Out of order: Indigenous protest and the rule of law
| October 21, 2013
Sometimes it helps to put things in order, in precedence and priority, in order to see them clearly. This is one of those times.
With today’s lifting of the injunction preventing anti-fracking protests in New Brunswick, the first question that comes to mind is why the RCMP felt it necessary to provoke the conflict that occurred last Thursday.
Having waited two weeks, they could have waited another five days to see what the law would rule on the issue, but instead showed up at a previously peaceful protest with hundreds of officers, snipers, dogs, riot gear and tear gas.
The chaos that followed led to plenty of negative media coverage of the protests, which is convenient for the Texan seismic testing company SWN, their partners Irving Oil, and the provincial and federal governments, but decidedly inconvenient for the Elsipogtog First Nation.
Questions around whether the protesters, agents provocateur, or the RCMP themselves set the police cars on fire and who was responsible for the “cache” of weapons the RCMP were so keen to display will likely never be answered. As no charges are pending for those questions, no legal finding of fact will be made. This, too, is a convenient result for those wishing to assign blame based on prejudice rather than facts, but unhelpful to the rest of us.
The events of October 17 also added to the pre-existing mistrust between the parties – something UN Special Rapporteur James Anaya had highlighted in his preliminary report on Canada’s human rights abuses one week ago – and make a negotiated settlement of the issues less likely, adding to the probability of future conflict. Again, this is rather inconvenient for those of us who would prefer a turn toward the reconciliation the Supreme Court has ordered and the Crown claims to seek, but decidedly advantageous to those who wish to continue the status quo.
More broadly, what the events of last week reveal is the ongoing confusion over the idea of “the rule of law” among the media and public alike.
Every time Indigenous people block a road or a rail line, or even slow traffic to hand out information pamphlets, there is outrage over the failure to respect and enforce the rule of law. These are almost always temporary events, usually amounting to minor inconvenience, occasionally some damage to property, rarely an injury to anyone except the protesters.
Yet, every day of the last 250 years, the Crown has violated the rule of law. It will do so again today and again tomorrow. And there will be no public outrage.
The Peace and Friendship Treaty of 1761 between the Mi’kmaq and the Crown governs the area in New Brunswick where the anti-fracking protests took place. It did not cede any land, but that is inconvenient and so the Crown shows it no respect.
Nor is the Crown fully respecting other treaties across the country, whether historic or modern, another point UNSR Anaya mentioned. Nor is it respecting its own Royal Proclamation of 1763.
All of these documents are valid international law and enshrined in Canada’s Constitution domestically, surely more important law than a temporary injunction covering a few metres of highway.
The net effect of the Crown’s violation of the rule of law is a 50% poverty rate among First Nations children, a 30% earned income gap for Indigenous people, grossly disproportionate rates of suicide and other social ills, hundreds of missing and murdered Indigenous women, and the ongoing destruction of the environment, any one of which is surely more important than a traffic delay or a dent in SWN’s bottom line.
If, as I argue here, the significance of the laws being broken by the Crown is greater both as a matter of law and in effect, the priority for respecting those laws seems clear.
The hundreds of court cases won by First Nations against the Crown over the past 40 years are more than sufficient evidence of the Crown’s utter contempt for the rule of law when it comes to Indigenous rights in this country. And yet, politicians, media and members of the public will portray last week as another example of Indigenous peoples’ intransigence. None of them will give a moment’s thought to the ongoing violation of the Peace and Friendship Treaty of 1761, a continuing violation that preceded last week’s events by over 250 years.
It is time to put these matters in order, because clearly there is no peace. And with friends like these….