TS: The often-ignored facts about Elsipogtog

SOURCE: http://www.thestar.com/opinion/commentary/2013/11/14/the_oftenignored_facts_about_elsipogtog.html

The often-ignored facts about Elsipogtog

The majority of Canadians have been woefully under-informed about what is really going in Elsipogtog.

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Demonstrators rally against shale gas exploration in Halifax on Friday, Oct.18, 2013. The effort was in support of protesters at Elsipogtog.

Andrew Vaughan / THE CANADIAN PRESS

Demonstrators rally against shale gas exploration in Halifax on Friday, Oct.18, 2013. The effort was in support of protesters at Elsipogtog.

By: Chelsea Vowel
Published on Thu Nov 14 2013

Despite the plethora of informative articles about the ongoing struggle at Elispogtog First Nation, north of Moncton, New Brunswick, and the RCMP raid there last month, most mainstream media outlets have been underemphasizing some very important aspects of the conflict. As a result, many Canadians are focusing solely on the image of burning vehicles, and some are even going as far as to brand native protestors as terrorists.

Before engaging in a back and forth about who is more in the wrong, I suggest addressing some outstanding issues that for some reason are not treated as central to these events.

First is the issue of the way in which mainstream Canadian media so often fail to comprehensively report on indigenous issues. In their book, “Seeing Red,” Mark Anderson and Carmen Robertson researched English-language portrayals of indigenous peoples in the mainstream media since 1869. They found that media reports since that time have remained essentially the same, too often depicting natives as inferior morally, physically, mentally and historically.

What that research could not take into account, is how social media has made alternative media a viable option for a wider range of people. Thus, for those interested in this issue, there is much reportage and commentary that can be easily accessed beyond what little we’ve seen in mainstream media.

It is essential that we dig deeper, and form our opinions based on as wide a range of perspectives as possible. The majority of Canadians have been woefully under-informed about what is one of the most important outstanding issues related to the events in Elsipogtog: land and resource ownership.

In 1997, the landmark Supreme Court Decision in Delgamuukw finally clarified that even under Canadian law, Aboriginal title to most of the land within British Columbia’s provincial borders had never been extinguished. This ruling had immediate implications for other areas of the country where no treaties ceding land ownership were ever signed. One day, Canadians woke up to a legal reality in which millions of acres of land were recognized as never having been acquired by the Crown, and that elephant has been occupying our national room ever since.

Unfortunately, this glaring issue did not seem to percolate into the wider Canadian consciousness, and many people remain unaware of it. In 1999, the Supreme Court passed down another judgement confirming that the Peace and Friendship Treaties of 1760-1761 did not cede land or resources. This cannot be emphasized strongly enough: the Mi’kmaq never gave up legal rights to their land or resources. Canada does not own the land that the people of Elsipogtog are defending.

This is not conspiracy theory, or indigenous interpretation. This is Canadian law, interpreted by the Supreme Court of Canada, applying Canadian constitutional principles. Yet somehow, this most important fact is left out of most reports on Elsipogtog as though it is barely relevant.

Often misunderstood by the general public, too, is that the people of Elsipogtog have widespread support from Acadians and Anglos in the area. In fact, the majority of people living in New Brunswick support a moratorium on fracking, in direct opposition to Premier David Alward’s wholehearted embracing of shale gas exploration. Opposition to fracking is not a fringe position; it is the majority position in the Atlantic provinces and elsewhere throughout Canada.

So here you have a group of people who never gave up ownership of their land or resources, opposing widely contested shale gas exploration, which was approved by a government that does not own the land or resources, acting with the support of their non-native neighbours and being reported on by mainstream media outlets that often fail to address the substantive issues.

All of this is extremely problematic, even if you do not take into account the violence and the timing of the Oct. 17 RCMP raid.

None of these facts are changed by burning cars, by the presence or absence of rubber bullets, or by whether or not Canadians like indigenous peoples. Those attempting to paint the people of Elsipogtog as law breakers must not be allowed to ignore the wider legal context which calls into question the legitimacy of resource exploitation without consent anywhere in Canada, particularly on unceded lands.

