Whose law is it anyway? Part 1: Wetʼsuwetʼen and Indigenous rights

TVO.org speaks with law professor Signa Daum Shanks about different views of leadership, keeping promises — and why colonialism doesn’t want Indigenous people to disagree with one another
By Matt Gurney - Published on Feb 19, 2020
Protesters march through the streets of Vancouver in support of Wet'suwet'en Nation hereditary chiefs on February 18. (Darryl Dyck/CP)

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This is the first instalment in a five-part series looking at Wetʼsuwetʼen and the law. Read Part 2 here.

On February 6, RCMP units moved to arrest protesters in British Columbia on the traditional land of the Wetʼsuwetʼen people, where protesters were blocking construction of the court-approved Coastal GasLink pipeline. The RCMP raid was authorized by a court. But whose court? As the controversy continues and solidarity protests pop up elsewhere in Canada, there is increasing talk of Indigenous law. TVO.org is interviewing five experts about what that is and what it means for Wetʼsuwetʼen. Today: Signa Daum Shanks, a Métis academic from Saskatchewan and a professor at Osgoode Hall Law School.

Matt Gurney: I want to start by telling all the readers something I told you when I reached out for the interview. I came across your name when doing my homework on this and found an article from a few years ago in which you drew a distinction between Indigenous law and Aboriginal law. Can we start there? How are they distinct?

Daum Shanks: Sure. Aboriginal law pertains to rights under the Constitution. Think of Section 35 — that’s used when Indigenous parties go to court and say that something is unconstitutional. There’s a whole body of law around that — Aboriginal law. “Aborginal” was the word the Constitution used in 1982. That was probably a step up in 1982, but it wasn’t a term Indigenous people used at the time. It’s a word that, as time has gone by, is seen more and more as non-Indigenous. So when people refer to Indigenous law — and this is my interpretation of their meaning, of course — they mean a set of laws governing a set of peoples, and those rules and laws are used in certain Indigenous spaces. The Indigenous concept of law is fairly similar to what “law” would mean to any other party. They are rules with consequences if they aren’t adhered to. But these ones are invented by Indigenous peoples, implemented by Indigenous peoples, and I’ve never met an Indigenous person who doesn’t think that those laws have always existed and exist right now. When people who are unfamiliar with it wonder where they came from — were these laws just suddenly invented? — that sometimes sounds like a political tool to stop some functions of Aboriginal law. But from what I’ve observed, the Indigenous parties are saying, no, these laws existed before newcomers came to Canada, they continue to exist, and Indigenous peoples have an obligation to reinforce them. And Indigenous peoples have found examples of where the newcomers agreed to be bound by Indigenous law.

Gurney: Has there been consistency in their use? I know this is complicated, because the answer will vary by time and place, but has Indigenous law been used consistently — and it’s only now that the broader Canadian society becoming more aware of it — or is it something that’s being reclaimed and brought back into use?

Daum Shanks: Well, first of all, yes. Thank you. You’re right: it will absolutely vary by time and place. I’m going to get nerdy here. I have a PhD in history, too!

Gurney: I’m wearing my NASA shirt. This is a no-judgment zone for nerds.

Daum Shanks: Ha! Well, to answer your question: one of the hammers of colonialism was the Indian Act. Depending on how intensely the act was implemented in an area, that could really challenge how the Indigenous laws were continued. Sometimes, for example, you can see enduring Indigenous laws in spaces without historic treaties. In areas where Canada was still contemplating how to enact Crown law and colonial law, the Indian Act wasn’t enforced as steadfastly. A lot of these moments, talking about Indigenous laws, comes out of British Columbia for this reason. So when these questions come up, I always wonder first, are there treaties? If there aren’t, the history of keeping Canada out of the traditional Indigenous laws is very different than say, in the Prairies. Also, if Indigenous nations have a much longer relationship with the Crown — starting in the earliest times [of contact], before there was any sense that something called Canada would be taking over the responsibility of these areas, those nations have also been more adamant about Indigenous laws and their own unique ways. The Tyendinaga Mohawk and the Six Nations Confederacy have generations — centuries, actually — of experience challenging the Crown, and asserting, no, we never surrendered. But looking at colonialism, and how well it succeeded in places, helps to understand how strong and public local Indigenous law will be. There are many B.C. nations that, for years, have been very public about this. Reserves and government officials pointing to treaties are not part of their past experience. It’s not a surprise to me that the B.C. nations have been leaders on Indigenous law.

Gurney: I’ve interviewed a Canadian lawyer, an expert in constitutional law, who noted that the idea of different legal systems operating all inside the Canadian federation isn’t new. From the outset, the French civil law in Quebec has operated alongside the English common law, and there were understood ways in which they would and could interact with each other.

