An Inconvenient Truth behind Blazing Police Vehicles (Moncton Free Press)
November 4, 2013
There are at least two interrelated stories in the events of October 17th in Rexton, New Brunswick: First Nations land rights and widespread opposition to hydraulic fracturing. Neither is getting the press it deserves. This article will not give the issue of hydraulic fracturing in New Brunswick the press it deserves, because, in the authors opinion, the issue was settled on October 1st, 2013, if not before. This article will, however, attempt to place the events of October 17th in Rexton in a rarely considered historical context in order to address the issue of First Nations land rights as this relates to the struggle against the shale gas industry in New Brunswick.
In much corporate-owned media, when there is not lazy disregard of historical context, there is outright institutionalized contempt for an understanding of modern colonialism and oppression of First Nations people in Canada. In coverage of past resource disputes with First Nations, we had commentators framing the discussions with a narrative that revolved around the absurdly inverted premise that First Nations people were not responsible stewards of natural resources (having responsibly stewarded this land for thousands of years before Western industrial capitalism came to nearly decimate the entire planet within the last one hundred or so).
Now, we have Rex Murphy commending every one of our recent political leaders for their gallant efforts at treating contemporary First Nations issues with “the greatest delicacy”, while utterly failing to acknowledge that Canada’s recent history is rife with examples of treaties with First Nations not being honoured, nor the apparent attempt to make that reality either unknown or irrelevant to the Canadian public. We have New Brunswick Premier David Alward alarming us with the claim that an imminent threat to public safety was behind the Royal Canadian Mounted Police’s decision to raid the protest site, as well as the RCMP’s explanation of this attack as an enforcement of an injunction (that had no legal merit). We have sensationalistic images of burning police vehicles on every front page and endless repetitions of the Canadian-native-breaking-the-law narrative.
But was anyone at the protest site in Rexton actually breaking the law at any point before they were threatened and provoked by the RCMP? Was the injunction provided to SWN Resources by the provincial court valid?
Subsection 35(1) of the Canadian Constitution Act (1982) states: “existing Aboriginal and treaty rights of the Aboriginal Peoples of Canada are hereby recognized and affirmed.” A Canadian government website says: “Under the Peace and Friendship Treaties of 1760 and 1761 in the Maritimes, the Mi’kmaq and the Maliseet signatories did not surrender rights to lands or resources.” Among others, a 1999 Supreme Court of Canada ruling (which found that a Mi’kmaq man, Donald Marshall, Jr., had the legal right to fish for eels out of season) reaffirmed that the Peace and Friendship Treaties signed in 1760 and 1761 did not entail a transfer of land from the First Nations people to the Crown. So, the treaties do not entail any ceding of land to the European settlers, and Canada has pledged to honour those treaties.
This means that all of the land that the descendents of European settlers call ‘crown land’ is actually, legally, still owned by the First Nations people, and those European settlers recognized, in these treaties, the sovereignty of the First Nations people. These are facts conveniently glossed over in the Canadian public school system, where Canadian children for generations have been given the impression that their forefathers defeated the ‘savages’, who never constituted sovereign nations, and relegated them to a few squalid reserves, with no claim to any land or resources beyond what Canada kindly decided to allow at some vague point in the distant past, and this perception is reinforced in corporate-owned media representations of Canadian disputes with First Nations as well as by the public policies of our political leaders. There is a fundamental disconnect between reality and public perception, with reality continually reaffirmed by the Supreme Court of Canada and public perception continually reaffirmed by corporate-owned media and political leaders.
It is beyond the scope of this article to recount the entire long history of Canadian governments’ (federal and provincial) disregard for treaties signed with First Nations. However, it may be helpful to review a few recent cases involving the Mi’kmaq, in order to establish that the event in Rexton is not an isolated incident but is in fact part and parcel of ongoing disregard for the Peace and Friendship Treaties on the part of Canadian governments, and therefore, is the latest event in ongoing Canadian colonialism.
The Listuguj Mi’kmaq had been subsistence fishing the Restigouche River for thousands of years. By the middle of the 20th century, with commercial fishers and upstream sport fishers claiming that Listuguj Mi’kmaq fishers were diminishing their catch, the Province of Quebec leveled the charge that the Mi’kmaq were violating provincial fishing laws and, throughout the 1970s, charged them with illegal fishing. The Listuguj Mi’kmaq asserted their treaty rights by continuing to fish to sustain their way of life and their community. On June 11th, 1981, the Quebec Provincial Police conducted raids on the Listuguj First Nations reserve. Approximately five hundred police and fisheries officers stormed the small community, beating and arresting residents and seizing boats and fishing nets under direct orders from the Quebec government. The attack on June 11th, 1981, united the community to successfully erect a blockade to hinder a second raid on June 20th.