Earlier this week, SWN Resources’ lawyer offered to withdraw a lawsuit against several community members if the company could finish exploration. Indigenous and non-Indigenous allies in the area reaffirmed their intention to stand together in defence of the land.

Today, the people of Elsipogtog and their allies stand again with their drums, their eagle feathers and their concerns for the land and for the legacy of all future generations. A line of armed RCMP officers face them, ostensibly to protect public safety as SWN Resources attempt to move exploration vehicles back into the area. Using the #Elsipogtog tag, social media has made it possible for people throughout Canada and the rest of the world to access real time information from mainstream and independent media sources as the situation develops. Many hope that this immediate scrutiny will encourage the RCMP to avoid moving in with overwhelming force once more.

Fears of renewed violence should not blind us to the underlying issues: unresolved land claims, resource development without prior and informed consent, concerns of environmental degradation and inadequate economic benefits to residents. Elsipogtog is just one area of the country coming face to face with the consequences of these problems. This is not a “native” issue; this situation impacts every single one of us living on these lands.

Chelsea Vowel (BEd, LLB) is a Métis writer and educator from Lac Ste. Anne, Alberta and currently lives in Montreal.

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MFP: An Inconvenient Truth behind Blazing Police Vehicles

SOURCE: https://monctonfreepress.ca/post/24650

An Inconvenient Truth behind Blazing Police Vehicles (Moncton Free Press)

Dana Hartt
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.

OKT: “Do We Need the Rule of Law to Deal with Native Protestors?”

SOURCE: http://www.oktlaw.com/blog/do-we-need-the-rule-of-law-in-new-brunswick-to-deal-with-native-protestors/

October 23, 2013 4:47 pm

By Michael McClurg

Elsipogtog First Nation is only the most recent in a long line of examples of Aboriginal communities protesting resource development on their lands without their consent, and police force being used to ‘take down’ Aboriginal protest sites.  This is not a “new” story – it has happened before. In some cases, like Oka and Ipperwash, it led to full blown public inquiries to get to the roots of why the Aboriginal protests occurred in the first place, why violence escalated, what could have been done to reduce violence, and how to avoid future conflicts.

You would think that after the Report of the Royal Commission on Aboriginal Peoples and the Ipperwash Inquiry Report, we would have learned a lesson or two about helpful and unhelpful ways to deal with these types of conflicts over resources, including appropriate police responses. But watching reactions to Elsipogtog, we at OKT have a strong sense of history repeating itself.

When conflicts arise about Aboriginal people protesting resource development, you often hear people talk about the “rule of law”; it has come up regularly in media reports and commentary during the current occupation and protests involving the people of Elsipogtog. The concept refers to the idea that power needs to be applied uniformly and not arbitrarily. Some people invoke this term to suggest that the Canadian authorities are not applying the rule of law to Aboriginal protesters in the same manner that they would apply them to non-Aboriginal protesters in similar circumstances.

This argument is often raised by people who support “cracking down on” or quashing (possibly through violence) protests in the same manner that the RCMP raided the occupation at Elsipogtog. This refrain has been repeated many times over the past decades, in response to Aboriginal protests in Canada such as Burnt Church, Kanesatake (Oka), Ipperwash, and Caledonia. It is a simplistic and emotional response to highly complex situations which often have deep roots in historical conflicts. It also  misrepresents the “rule of law” by suggesting that it means applying the law strictly under all circumstances regardless of context. This could not be further from the truth. Indeed, courts and other authorities have repeatedly endorsed a contextual approach to Aboriginal occupations and protests.

The Ontario Court of Appeal in Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council et. al. regarding charges for contempt of court for violation of an injunction spoke of the complex nature of the rule of law in the context of Aboriginal protest and occupation:

“… the rule of law has many dimensions, or in the words of the Supreme Court of Canada is ‘highly textured’… The rule of law requires a justice system that can ensure orders of the court are enforced and the process of the court is respected. Other dimensions of the rule of law, however, have a significant role in this dispute. These other dimensions include respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, respect for the separation of the executive, legislative and judicial branches of government and respect for Crown property rights.”

