federal services, cannot be used to challenge discrimination in the legislation governing those services. The alternative left to these families is to launch yet another, much longer, and much more expensive process by way of a Charter challenge.

We were also deeply disappointed by the federal government’s statement earlier this month that it is not ready to act on an interim recommendation by the National Inquiry on Missing and Murdered Women which last November called for the creation of a national task force to reopen cases where bias and other factors has led to inadequate investigations. When the National Inquiry was announced in 2016, many organizations were critical of the failure to establish a parallel process by which such cases could be reopened and investigated independent of the original investigating police force. The need for such independent re-examination of cases is amply demonstrated by numerous past studies and inquiries pointing to frequent failure to properly investigate cases of missing and murdered women and girls.

And earlier this year, longstanding concerns about the Canadian justice system were again in the spotlight after the outcome of the trial of Gerald Stanley for the killing of Colten Boushie, and the outcome of the trial of Raymond Cormier for the killing of Tina Fontaine. As many pointed out, there have already been numerous high level inquiries that have not only identified profound failings in ability of the justice system to meet the needs of Indigenous people in Canada, but also pointed to clear directions for reform. What is missing is not evidence of the problem, but political will to enact change.

From promises to action

The is an era of unprecedented government commitments to honour and respect the rights of Indigenous peoples. These commitments are important and welcome. But commitments alone are not enough. The promises that governments have made must be honoured through concrete, meaningful and principled action.

Furthermore, while changes in federal and provincial laws and policies are urgently needed, we also need to hold governments to account for applying the law fairly and without discriminatory double standards.

Returning to Site C, in one month, a BC court will begin hearings on whether to impose a temporary injunction on construction until the court has had the chance to consider whether flooding the Peace Valley would violate Treaty 8. BC Hydro has acknowledged that the question of whether Site C would violate Constitutionally-protected Treaty rights was never even considered before construction was approved. While in opposition, John Horgan, now the Premier, called the dam a violation of Treaty rights. Yet, shamefully, despite public commitment to uphold the UN Declaration and build a new relationship with Indigenous peoples, Premier Horgan’s government is now fighting to continue construction while this crucial matter is before the courts.

There is, however, a clear note of hope in this story. In contrast to the actions of the BC government, the federal government has stated that it will not oppose the injunction application. It’s a small step. But it’s a step in the right direction. Furthermore, in deciding not to fight the injunction, it’s almost certain that the federal government was influenced by the public outrage at home and abroad over its violation of Treaty rights in the Peace Valley.


Photo: Stakes planted in threatened land in the Peace River Valley as part of an ongoing fundraiser to support the First Nations legal challenge.