Whose law is it anyway? Part 2: Testing the limits of Canadian sovereignty

TVO.org speaks with law professor Dwight Newman about how colonialism has suppressed Indigenous law — and why progress means having tough conversations
By Matt Gurney - Published on Feb 20, 2020
Demonstrators gather outside Queen’s Park on February 17 in support of Wet’suwet’en hereditary chiefs. (Tijana Martin/CP)

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This is the second instalment in a five-part series looking at Wetʼsuwetʼen and the law. You can read Part 1 here; read Part 3 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: Dwight Newman, a law professor and Canada Research Chair in Indigenous Rights in Constitutional and International Law at the University of Saskatchewan.

Matt Gurney: Dwight, just before we get into it, I should acknowledge that, though we haven’t met personally, we both serve as directors for Advocates for the Rule of Law, a non-partisan think-tank and registered charity. Just wanted that on the record. With that out of the way, I wanted to ask you some questions about the notion of Indigenous law. Yesterday, I interviewed Professor Signa Daum Shanks, and she laid out some of the basics of Indigenous law for us.

Dwight Newman: Yes, I read that. It was very interesting. She drew a vital distinction between Aboriginal law, which is the accumulated framework and jurisprudence of Canadian law involving Indigenous people, and Indigenous law, which is a huge and broad concept we’ll get into. But they’re separate. In the present day, some people, out of politeness, prefer to avoid the term “Aboriginal.” So they’ll say Indigenous law when they mean Aboriginal law. And that can confuse things. So I’m glad she made that distinction.

Gurney: That’s great. Duly noted. Before we jump into the meat of this, what’s your take on the concept of Indigenous law?

Newman: Similar to hers — maybe only differences of nuance and emphasis. Indigenous law is essentially the law of Indigenous communities or nations or peoples themselves. It’s very broad: the exact details of it can vary and will vary between different communities. Canada is a very big place, and the cultures of different Indigenous communities historically were very distinct. So the concept of historical or traditional Indigenous law can have meaningful differences across time and place. Indigenous law sometimes is now used to refer to the law of Indigenous communities adopted under modern legal frameworks. Often, people are referring to the more traditional Indigenous law that’s often unwritten and customary within a community. But the term is used basically in this broad sense of the law of Indigenous communities or Indigenous nations or Indigenous peoples.

Gurney: We’re obviously chatting today because of what’s happening out west and how that’s now having an impact across the country. But let’s start on a positive note: Now that we know what Indigenous law is, what’s an example of its working well in Canada?

Newman: It works in situations where there is clarity and where the framework has been sorted out. Within the modern treaty system, there are lengthy agreements between Indigenous communities and provincial and federal governments where jurisdictional issues have been hammered out and it’s recognized what law will be supreme in given situations. And there’s also a negotiating framework for addressing situations that are novel or unclear. These rules are often included in the treaties themselves, and they can bring a great deal of clarity — where they’ve been achieved. That’s what you desire: the rules are clear for everyone, and there are pathways out of the problems and challenges that can and do arise. That’s good for those trying to have dealings with the community, but also for those within the community.

Gurney: Let me reverse the question: Where is this working badly?

Newman: [laughs] Well, the situations we’re seeing now are because things are not working well. There’s ongoing division on some issues that bear fundamentally on who’s making decisions or on who represents the community. This is greatly challenging. But another challenging situation arises when colonialism has been successful over time at suppressing the local concepts of Indigenous law, to the point where it may not be operating locally. People from the community may be asserting Indigenous law on certain questions, and the community isn’t set up to deal with them. There’s a very active case in Ontario right now that illustrates this — Beaver v. Hill. It’s a family-law case involving division of property and spousal support after the breakdown of a relationship. The woman involved has made her claims under Ontario law. The man is asserting that those issues should be determined under the Indigenous law in the community where he’s from, not under Ontario family law. His community’s Indigenous legal system isn’t fully operational yet, particularly on family-law issues. So this could, at least on the appearances of the case so far, effectively exempt him from his responsibilities under Ontario family law. That’s going through the courts right now — and is an example of a very problematic situation under Indigenous law.

I emphasize that this is the case because of the effects of colonialism, but we have to deal with things as they are now and find practical ways forward. Any situation where there is a legal gap is very problematic.

Gurney: How often do we run into a situation where there are competing claims for who can speak for a community or what law will apply? Is there a framework for resolving those issues?