Picking up on this language two years later, the Ontario Court of Appeal in Frontenac Ventures Corporation v. Ardoch Algonquin First Nation endorsed its holding in Henco that enforcing the rule of law involves a complex balancing. It said that this balancing should be performed before an injunction is ordered in an Aboriginal protest and it emphasized the importance of negotiation in this balancing.

In other words, the rule of law is not just about issuing and strictly enforcing court orders. Upholding the rule of law involves looking at each matter contextually through the lens of the long history of relations between Aboriginal and non-Aboriginal people in Canada. An excellent synopsis of this history and context is provided in the report of the Royal Commission on Aboriginal Peoples, a commission that was created in the wake of the Kanesatake (Oka) standoff. You can read the highlights of that report here.

A very helpful resource for better understanding the rule of law in the context of Aboriginal occupation/protest is the report of the Ipperwash Inquiry. The Ipperwash Inquiry was headed by the Hon. Justice Sidney B. Linden, a judge of the Ontario Court of Justice and was formed by the Government of Ontario in the aftermath of the shooting of Dudley George during the protest at Ipperwash Provincial Park. Part of the purpose of the inquiry was to consider how violence could be avoided in similar circumstances. The report that emerged from the Ipperwash Inquiry is invaluable to understanding these conflicts and the appropriate police response to them.

If you want to understand what is happening at Elsipogtog, and recommended ways to deal with a conflict like this, we highly recommend reading the Ipperwash Inquiry report, as there are many parallels and many of the final recommendations are relevant.

Here are some highlights from the Ipperwash Inquiry report that provide important context on the current events at Elsipogtog:

  • Aboriginal occupations and protests are a symptom of our collective inability to fairly resolve centuries-old tensions and conflicts between Aboriginal and non-Aboriginal communities over the control, use, and ownership of land. Until we “design institutions or implement processes that can resolve these tensions more effectively”, protests and occupations are very likely to continue
  • Aboriginal occupations differ from other kinds of protest and occupation in part because of the long history of mistrust between the police and Aboriginal people – “Police strategy must emphasize the development of communication networks and trusting relationships with Aboriginal people before, during, and after protests”
  • The role of the police is limited to maintaining public order. It is not the role of police to resolve the underlying issue, that is the role of government and government should not duck it – “(G)overnments should not avoid their constitutional obligations to First Nations and Aboriginal people under the cloak of keeping out of police ‘operational matters’”
  • Occupations and protests over land and resources are not new: Historically both non-Aboriginal and Aboriginal communities have used occupations and protests to secure lands and resources from one another, however, non-Aboriginal people have secured much more land and resources this way than Aboriginal people have
  • Studies have shown that, despite commonly held misconceptions, Aboriginal occupations and protests over the past 50 years have been notable for their low levels of violence

It is this context that informs the “rule of law” as it pertains to Aboriginal occupation and protest. Respecting the rule of law is about more than simply charging and arresting people according to the strict letter of the written law. A nuanced and contextual approach is required. An approach that recognizes the underlying history of these protests is needed. An approach that addresses the need of governments to uphold the rule of law by meeting their legal obligations to respect Aboriginal rights is needed.

An extremely important part of the legal context at Elsipogtog is that the protests are occurring on land (and are about land) that the people of Elsipogtog never ceded title to. Aboriginal people in this part of Canada signed Peace and Friendship Treaties with the British in which they never ceded any territory. Canadian law recognizes that the occupation of land by an Aboriginal community at the time of the arrival of Crown sovereignty means that the Aboriginal community owns that land. So, the rule of law in this case would arguably dictate that the protesters have every right to be on their traditional land and that in fact, others, including the Crown and resource extraction companies, are trespassers.