Daum Shanks: I differ on that view a bit. I don’t think that the common law and the civil law and Indigenous law work as a great example. We can see in our history times when the three systems all existed and were braided together. But one was dominant. People shouldn’t get nervous about Indigenous law. The principles are not that different from Canadian law. People are nervous about this system that’s not theirs. But you can see real similarities. But consider that a theme of Indigenous law is taking care of the space you’re located.

Gurney: Yeah. I was going to ask about that. I’m a Canadian citizen. But if I cross into New York State to go shopping, or something, and I mug a guy, I’m subject to the laws of New York. So there are jurisdictional aspects.

Daum Shanks: Not just jurisdictional in terms of geography. There are also entire parts of the law where Indigenous law has input. Ten years ago, we might have said, these are environmental-law matters. Today, we’d say it’s about sustainable development, conservation, or even a very strong version of municipal law or interprovincial law. On certain issues, including on duty to consult and accommodate, the Supreme Court believes that the Indigenous parties deserve interaction with the Canadian legal system. The Indigenous laws are recognized — no matter if the case comes from Quebec, Ontario, or B.C. The Indigenous parties may explain it differently, but it has a lot in common with someone who’d argue in any Canadian court about developing land without polluting, or building sustainable communities. But, yes, there’s also the issue of criminal law, with issues of trespass and harm. There always have been ways of dealing with those issues in Indigenous circles. The rules won’t necessarily be that incredibly different. But how they’re implemented has been an issue. Communities need to be fully knowledgeable about how they’ll function and think through the consequences. There can be differences in the systems, and that’s talked about in courts. This comes up particularly in sentencing, and Indigenous parties, if they’re given recognition to participate in trial, they’ll say, this form of sentencing will work for this individual or community. And a lot of what’s proposed would be incredibly logical for non-Indigenous people, if they learned more. A community circle recommending banishment can be worse than prison for someone who’s grown up and lived in only one place.

Gurney: We’re talking about jurisdictional issues and criminal issues. I don’t want to get too focused on all the details of the current dispute in B.C. and how that’s now being felt elsewhere, but, in general terms, what about just basic contractual law? For services? Disputes between vendors and clients. In B.C., Coastal Gas believes it has approval from local communities. I don’t want to get too into the weeds on that particular dispute, but how do we find a framework that allows for contracts to be enforced, disputes — and maybe even lawsuits — to be resolved if one party fails in a commercial or legal obligation to another?

Daum Shanks: The contract issue is really interesting. I’m glad you brought that up. Indigenous law is about keeping your promises. The Wetʼsuwetʼen chiefs have a long history, passed down through the generations, of dialoguing with the Crown. They say they have a memory of the Crown promising to keep to its obligations. It’s as simple, and perhaps as complicated, as that. The complications come in with differences inside the Indigenous communities and nations. There are band councils under the Indian Act that the Crown is in contact with on a very regular basis. That’s the artery of dialogue and communication. But within those bands, there are different views of the leadership that sometimes get the mic. The hereditary circles also have knowledge and respect. Both the band councils and the hereditary chiefs know Indigenous law, but they don’t have to agree on what it means! In the Canadian federal system, we have the House of Commons, and we have the Senate. We don’t always expect them to agree. Disagreement and dissension doesn’t mean conflict. The Crown might want to go with the one that speaks for, say, 80 per cent of the community. But disagreement happens in all circles, and we don’t think it’s a meltdown in politicking or lawmaking. Our Senate now barks a lot more than it used to. And you know what? We’ll figure it out.

Gurney: An Israeli friend of mine joked to me once that there are 60 members of the Knesset, and they have 100 views among them. I guess that’s politics everywhere.

Daum Shanks: Right! Exactly. Friction happens everywhere. The idea that Indigenous people aren’t permitted that kind of friction, that they aren’t permitted to disagree — that’s a mark of colonialism to me. Indigenous people are going to disagree. They’re going to argue. It’s a little rich to treat that as chaos. It’s not a moment of constitutional trauma if the premier of Manitoba and the premier of New Brunswick decided to disagree about something. We’d understand that it might take a while to sort out, that they’d have different priorities, and that they’d both assert their position was perfectly legal. We shouldn’t impose a different standard on Indigenous parties. Right now, we have two different opinions over the law and the Wetʼsuwetʼen. Two.

Gurney: That’s not too many.

Daum Shanks: Exactly. And for Indigenous law to evolve, to have some quirks that need to be worked out, to permit the long-standing principles in it to be debated, and to recognize that those laws pertain to groups that existed before newcomers came … that’s what the rule of law is. We can see our thoughts about the rule of law already working in many other places. We need to apply that to Indigenous law, too.

This interview has been condensed and edited for length and clarity.

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