Newman: Particularly in British Columbia, there are a number of communities where there are divisions around elected leadership and hereditary leadership. “Hereditary” may not always be hereditary in the same sense that that term might be commonly understood, but it is a traditional leadership. And in the context of a number of British Columbia communities, you’ve got that kind of division. These issues have really not been litigated very much. And that’s part of the problem. There was a case that concerned the same kind of division that we’re seeing now, at least in general terms, that was going to be litigated in the context of the Northern Gateway pipeline, but once that project was cancelled, there was no need to proceed with the case. The honest answer is that Canadian courts haven’t really engaged with this at all.

Gurney: When these issues do arise, who’s the final word? The final arbiter, perhaps very literally? How can we finally get resolution on these issues? Are we going to run into scenarios where there simply isn’t a recognized authority that can effectively adjudicate these matters?

Newman: It may prove that not everyone is willing to recognize the same authority. That is a challenge. Canadian law would recognize the Supreme Court of Canada as the ultimate authority. Canadian law would see an important role for the community itself to define aspects of who represents it, but, at the same time, Canadian law would say there needs to be a decision made within Canadian law. The ideal would be a community itself coming to a resolution that was compatible with Canadian law, that could be recognized. But getting to that point isn’t straightforward. There’s a role for government here — the federal government, particularly. The Indian Act set up band councils as recognized authorities, as far as Canadian federal law is concerned. Amendments could be pursued to the Indian Act around those issues, or decisions made in this context using Canadian statutes, that could have some effect. The federal government, in its last term, was talking about some ways of doing that. But those plans were abandoned in the face of political controversy. Getting to outcomes everyone can agree on is challenging.

Gurney: I want to be very clear when I ask this question that I’m asking a hypothetical. I’m not trying to sucker you into saying something contentious about the current dispute involving the Wet’suwet’en. But, under Canadian law, what would happen if a band, or a nation, or a coalition of them, just basically … tapped out? Said that they were sovereign, and that was that. “Sorry, guys — we’ve never consented to being Canadian, and we’re not. Get lost.” Again, I stress that that’s a hypothetical, but what are the limits of Canadian law and sovereignty? I’m not even suggesting violence. No one needs to shell Fort Sumter here. But imagine a very polite secession, a refusal to play ball as part of the Canadian federation, an outright refusal to recognize Canadian authority. What do we do?

Newman: It would depend a lot on the exact circumstances. In this kind of situation, even if Canadian law were being ignored or rejected, there’s still international law. International law would not readily recognize that kind of effective unilateral secession, including, even particularly, in the context of Indigenous peoples. There was a lot of concern about this sort of scenario during the negotiation of the United Nations Declaration of the Rights of Indigenous Peoples, and there’s a lot of emphasis there on the territorial integrity of states as a value to be respected. It doesn’t set things up for outright secessions. That said, in that scenario, Canadian law would engage. The Supreme Court would have to decide whether the declaration, if any, triggered some kind of duty to negotiate, analogous to what’s discussed in the Quebec-secession reference. There would be complicated questions under Canadian law, but also the practical side — what does the government do? A lot of the things under discussion right now are similar. The best practical and strategic approach may not always line up exactly with the exact legal rights as they’re defined in theory. Responding to a protest under the law needs to depend on the circumstances so that enforcement actions make things better rather than worse. It’s very difficult to respond when there is outright defiance of Canadian law. It really depends on what laws are being defied, and how.

Gurney: A related question: Is there an obligation on the Supreme Court, or any court, or the federal parliament or provincial legislatures, to consider the preservation and recognition of Canadian sovereignty as sacrosanct? Or is anything negotiable?

Newman: [laughs] Wow. That’s an interesting and challenging question. I guess that’s why you asked it. There are some obligations, though, that said, the Quebec-secession reference has introduced complications — some things might be up for negotiation. But not in simple ways, and in ways that respect Canadian sovereignty. The issue is this: Canadian institutions derive their power from the Canadian state, so they have to remain committed to Canadian sovereignty and law. And the Parliament of Canada — parliamentarians commit to work on behalf of Canada. It’s a strange phenomenon to imagine parliamentarians not doing that. But that, too, is complicated. There have been MPs elected who were openly advocating for Quebec’s independence.