In cases like Elsipogtog, injunction orders and police enforcement cannot and should not exist in a vacuum, separated from the extremely complex historical, cultural, and legal nuances of the situation. If such a simplistic approach is taken to Aboriginal protests, as some in the media would encourage, trust and the potential for negotiation and reconciliation is greatly reduced and the potential for violence and continued protest greatly increases. Those results are not consistent with upholding the rule of law. And they will not bring peace to the land …

Rabble: Everything you need to know about Elsipogtog

Everything you need to know about Elsipogtog

| October 23, 2013

A beautiful reworking of an iconic image from Elsipogtog, by Mi’kmaq artist Jayce Augustine. The original photo was taken by Oss

Though I will be writing on the events that took place on October 17, 2013 when the RCMP raided a peaceful blockade by members of the Elsipogtog Mi’kmaq First Nation, for now I just want to provide people with some already available and excellent resources on the subject. What I won’t be doing is linking to the plethora of unbelievably racist articles that are pouring out, branding the people of Elsipogtog as everything from terrorists, to puppets of environmental NGOs. These pieces already have mainstream attention, capture mainstream attitudes towards indigenous peoples, and are pretty successfully creating the official narrative.

If you want to delve deeper, or need resources with which to counter these portrayals, here you go!

If you have time for only one article, then you need to read this one, written by Martin Lukacs: “New Brunswick fracking protests are the frontline of a democratic fight.”

It does an excellent job of refocusing attention on the reason the blockade existed in the first place, and on the fact that the area in question has never been ceded to Canada, and thus is not owned by Canada. The people of Elsipogtog have been branded as law breakers, but the legality of Canadian actions in that area are completely undermined by this very central fact.

To keep us in that vein, here is an article from 2012 which discusses the fact that 67 per cent of people in New Brunswick support a moratorium on fracking. This is an intensely controversial practice and people throughout Canada and the US, native and non-native alike, stand in opposition to it. The people of Elsipogog are not on the fringe of an issue here, they are in the majority.

For a really good breakdown of the order in which things happened, Daniel Wilson provides us with, “Out of order: Indigenous protest and the rule of law“. He brings up some important issues about the public’s love affair with the ‘rule of law’ from such a distinctly one-sided perspective, which ignores the underlying illegitimacy of Canadian claims to the land in question and the unceasing violation of the ‘rule of law’ by the Crown.

This article: “Elsipogtog “Clashes” 400 years in the making”, by Dru Oja Jay, goes into good detail about some of the history of the area, and how high tensions have run between the Mi’kmaq and the Canadian government. State violence against the Mi’kmaq people has been an ongoing problem, and Elsipogtog is merely the latest in a line of such.

 flickr/flailingphantasm

Leanne Simpson, in her brilliant piece “Elsipogtog Everywhere” brings more context to the deeper issue of the land, and the way in which reconciliation cannot occur without a conversation about that land. If you need to know what deeper acts of resurgence are occurring outside of reactive blockades to deal with lack of consultation and the prioritising of corporate interests over the wishes of all people living in the area, then this article provides it. This is one of the most honest and hopeful pieces I have read on the subject, and it helped me deal with the flood of emotions I’ve been experiencing since watching this all go down on October 17th.

By the way? What the heck is fracking? Here is a video that provides a simple, clear description of the process of fracking, summarising the pros and cons: “CNN Explains: Fracking“.

Recently, a claim was made by He Who Shall Not Be Named (because the guy literally gets paid to troll, and every little mention puts more money in his bloated pocket) that the people of Elsipogtog are basically puppets of foreign environmental groups. The article “Fracking Indigenous Country” (under the donation appeal) is a very long, but detailed rebuttal of any such claims. If you were at all wondering about whether this could be true, this article does an amazing job of completely demolishing these fantasies.

Rex Murphy really put his foot in it as well. Here are two very good responses to his patronising, racist article: “Rex Murphy and the Frames of Settler Colonial War” by Corey Snelgrove, and “Dear Rex: Colonialism exists, and you’re it” by Nick Montgomery.

Jian Ghomeshi put out an audio essay on the incident, summarizing the different opinions and posing some of the important questions the public needs to be asking. He also helps you learn how to pronounce Elsipogtog!

