Thursday, August 28, 2014
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First Nations' Remarkable Legal Winning Streak

'Resource Rulers' says industry ignores at its peril wave of 'native empowerment.'

By Shiri Pasternak

TheTyee.ca

When news media pay attention to books about Indigenous people in Canada, they tend to select those that stick to a particular script.

Flanagan, Alacantra and Le Dressay's Beyond the Indian Act, Widdowson and Howard's Disrobing the Aboriginal Industry, and Calvin Helin's Dances with Dependencyall received extensive coverage by the national press upon release.

These books, while different in content, share in common the characterization of Indigenous economies as dependent systems. The solution to achieving self-determination is always conflated with free market access. And while these authors are careful to situate the poverty in First Nations communities within a historical context of land dispossession and legislative discrimination, they are equally careful to avoid analyzing inequalities in systems of free market capitalism.

Now it is Bill Gallagher's self-published book Resource Rulers that is getting all the attention. It is an engaging read that argues the legal winning streak of First Nations in resource conflicts (he counts over 150) should put industry on notice to comply with their expanding obligations to Indigenous peoples. Each chapter in the book surveys a different region or province, highlighting what Gallagher perceives to be the key legal victories of "native empowerment."

Striking a tone of caution to industry regarding native rights, is Resource Rulers thematically apiece with the usual populism described above? A frenzy of recognition initiatives by the B.C. government renders this question particularly pertinent: is this kind of recognition of legal rights the tipping point to a changing landscape of Crown-Industry-Indigenous relations in the province? Or is it just more of the same?

An insider's perspective

Gallagher, a self-described authority on native claims in the resource sector, has worked for industry as a mediator in "defusing" conflict between Indigenous peoples and government in regions and industries across the country. He has an insider background for this work, having practiced corporate law in Calgary and worked as an energy regulator in Ottawa and a treaty negotiator in the Prairie provinces.

Rather than hardening his perspective, however, his experience has given him particular insight into resource conflict negotiations. Unlike other books on Indigenous rights, Gallagher does not restrict himself to the major Supreme Court of Canada cases on Aboriginal title and rights. Instead, he focuses much of his discussion on lower court decisions, injunctions and judicial reviews, and environmental review processes, providing a refreshing take on what is happening on the ground across the country.

For example, in the chapter on the Maritimes, he recounts a fascinating history of the Sable Island pipeline, disrupted by Micmac bands based on a judicial review that was then leveraged in the courts against the National Energy Board for failure to consult the local nation. The court victory, Gallagher points out, was a major business story and demonstrated that government and industry ignored natives to their own peril.

In the B.C. context, Gallagher suggests that the native legal winning streak has compromised the province's ability to implement policy and political settlements. He cites Chief Stewart Phillip's comments following the Tsilhqot'in Nation v. British Columbia, or "William" case after Chief Roger William who brought the legal proceedings, asking: "Why would any First Nation be foolish enough to ratify any [British Columbia Treaty Commission] (treaty) settlement for less than five per cent of their territory when the Xeni Gwet'in has achieved recognition of their aboriginal title to 50 per cent of their territory?"

Gallagher sees the Recognition and Reconciliation Acts introduced by the Gordon Campbell's B.C. government as missed opportunities to gain economic certainty in the province. He believes that failure to secure formal agreements of recognition directly led to the Taseko Prosperity Mine fiasco, where provincial approvals were overturned by a federal environmental regulatory review.

Missing pieces

But if Gallagher is concerned with certainty, there is a lot he leaves off the table that industry need take into account, according to the courts, as well.

He has surprisingly little to say about the proprietary aspects of the landmark 1997 Delgamuukw v. The Queen decision. He interprets it as a ruling on consultation, accommodation, and the honour of the Crown. This is startling given that the Delgamuukw court found that provincially created private property rights did not extinguish underlying Aboriginal title. Though the court offered significant caveats on this point, the ruling made clear that a new regime of liability was at hand.