Gurney: One more related question. The hypotheticals above were all based around the idea of a band or a nation or a group of them declaring that they were out. A large group of people on a recognizable bit of territory. What about just … people? With protests all over the country, what happens if someone is arrested and simply says they don’t recognize the authority of Canadian law or police? This doesn’t even have to be an Indigenous person. A non-Indigenous person, for instance, arrested on Indigenous land while protesting Canadian policies, could claim that they were arrested outside of Canadian jurisdiction by armed Canadian invaders. I’m sure, in fact, that this or something like this has happened before.

Newman: The law applies in those situations. Individuals can’t simply declare the non-application of Canadian law. An Indigenous person, on Indigenous territory, might have the ability to assert certain rights, or the nation could, on their behalf, offer a legal defence. That might be something the courts could engage with. But if it’s simply a rogue individual asserting that Canadian law doesn’t apply to them, the courts don’t have much time for that. The Canadian law would be applied, and any individuals who try to simply declare that the law doesn’t apply to them will have some time to reflect on their notion of sovereignty while sitting in jail.

Gurney: We’re talking above about pretty grim stuff — secession, criminal matters, and so on. Let’s talk about more mundane things. Contracts, employment agreements, real-estate transactions, stuff like that. Again, what’s an example of Indigenous law working well in that context?

Newman: I don’t want to overstate how effective they are, but there are many hundreds of industry agreements that are working reasonably well in Canada today. Some of those recognize Indigenous law to some degree — as part of what the Indigenous community sought to have recognized within it. And they have joint committees working on certain issues under the agreements. There are also numerous examples of Indigenous industry agreements that are often called impact benefit agreements that have been negotiated throughout Canada. They are often much easier to negotiate in the context of one or a small number of particular communities. These communities then typically see all the benefits under the agreement. And there’s just a smaller number of communities with which to negotiate. Those can often be very successful for everyone. It’s more challenging with so-called linear infrastructure — a pipeline that crosses territory, incurs costs and risks, but delivers the benefit elsewhere. And those often cross numerous territories, meaning numerous negotiating partners.

But that being said, there are many hundreds of successful agreements. It’s almost an untold story in Canada now — how much economic prosperity is being experienced by Indigenous communities who wouldn’t have imagined it was possible a short time ago. Canadians don’t see this or appreciate it.

Gurney: And when these agreements take effect, they exist under Canadian law, or provincial law, or Indigenous law?

Newman: It can depend — and be built right into the agreement. The parties can agree to that. This happens a lot, even at the international level. Two companies, for instance, may agree to have their contract governed by British law, even if neither is resident in Britain. Or under American law. And so on. So in these industry agreements, the parties can agree among themselves what legal framework will apply. Companies looking to invest and operate just need legal certainty. The agreements can provide that.

Gurney: What’s the best way forward here? Not just with the Wet’suwet’en situation, but for all of us?

Newman: Ottawa should build a time machine and go back a few decades and reach more modern treaties where the exact jurisdictional terms are spelled out and provide the kind of clarity that really is needed. I kid, of course — but more engaged Canadian governments decades ago would have made a huge difference today. Clarity is helpful for Canada, but it’s also helpful for Indigenous communities themselves. Not every community wants to engage in economic development in the same way. But those that do want to partner with industry actually want to be able to provide clarity to industry on different issues. And something like a modern treaty framework provides a lot of jurisdictional clarity in terms of the things that it says. Many of the historic treaties do some of that, and can work, but not all of them remain acceptable today.

Gurney: My last question, then: What’s next? What’s the way forward?

Newman: That’s a big question. I think the imperative is trying to work together in various ways to get greater clarity on the rules that we’re all going to live by. And that’s not a simple task because there are some fundamental disagreements. And they don’t even all involve the Indigenous issues directly there. Some of them go beyond Indigenous issues into other policy areas. But in terms of dealing with the Indigenous rights issues, I think the government can be taking more steps to reach resolution of long-standing claims that have been unresolved. That’s a positive way forward. It’s not something that can be done quickly; that’s the trouble. There has been a pattern of inaction with many governments, and many promises made that cannot be kept.

Gurney: Is that a comment on the overall history between the federal government and Indigenous people, or one specifically about the current prime minister?

Newman: Both. A lot of governments have failed to make necessary progress and to live up to promises. And the current prime minister, even before he was elected in 2015, made a lot of promises to Indigenous people and then abandoned them. Or they were never workable in the first place. I’m on the record as saying we need to have tough, honest conversations about what is achievable and practical. That applies to past prime ministers and it very much applies to the current one. We need to be clear and realistic and honest with one another. That’s where all progress can start.

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

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