There have been a lot of conspiracy theories going around about provocateurs and US military involvement and so on. Here is an incredibly detailed article by Gord Hill about the tactics and equipment used during the raid which should help dispel some of the most outlandish rumours without downplaying the level of violence initiated by the RCMP: “Overview of RCMP deployment against Mi’kmaq blockade, Oct 17, 2013.”

Another article by the same author questions the rumours about provocateurs setting fire to the RCMP vehicles: “Statement on Provocateurs, Informants, and the conflict in New Brunswick.” Snitch-jacketing, or labeling people as provocateurs or agents of the state is an incredibly divisive and dangerous practice and whether the rumours are spread by law enforcement or our own communities, we have to be careful.

While this next article is not about Elsipogtog, it is nonetheless a very important read. “An open letter to peaceful protestors” debunks a lot of the myths about way peaceful protest was used during the Civil Rights Movement, and clarifies the difference between peaceful, and legal. The need to be organised rather than simply reactive, is highlighted and explained. Every person wanting to be involved in any sort of protest, solidarity action or larger movement, needs to read this article and really think about what it is saying.

To wrap up, I want to thank the artists who have so quickly responded with their support of the movement.

âpihtawikosisân, Chelsea Vowel is a 34 year old Métis from the Plains Cree speaking community of Lac Ste. Anne, Alberta. She is the mother of two energetic girls and holds a BEd and an LLB from the University of Alberta. She moved to Montreal two and a half years ago, fell in love with Roller Derby and decided to stay permanently. Her passions are the Cree language, strapping on roller skates and smashing into other women, and attacking the shroud of ignorance surrounding indigenous issues in Canada. She blogs at apihtawikosisan.com

HPC: Elsipogtog Protest: We’re Only Seeing Half the Story

SOURCE: http://www.huffingtonpost.ca/leanne-simpson/elsipogtog-racism_b_4139367.html

In the mid-1990s I moved to Mi’gma’gi to go to graduate school. I was expecting to learn about juvenile Atlantic salmon on the Miramichi River. I was naive and misguided. Fortunately for me, the Mi’kmaq people saw that in me and they taught me something far more profound. I did my first sweat in the homeland of Elsipogtog, in the district of Siknikt. I did solidarity work with the women of Elsipogtog, then known as Big Cove, as they struggled against imposed poverty and poor housing. One of them taught me my first song, the Mi’kmaq honour song, and I attended her Native Studies class with her as she sang it to a room full of shocked students.

I also found a much needed refuge with a Mi’kmaq family on a nearby reserve. What I learned from all of these kind people who saw me as an Nishnaabeg in a town where no one else did, was that the place I needed to be wasn’t Mi’gma’gi, but in my own Mississauga Nishnaabeg homeland. For that I am grateful.

Nearly every year I travel east to Mi’gma’gi for one reason or another. In 2010, my children and I travelled to Listuguj in the Gespe’gewa’gi district of Mi’gma’gi to witness the PhD dissertation defense of Fred Metallic. I was on Fred’s dissertation committee, and Fred had written and was about to defend his entire dissertation in Mi’gmaw (Mi’kmaq) without translation — a ground breaking achievement. Fred had also kindly invited us to his community for the defence. When some of the university professors indicated that this might be difficult given that the university was 1300 km away from the community, Fred simply insisted there was no other way.

He insisted because his dissertation was about building a different kind of relationship between his nation and Canada, between his community and the university. He wasn’t going to just talk about decolonizing the relationship, he was determined to embody it and he was determined that the university would as well. This was a Mi’kmaw dissertation on the grounds of Mi’kmaw intellectual traditions, ethics and politics.

The defense was unlike anything I have ever witnessed within the academy. The community hall was packed with representatives from band councils, the Sante Mawiomi, and probably close to 300 relatives, friends, children and supporters from other communities. The entire defense was in Mi’gmaw lead by community Elders, leaders and Knowledge Holders — the real intellectuals in this case.