All convictions resulting from the arrests were eventually overturned in an affirmation of the treaty rights of the Mi’kmaq of Listuguj. On May 19th, 1993, the Listuguj Mi’kmaq First Nation Government took over the management of the salmon fishery on the Restigouche River where it flows between the provinces of New Brunswick and Quebec. Culturally predisposed to understand the balance between exercising their inherent right to fish and taking responsibility for protecting the salmon stocks for future generations, they developed a fishery management plan that ultimately became the Listuguj Mi’kmaq First Nation Law on Fisheries and Fishing. In 1995, the Atlantic Salmon Federation recognized the Listuguj First Nation for overseeing the “best-managed river” in Quebec. But, in this instance, the Listuguj Mi’kmaq First Nation did more than just regulate a critical resource; they provided a model for responsible resource management by First Nations people, one that may serve New Brunswick Mi’kmaq well in the years to come.
In 1998, the Listuguj Mi’kmaq again asserted stewardship over their traditional territory and took a stand against unsustainable logging exploitation of it. After several denied requests to obtain logging rights from the Quebec government, the Mi’kmaq Grand Council authorized Mi’kmaq companies to harvest logs on their territory (‘crown land’) behind the Listuguj reserve. The Province of Quebec countered by pressuring the New Brunswick mill processing the harvested logs to stop accepting ‘illegal’ Listuguj logs. The Mi’kmaq then erected a blockade on a logging road associated with a Groupe de Scieries (GDS) sawmill, which they also occupied. After a negotiator was sent by the provincial government, the MGC formally claimed jurisdiction over its traditional territory. Quebec threatened to dismantle the blockade and end the occupation by force. The Mi’kmaq noted that recent Supreme Court decisions mandated that any disputes over sovereignty, land, and resource issues must be settled by negotiations and not by violence. Finally, a deal was reached that provided the Listuguj Mi’kmaq with its own sustainable lumber industry.
In 1999, under attack from European settler descendents in the fishing industry, the Mi’kmaq of Esgenoopetitj First Nation established an armed encampment on the wharf of Burnt Church, New Brunswick, in order to protect their people who were continuing to assert their treaty rights to catch lobster in the bay. In 2000, they voted to reject the federal government’s proposal that they relinquish their treaty rights in exchange for five well-equipped boats and a $2 million dollar wharf. Later that year, Department of Fisheries and Oceans officials destroyed their lobster traps in a late-night raid, as well as seizing one boat and over seven hundred traps. Several arrests were also made. The Mi’kmaq responded by erecting a blockade of a major commercial route. This was soon dismantled by force. After the blockade, attacks on First Nations fishers escalated beyond destruction and seizing of property to forcing First Nations fishers into the water by ramming their fishing boats with DFO boats.
The federal government spent roughly $15 million dollars to terrorize and demoralize the fishers of the Esgenoopetitj First Nation, not including legal costs. The crisis concluded with an Agreement in Principle that affirmed the right of the Esgenoopetitj Mi’kmaq to fish for subsistence purposes but denied their right to commercial fishing. Also, a 2002 federal report suggested that several charges be dropped and fishers be compensated for damaged/seized boats and traps, but that First Nations fishers should be permitted only to fish in season and be required to obtain a licence.
Apart from occasional claims, usually beginning with practical action when attempts through ‘proper’ channels have proved fruitless, the issue of Mi’kmaq land and resource control remains very much unsettled.
On October 1st, 2013, to very little fanfare or concern from anyone outside the most arcane circles of people who follow First Nations rights and anti-fracking protests (although, obviously it did not escape the attention of the provincial government), Chief Arren Sock announced that the Elsipogtog First Nation and the Signitog District Grand Council would be resuming stewardship of all land not privately owned in their territory. Sock said that, being “compelled to act to save our waters, lands, and animals from ruin”, the First Nations people would be “reclaiming responsibility for stewardship of all unoccupied native lands in their territory.”
This is the land not ceded by the 1760 and 1761 Peace and Friendship Treaties, land the descendents of European settlers generally refer to as ‘crown land’, comprising approximately 48% of New Brunswick. The announcement was made in Rexton, in front of the Irving compound where five SWN thumper trucks were being prevented from leaving by a blockade erected several days before.
The response from the New Brunswick government took sixteen days, but it was unambiguous.
Beyond this declaration by Chief Sock, it was almost a perfect storm for another confrontation. This article won’t even cover, except in passing, Canada’s three years of opposition to the UN’s Declaration on the Rights of Indigenous Peoples, or our Prime Minister’s 2009 G20 statement that: “We have no history of colonialism.” Two days prior to the events at Rexton, UN Special Reporteur on the Rights of Indigenous Peoples James Anaya’s visit concluded (a visit the Canadian government had not been permitting him to make for about a year and a half and after three written requests), and his initial report cited what he described as a “crisis when it comes to the situation of indigenous peoples of the country.” Then, on the day before the raid, came our Prime Minister’s Speech from the Throne, in which he paid lip service to First Nations people but made a foundational denial of their sovereignty clear with a bit of colonial utopian imagery of settlers who “forged an independent country when none would have otherwise existed.”
