Canada and the Criminalization of Indigenous Rights

Thursday, 23 October 2008

As you have probably heard me mention on more than a few occasions now, in 2007 the United Nations passed a document known as the Declaration on the Rights of Indigenous Peoples. Of the states of the world, only the United States, Canada, Australia and New Zealand voted against the non-binding resolution. Not all that surprising given that all four states are historically colonial-settler states that were established by white European colonists on Indigenous land. All four are also currently involved in long-standing disputes with the Indigenous peoples over land and sovereignty.

In all four of these states, including Canada, the history is one of colonial states that were built on the theft and occupation of Indigenous lands and the extermination of the peoples populating them, by disease, warfare and cultural domination. To this day the Canadian state continues to benefit from its unjustly acquired assets. In order to defend itself and its unjust state oppression, the Canadian government has equipped with an ultra-security state apparatus. Canada has more often than not used these repressive and suppressive anti-terrorist and security measures to strike hardest, and most often, against those people who the most to gain by assaulting Canada's ingrained injustice and state terror, namely aboriginal nations and their legitimate struggle for their ancestral lands, and for their dignity.

Though the Canadian state has been essentially at war with the Indigenous peoples of the land since the first colonists arrived, the Oka Rebellion of 1990 reignited much of the militancy of the Indian movement that had been lost in the wake of the collapse of the Red Power movement in the 1960s and 1970s. When the Mohawks of Quebec stood with arms against further encroachment onto their sacred and ancestral lands (to build a golf-course of all things) it fulfilled the saying by Mao that "a single spark can start a prairie fire" as it ignited an upswing in radial militancy by the Indian nations of Canada. This can be seen in the recent cases of Indigenous protests in Ontario in opposition to state authorized resource extraction on Indian lands. The Indians of the Kitchenuhmaykoosib Inninuwug First Nation, despite having legitimate demands for sovereignty and decision-making power over their own traditional lands, their warriors and protesters have seen incarceration by the state, most notably Robert Lovelace and the KI-6 , all of whom have received harsh fines and 6 months in jail for peacefully protesting against mineral exploration on the lands of KI and Ardoch Algonquin First Nation (AAFN). We also cannot forget the ongoing Caledonia land dispute that is happening in Southwest Ontario (about an hour from Waterloo, where I am located) between the Indians of the Six Nations Haudenosaunee Confederacy and the developers of the Douglas Creek Estates, which is part of a larger land dispute over the entire Grand River Valley.

Out in Western Canada, the province of British Columbia was one that was settled and colonized by Euro-Canadians without (the hassle of) treaties between the Indigenous inhabitants who already present and settlers. The result has been that B.C. has been transformed into a hotbed of Indigenous militancy because large swaths of the province remain unceded, and many of the indigenous peoples have never surrendered their claim of sovereignty over these lands. Many in the wider Canadian population, many of whom are opponents of Indian militancy, point out that there have recently been a number of "modern-day treaties" signed for the land involved in the Olympics between the Federal Government the Indian Act band councils, however it should be remembered that the band councils were imposed by the government as a means to control and assimilate Native peoples. They lack popular support and only exist because of government funding. In the southern interior of the province, the Secwepemc people have been involved in a long standing struggle with the Sun Peaks mega ski resort northeast of Kamloops. Back in 2004, in the months of August and September, some 200 Indians and their supporters rallied against the expansion of the ski resort. The result was that the B.C. Supreme Court granted Sun Peaks a court injunction that excluded the Indian people from using 846 hectares of their own traditional territory, and on September 21st that year, the Royal Canadian Mounted Police went in and dismantled their camp, arresting three Indigenous protesters. This is just one example of many of the continued denial of Indian sovereignty by the colonial-settler state. It is an injustice and a violation of the United Nations Declaration on Rights of Indigenous Peoples, however, many attempts by First Nations peoples to redress the injustices committed against them by the state have been met with state, police, and at times military repression (as was the case in Oka).

On the territory of the Tyendinaga Mohawks we have witnessed a sweeping crack down their community members in an attempt to retard and deflect attempts by the community to establish a real resistance to the further development of the Culbertson Tract, a long standing land claim of the Tyendinaga Mohawks. In order to shut down all resistance within the Mohawk nation to development of their traditional lands, the Federal Government of Canada has dumped millions of tax payer dollars into police actions, and the RCMP have stated government intentions to "fight contraband in three Mohawk communities (including Tyendinaga), which he [Stockwell Day] said is funding organized crime and possibly even terrorists." The charge of "terrorism" has a history of being used to justify extreme violations of human rights by both settler governments in Canada and the U.S. against racially profiled communities they deem threats to the security of the colonial, capitalist, white supremacist, patriarchal state. The allegation that Mohawks are harbouring, or are themselves, terrorists is a dangerous and racist one, but it is not a new tactic by the government in Ottawa, as it was used against the Mohawk Warrior Society following their heroic stand against the Canadian state at Oka.

Heading back out west to B.C., across all of Northern Turtle Island (Canada) the upcoming Vancouver 2010 Winter Olympics has come to be seen by many in Indian country as a real and serious threat to our people and our lands, not just British Colombia, but in the whole of Canada. Indigenous resistance to Olympic Olympic related development on unceded Coast Salish and other lands has been criminalized by the settler governments in both Victoria and Ottawa, as a protective measure in order to ensure prospective Olympic tourists and investors that they, and their investments, will be safe. A notorious example of this was the punishment of Indian Warrior Harriet Nahanee, a Pedachat elder that found herself sentenced to provincial jail for contempt of court for playing a part in the Sea-to-Sky highway expansion protest at Eagleridge bluffs. Later she passed away as a result of pneumonia and resulting complications at St. Paul's Hospital in Vancouver on Feb. 24th, one month after her sentence. It is suspected by many in Indian country that Nahanee's condition became worsened during her incarceration at the Surrey Pre-Trial centre. However, as can and should be expected, Solicitor-General John Les denied any government responsibility in her death and has refused requests from the community for an inquiry.

There have been some victories as of this date though, with the July, 2008, decision of the Ontario Court of Appeal to rule on the side of the KI and AAFN Indians, which means the upholding their right to be involved in consultation with regards to any and all development that is set to take place on their ancestral land. However, as with many gestures by the colonial-settler state towards Northern Turtle Island's indigenous people, this ruling, which does have relevance to the struggles mentioned above as it is a clear statement that private parties must not seek court injunctions as a first response to the actions of First Nations, despite its appearance of being a victory KI and AAFN, may remain a hallow one as it still remains for the colonial government to interpret the court's ruling.

Democracy! Liberty! Justice! Rowland Keshena ***** July, 2008, decision of the Ontario Court of Appeal re KI and AAFN, and the Duty of the Crown to consult before development: http://www.ontariocourts.on.ca/decisions/2008/july/2008ONCA0534.pdf [48] Where a requested injunction is intended to create “a protest-free zone” for contentious private activity that affects asserted aboriginal or treaty rights, the court must be very careful to ensure that, in the context of the dispute before it, the Crown has fully and faithfully discharged its duty to consult with the affected First Nations: see Julia E. Lawn, “The John Doe Injunction in Mass Protest Cases” (1998) 56 U.T. Fac. L. Rev. 101. The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532.