There was ceremony. There was song and prayer. At the end, there was a huge feast and give away. It went on for the full day and into the night. It was one of the most moving events I have ever witnessed, and it changed me. It challenged me to be less cynical about academics and institutions because the strength and persistence of this one Mi’gmaw man and the support of his community, changed things. I honestly never thought he’d get his degree, because I knew he’d walk away rather than compromise. He had my unconditional support either way. Fred is one of the most brilliant thinkers I’ve ever met, and he was uncompromising in his insistence that the university meet him half way. I never thought an institution would.

All of these stories came flooding back to me this week as I watched the RCMP attack the non-violent anti-fracking protestors at Elsipogtog with rubber bullets, an armoured vehicle, tear gas, fists, police dogs and pepper spray. The kind of stories I learned in Mi’gmagi will never make it into the mainstream media, and most Canadians will never hear them. Instead, Canadians will hear recycled propaganda as the mainstream media blindly goes about repeating the press releases sent to them by the RCMP designed to portray Mi’kmaw protestors as violent and unruly, in order to justify their own colonial violence. The only images most Canadians will see is of the three hunting rifles, a basket full of bullets and the burning police cars, and most will be happy to draw their own conclusions based on the news – that the Mi’kmaq are angry and violent, that they have no land rights, and that they deserved to be beaten, arrested, criminalized, jailed, shamed and erased.

The story here, the real story, is virtually the same story in every Indigenous nation: Over the past several centuries we have been violently dispossessed of most of our land to make room for settlement and resource development. The very active system of settler colonialism maintains that dispossession and erases us from the consciousness of settler Canadians except in ways that is deemed acceptable and non-threatening to the state. We start out dissenting and registering our dissent through state-sanctioned mechanisms like environmental impact assessments. Our dissent is ignored. Some of us explore Canadian legal strategies, even though the courts are stacked against us. Slowly but surely we get backed into a corner where the only thing left to do is to put our bodies on the land. The response is always the same — intimidation, force, violence, media smear campaigns, criminalization, silence, talk, negotiation, “new relationships,” promises, placated resistance and then more broken promises. Then the cycle repeats itself.

This is why it is absolutely critical that our conversations about reconciliation include the land. We simply cannot build a new relationship with Canada until we can talk openly about sharing the land in a way that ensures the continuation of Indigenous cultures and lifeways for the coming generations. The dispossession of Indigenous peoples from our homelands is the root cause of every problem we face whether it is missing or murdered Indigenous women, fracking, pipelines, deforestation, mining, environmental contamination or social issues as a result of imposed poverty.

So we are faced with a choice. We can continue to show the photos of the three hunting rifles and the burnt out cop cars on every mainstream media outlet ad nauseam and paint the Mi’kmaq with every racist stereotype we know, or we can dig deeper. We can seek out the image of strong, calm Mi’kmaq women and children armed with drums and feathers and ask ourselves what would motivate mothers, grandmothers, aunties, sisters and daughters to stand up and say enough is enough. We can learn about the 400 years these people and their ancestors have spent resisting dispossession and erasure. We can learn about how they began their reconciliation process in the mid-1700s when they forged Peace and Friendship treaties. We can learn about why they chose to put their bodies on the land to protect their lands and waters against fracking because setting the willfully ignorant and racists aside, sane, intelligent people should be standing with them.

Our bodies should be on the land so that our grandchildren have something left to stand upon.

iPolitics: History comes back to haunt in New Brunswick

SOURCE: http://www.ipolitics.ca/2013/10/21/history-comes-back-to-haunt-in-new-brunswick/

By | Oct 21, 2013 6:59 pm | 0 Comments

A police vehicle is seen in Rexton, N.B. as police began enforcing an injunction to end an ongoing demonstration against shale gas exploration in eastern New Brunswick on Thursday, Oct. 17, 2013. Police say at least five RCMP vehicles were destroyed after they were set ablaze and at least one shot was fired by someone other than a police officer at the site of the protest in Rexton. THE CANADIAN PRESS/Andrew Vaughan

Hey, Canada. We need to talk.

