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Under cover of COVID-19, rule of law falters | Pamela Palmater

Thursday, April 23, 2020 @ 8:27 AM | By Pamela Palmater


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Pamela Palmater
Just before the COVID-19 pandemic hit Canada, Indigenous peoples and allies were engaged in nationwide solidarity actions in support of the Wet’suwet’en Nation, its traditional leaders and clan members. Their actions were in response to RCMP removing Wet’suwet’en peoples from their homes to allow construction of Coastal Gaslink pipeline on their territory without their consent. Solidarity actions included peaceful occupations of railways, ports, bridges, highways, legislatures and minister’s offices supporting Wet’suwet’en calls for RCMP and Coastal Gaslink off Wet’suwet’en lands.

As a result of such widespread support for the land rights of the Wet’suwet’en Nation, federal officials met with the traditional leaders to discuss their Aboriginal title rights. Then the pandemic hit and federal and provincial governments responded by issuing directives for everyone to stay at home and not gather in public places — some police even issued fines for violators. Yet, extractive industry workers were permitted to continue travelling back and forth from their camps and gathering in large numbers to facilitate construction despite the serious health risks posed by the pandemic.

This was a sign that one of the first casualties of the pandemic would be the rule of law and with it, native rights. The so-called rule of law has always been selectively applied in Canada to suit the needs of governments and the massive corporate and business interests that support them. If Canada was truly a country that was committed to the rule of law, then at least in theory, all relevant and just laws would be applied in a fair, non-discriminatory manner that balances its application with the impacts on society. The rule of law would mean that Indigenous laws, Canadian laws and international laws to which Canada is bound, would all be harmonized and jointly enforced. Instead, when consultation doesn’t result in a “yes” from impacted First Nations, governments often resort to their police forces to enforce the “law of rulers” to push through projects on Indigenous lands.

In every way, the justice system has always been skewed against Indigenous peoples. Contests between native rights and corporate interests supported by governments are always decided in settler courts, by settler rules of procedure and by settler judges. It tends to be federal and provincial laws and policy objectives that are given any real weight in judicial decisions. While many courts will acknowledge native rights and praise their importance within both common law and Canadian law; in the end, it is Canadian law, via s. 35 of the Constitution Act, 1982, that is used to regularly justify the government infringement of native rights. There is rarely ever a pure legal victory for Indigenous peoples.

With every decision, where a court appears to uphold native rights, there is always something that serves as a limitation. Ultimately, looking at the entirety of cases, native rights are “justifiably” breached more than they are protected. Reconciliation is a legal concept that continues to be used to ignore native sovereignty and governing powers and replace it with limited rights under Canada’s legal system. This is a legal fiction created by the courts that does not reflect either our treaties or our status as sovereign legal entities in international law. In fact, the United Nations recognized long ago that European states only entered into treaties with native peoples in what is now Canada and the U.S. because we were sovereign peoples and we had title to our lands. Nothing about the historic treaties diminishes that legal status. With that sovereign legal status comes the inherent power and legal right to say no to any government actions that would impact our legal interests — including our lands.

Certainly, it can be argued that the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) supports that idea that Indigenous peoples are not only self-determining, but that they alone have the right to decide what happens on their traditional lands. In other words, the legal standard is no longer consultation, it is consent — free, prior and informed consent. Even Prime Minister Justin Trudeau was elected on the promise that free, prior and informed consent means that Indigenous peoples get to veto projects like pipeline on their lands. That is the law. In fact, the whole concept of Aboriginal title in law is based on the idea of exclusive use and occupation, which inherently includes the right to say no to others wanting to use your lands. The two legal concepts go hand in hand.

Just before the pandemic hit, the United Nations Committee on the Elimination of Racial Discrimination (UNCERD) called on Canada to immediately suspend work on the Coastal GasLink pipeline, as well as the Trans Mountain pipeline and the Site C dam until they had the free, prior and informed consent of the impacted Indigenous peoples. There is no question at the international level that Indigenous consent is required before states can develop their lands. Canada claims it supports UNDRIP and the province of B.C. has adopted legislation requiring that its laws be brought into compliance with UNDRIP. This is the law, yet the RCMP still removed Wet’suwet’en peoples from their lands and have permitted Coastal GasLink employees to continue work on the pipeline despite the pandemic.

This is not the only place that the rule of law and native rights have faltered under the cover of COVID-19. Literally in the middle of the pandemic, and after laying off thousands of educators, Alberta Premier Jason Kenney announces he will invest a total of $7.5 billion in resurrecting the Keystone XL pipeline — a shock to most. At a time when oil is trading in the negative, it is hard to believe that a provincial government would take money away from educators to invest in a worthless pipeline. But it gets worse.

Kenney, following U.S. President Trump’s lead, has suspended environmental reporting requirements saying the pandemic would cause undue hardship to the extractive industry. The industry, which already gets millions in subsidies and has failed to clean up its own toxic messes, will not be required to report on their compliance with the Environmental Protection and Enhancement Act, the Water Act and the Public Lands Act. Alberta is not the only province to make this move. Under the guise of the pandemic, Ontario Premier Doug Ford announced that the province has also suspended environmental protection oversight rules. This means that Ontario can push projects forward that would otherwise significantly impact the environment without any consultation or public notice. It is yet to be seen whether any of these legal changes will hold up in court.

What these governments fail to realize is that, pandemic or not, Indigenous peoples have inherent sovereign powers and titles to land and rights that are not only protected in Indigenous laws, but in domestic and international laws as well. Nothing about this pandemic justifies proceeding with extractive projects without Indigenous consent. Nor does the building of a new infrastructure to address capacity during the pandemic mean that Indigenous peoples should not be involved in the decision-making processes. Human rights, which include Indigenous-specific rights, together with environmental protections are even more important during times of crises.

During the last few weeks of self-isolation and travel restrictions, we have seen waters run clear, the smog dissipate and animals reoccupy their habitats. We have the ability to reverse climate change and reverse some of the damage we have done. If we abandon native rights and environmental protections now, we condemn our collective futures at a time when we should be pulling together to protect them even more. The struggle of the Wet’suwet’en and other First Nations against pipelines and other destructive extractive projects is our collective struggle for survival.

If this pandemic has done anything, it has shown us what is truly essential — clean air, drinkable water and food grown from healthy lands. Now is not the time to abandon the laws that protect those essentials.

Dr. Pamela Palmater is a Mi’kmaw citizen and member of Eel River Bar First Nation. She has been a practising lawyer for 18 years specializing in Indigenous and human rights law and currently holds the position of associate professor and chair in Indigenous governance at Ryerson University. She maintains her own political blog at www.pampalmater.com.

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