William went even further when Justice Vickers held that the Forest Act did not provide statutory authority for the province to grant licenses on Aboriginal title land, which unjustifiably infringed Tsilhqot'in jurisdiction over their lands. Ignoring the proprietary aspect of Indigenous sovereignty excludes from analysis the key vulnerability for industry operating on Aboriginal title and treaty lands: an insecure provincial property regime.

The land claims process is also almost completely absent in this analysis. Gallagher's decision to leave out discussion of the land claims process is curious for a number of reasons. The Calder decision in 1973 set an important legal precedent on title in B.C., launching the only process in Canada for First Nations to submit grievances to reclaim lost and unceded lands. The economic uncertainty generated by the land claims process has been documented in a number of critical studies. A recent survey found one in five companies responded that unresolved First Nations land claims in B.C. have reduced their investment in the province over the last five years. Is Gallagher ambivalent? Opposed? Does he believe it goes too far or not far enough?

This ellipse in his work leads to some distorted characterizations and erroneously attributed sources of native empowerment in Canada. Though he does mention conflicts between the Crown and First Nations at Oka, Ipperwash, Gustafsen Lake, and Six Nations at Caledonia, he completely forgoes mention of the fact that these confrontations escalated into conflict as a result of failed land claims policies. Native empowerment is as much about challenging deeply flawed policies that further subjugate and dispossess Indigenous peoples today as it is about a legal winning streak.

'Citizens Plus' what?

The book is also full of other idiosyncrasies. For example, Quebec is largely painted as the "good guy" amongst provinces. But one has only to look at Quebec's conduct towards the Algonquins of Barriere Lake over the past 25 years and a different story materializes: one of dishonoured agreements, denial of Aboriginal rights, and a willingness to send in the police if Indigenous demands for these rights become too insistent.

Tellingly, Gallagher frames the book as an extension of Bill Cairns' 'Citizens Plus' concept to describe Indigenous peoples' constitutional standing within a post-1982 Constitutional order. As Shin Imai points out, however, the additional rights ("plus") that Cairns advocates should accrue to Aboriginal people are vaguely defined entitlements that do not address the material questions unfolding daily regarding the balance between national and Aboriginal interest.

These questions are being worked out in a number of forums, and law plays only one part in the "native empowerment" movement. Court cases are costly and time-consuming, and their results -- even when positive -- do not necessarily affect entrenched policy. Many have taken to the streets, as the recent Idle No More movement showcased, in order to assert jurisdiction over their traditional territories. And as demonstrated in Elsipogtog this past fall, though the band lost its bid at injunctive relief to stop fracking on their lands, it was direct action and blockades that finally evicted SWN Resources.

But what Resource Rulers does compellingly show is that legal precedents are causing considerable uncertainty in the business community. An article I recently co-wrote brought to light confidential government documents that reveal how the state perceives these legal precedents as a high-level risk to resource extraction in this country. The key problem with Gallagher's text is that the source of this uncertainty is mistakenly attributed to the judicial landscape alone. The exercise of underlying, inherent Indigenous law and title are the driving force motivating disruptions to business-as-usual in this country. The courts have belatedly come to acknowledge this, adding an air of credibility to Indigenous legal orders that were not obliterated by Canada's assertion of sovereignty over these lands.

Other means

What have been dismissed as "civil disobedience," "native unrest," "direct action," or violent blockades by Indigenous peoples have been misnamed and mislabeled for too long. These are assertions of Indigenous legal and political orders that have never extinguished authority, no matter if treatied, unceded or otherwise. That is a risk that cannot be easily mitigated.

Despite these reservations, Resource Rulers is not the typical book about Indigenous peoples that gets covered by the national press. It signals a turning point in national consciousness about the risk of Canada's unresolved colonial history. This history is of course not past at all. It haunts the present. And thus Resource Rulers can be read alongside Douglas Bland's cautionary fictional account of this risk of Indigenous insurgency in his novel called Uprising. These books, written by the establishment class, signal a move past the ineffectual status quo of assimilation narratives of modernization towards a more desperate expression of concern for Indigenous resistance to colonization.  

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