Specifically, we need to talk history – because too many of us don’t know about important parts of it. Without that history, it’s impossible to understand exactly what happened when the RCMP stormed First Nations protestors in Rexton, New Brunswick, last week.

First of all, let’s review what happened. In March 2010, SWN Resources Canada — a subsidiary of a Texas energy company — was granted a license to search one million hectares in New Brunswick. Since this summer, protesters — including members of the Elsipogtog (ell-see-book-toq) First Nation — have been fighting SWN’s plans to search for shale gas. To do that, they blocked access to SWN equipment.

SWN went to court to obtain an injunction against the protestors earlier this month. On Oct. 12, that injunction was extended to Oct. 21; hearings were due to be held on Oct. 18 on the possibility of extending the injunction further.

Instead, on Oct. 17, the RCMP stormed the protestors in full riot gear to enforce the injunction. Forty people were arrested, including Elsipogtog Chief Arren Sock. Protestors reported that the RCMP pepper-sprayed elders and fired rubber bullets. One protestor was so badly injured that he risks losing his leg.

That’s the recent history. Now, let’s go back a little further.

The government’s relationship with First Nations in New Brunswick is governed in part by the Peace and Friendship Treaties of 1760-1761. Those treaties aren’t just historical documents: The promises contained in them are protected by Section 35 of the Charter of Rights and Freedoms. The contents of those treaties are extremely important to understanding the Rexton protests.

Unlike later treaties signed with other First Nations in Canada, the Peace and Friendship treaties did not surrender First Nations’ rights to their land. As a result, the Mi’kmaq and Maliseet First Nations continue to claim title to their traditional territory — including the land on which the blockade occurred.

Title to the land is an issue, then. But even in cases where First Nations haven’t proved they have title to disputed land, the government still has a duty to consult with them and accommodate their interests. Elsipogtog protesters have maintained that the New Brunswick government hasn’t adequately consulted with them over SWN’s search for shale gas.

Too many Canadians don’t know this context; without it, the Rexton protests are much harder to understand. The protestors have demonstrated such persistence — and such frustration — because this looks like just one more example of the government failing to meet its duties to First Nations people. These protests aren’t just about fracking or a lower court injunction; they’re about the most basic agreements on which our country was founded, the most fundamental laws of our country.

Frustration at the government’s failure to uphold its own laws isn’t limited to New Brunswick. This past weekend, the Alberta government decided to stay the course on its decision to keep two First Nations groups out of consultations regarding a new oilsands proposal. Métis Local 1935 and the Fort McKay First Nation both filed statements of concern about a proposal for a 6,000-barrel-per-day oilsands project 20 kilometres from a Fort McKay reserve, but have been excluded from hearings.

A judge from Alberta’s Court of Queen’s Bench encouraged the government to widen its consultation process. But why would the Alberta government let a petty thing like the law get in the way of oilsands development?

That’s not to mention the still-unresolved frustrations that launched Idle No More in December of last year, including the lack of consultation by the federal government on important decisions, the terrible housing conditions on too many reserves, and Ottawa’s continued refusal to hold a full national inquiry on missing and murdered indigenous women.

Our federal government has established a pattern of ignoring its obligations to First Nations — and that’s not something that can be resolved through lip service. In fact, the situation of Canada’s indigenous people is so bad that James Anaya, the UN Special Rapporteur on the Rights of Aboriginal People, termed it a “crisis” when he concluded his eight-day visit to Canada last week, only two days before the RCMP stormed Rexton.

Unfortunately, the response to the Rexton protests has shown a marked lack of contextual understanding. For many people, it seems, history on this issue begins and ends with burned-out cop cars.

Media coverage of the Rexton protests has shown that, for too many Canadians, it’s shamefully easy to forget about our historical obligations to First Nations. If we’re serious about resolving future disputes peacefully, we need to do a much better job of remembering our history.

Devon Black is studying law at the University of Victoria. In addition to writing for iPolitics, Devon has worked for the Canadian International Development Agency, Leadership Africa USA and RamRais & Partners.