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 Those treaties aren’t just historical documents: The promises contained in them are protected by Section 35 of the Charter of Rights and Freedoms.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.

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Rabble: Out of order: Indigenous protest and the rule of law

Out of order: Indigenous protest and the rule of law

| October 21, 2013

Out of order: Indigenous protest and the rule of law

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….