At the protest site, all was calm. People smiled, sang, and danced, as they had been doing for weeks, and they removed any barricades that were impeding traffic. The RCMP stopped by to give a gift of tobacco to the protesters to signify their solemn promise of peacefulness in their future negotiations.
The next morning, reports started coming out of Rexton that something was happening, although details were sketchy due to a strategic media blackout imposed by the RCMP. By now, the particulars of excessive force and suppression of media have been well documented. But there is a more fundamental issue that is only now beginning to get due attention in at least independent media. Reality check: Given what has been established regarding Mi’kmaq sovereignty and land rights, what happened in Rexton on October 17th was a violent armed incursion on the territory of another sovereign nation.
Why did it happen? Theories abound. Considering what was said by SWN’s lawyer in the Times and Transcript article ‘Enforce Injunction: Lawyer’, subtitled ‘SWN Resources says courts and RCMP should act to curb blockade by shale gas protesters’ (that the RCMP are “aiding and abetting” the protesters), one might see this as an American company pressuring the RCMP to enforce its corporate mandate to frack New Brunswick.
Given the tight control on media during the incident (including the groundless arrest of Miles Howe of the Halifax Media Co-op), it appears to have been a deliberately engineered attempt to smear those gathered at the protest site. The author’s personal opinion is that, following so closely on Sock’s announcement, it appears to be a message that would clearly indicate to the Signitog District Grand Council what would happen if they insisted on exercising their sovereign claim over 48% of New Brunswick.
So, how do our governments feel about the First Nations sovereignty and land rights enshrined in the treaties and affirmed by both the Canadian Constitution and the Supreme Court of Canada? One of the RCMP officers at Rexton that day expressed it quite well when he yelled: “Crown land belongs to the government, not the f*cking natives!”
Those in power, from our elected leaders to those who take orders from them, are ignorant, perhaps willfully, of the reality of present-day New Brunswick: that the descendents of European settlers are here as guests, but are treating their hosts as though they were vermin, while making the house uninhabitable.
Recent events have again ignited a debate about hydraulic fracturing, with pros lobbed at those who are against it and cons fired back at those who are for it. The pros and cons of fracking are now irrelevant in New Brunswick. The First Nations people have declared that they are resuming direct stewardship of what the descendents of European settlers term ‘crown land’. In order to engage in seismic testing and subsequent hydraulic fracturing, SWN Resources must have the consent of the First Nations people, and they most decidedly do not – and they won’t get it, because the short term benefits and long term drawbacks of a New Brunswick shale gas industry are not in the best interest of those living in New Brunswick seven generations into the future. End of debate.
Or is it? Does the law really matter when those in the right can be so easily demonized by the colonial power and its mouthpieces in the corporate-owned media? And, as regards the law, it didn’t seem to be too difficult for SWN to obtain from the provincial court an injunction that has no legitimacy on sovereign Mi’kmaq territory. Will the Supreme Court of Canada affirm the right of the First Nations people to assume stewardship of all land not privately owned in New Brunswick? It appears we are going to find out, as Chief Sock announced on October 25th, 2013, that First Nations people would be taking the province to court for the right to steward their own land. In the meantime, the First Nations people will have to assume that stewardship in practical terms, which they have done in Rexton, and then we will see what comes of each individual case. One thing is clear: It is much easier for the Supreme Court’s recurrent reaffirmations of First Nations sovereignty and land rights to be ignored by our governments and public if First Nations people are seen to be engaged in violent conflicts with Canadian police.
Harsh words were spoken. Molotov cocktails were thrown. Six police vehicles were set ablaze (although, by whom we do not yet know, and may never know). When you enter their sovereign territory, pepper spray peaceful protesters (including a woman in prayer), shout inflammatory (and factually inaccurate) remarks, and point assault rifles that can fire about fifteen shots per second at women (some pregnant), children, and elders, how do expect them to react? The intended reaction, it would seem.
It begins what could spiral into a cycle of violence, and no one wants that.
So, it behooves Premier David Alward and SWN resources to resolve the issue of shale gas extraction and First Nations opposition to it within a recognition of First Nations sovereignty and land rights, particularly their recent decision to assume direct responsibility for the stewardship of this part of Turtle Island (the First Nations name for North America). Further, it behooves the provincial government to work with the First Nations people to manage all land not privately owned in New Brunswick in such a way that management is consistent with considering seven generations ahead and not just four years. We could see the wisdom of First Nations people (making the decisions) and the scientific/technological expertise of Western culture (implementing the decisions) work together to build a sustainable future for all. Either that, or they send in armed men to threaten the weak of body, provoke the weak of temperament, and demonize the entire set of First Nations people all across Canada, again and again, as European settlers have done since they arrived.
Canadian colonialism never ended; it is an ongoing process that will not end until cultural genocide is accomplished or we decide to end it. And New Brunswick is now the focus of a growing resistance.