Do We Need the « Rule of Law » in New Brunswick to Deal with Native Protestors?

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Elsipogtog First Nation is only the most recent in a long line of examples of Aboriginal communities protesting resource development on their lands without their consent, and police force being used to ‘take down’ Aboriginal protest sites.  This is not a “new” story – it has happened before. In some cases, like Oka and Ipperwash, it led to full blown public inquiries to get to the roots of why the Aboriginal protests occurred in the first place, why violence escalated, what could have been done to reduce violence, and how to avoid future conflicts.

You would think that after the Report of the Royal Commission on Aboriginal Peoples and the Ipperwash Inquiry Report, we would have learned a lesson or two about helpful and unhelpful ways to deal with these types of conflicts over resources, including appropriate police responses. But watching reactions to Elsipogtog, we at OKT have a strong sense of history repeating itself.

When conflicts arise about Aboriginal people protesting resource development, you often hear people talk about the “rule of law”; it has come up regularly in media reports and commentary during the current occupation and protests involving the people of Elsipogtog. The concept refers to the idea that power needs to be applied uniformly and not arbitrarily. Some people invoke this term to suggest that the Canadian authorities are not applying the rule of law to Aboriginal protesters in the same manner that they would apply them to non-Aboriginal protesters in similar circumstances.

This argument is often raised by people who support “cracking down on” or quashing (possibly through violence) protests in the same manner that the RCMP raided the occupation at Elsipogtog. This refrain has been repeated many times over the past decades, in response to Aboriginal protests in Canada such as Burnt Church, Kanesatake (Oka), Ipperwash, and Caledonia. It is a simplistic and emotional response to highly complex situations which often have deep roots in historical conflicts. It also  misrepresents the “rule of law” by suggesting that it means applying the law strictly under all circumstances regardless of context. This could not be further from the truth. Indeed, courts and other authorities have repeatedly endorsed a contextual approach to Aboriginal occupations and protests.

The Ontario Court of Appeal in Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council et. al. regarding charges for contempt of court for violation of an injunction spoke of the complex nature of the rule of law in the context of Aboriginal protest and occupation:

“… the rule of law has many dimensions, or in the words of the Supreme Court of Canada is ‘highly textured’… The rule of law requires a justice system that can ensure orders of the court are enforced and the process of the court is respected. Other dimensions of the rule of law, however, have a significant role in this dispute. These other dimensions include respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, respect for the separation of the executive, legislative and judicial branches of government and respect for Crown property rights.”

Picking up on this language two years later, the Ontario Court of Appeal in Frontenac Ventures Corporation v. Ardoch Algonquin First Nation endorsed its holding in Henco that enforcing the rule of law involves a complex balancing. It said that this balancing should be performed before an injunction is ordered in an Aboriginal protest and it emphasized the importance of negotiation in this balancing.

In other words, the rule of law is not just about issuing and strictly enforcing court orders. Upholding the rule of law involves looking at each matter contextually through the lens of the long history of relations between Aboriginal and non-Aboriginal people in Canada. An excellent synopsis of this history and context is provided in the report of the Royal Commission on Aboriginal Peoples, a commission that was created in the wake of the Kanesatake (Oka) standoff. You can read the highlights of that report here.

A very helpful resource for better understanding the rule of law in the context of Aboriginal occupation/protest is the report of the Ipperwash Inquiry. The Ipperwash Inquiry was headed by the Hon. Justice Sidney B. Linden, a judge of the Ontario Court of Justice and was formed by the Government of Ontario in the aftermath of the shooting of Dudley George during the protest at Ipperwash Provincial Park. Part of the purpose of the inquiry was to consider how violence could be avoided in similar circumstances. The report that emerged from the Ipperwash Inquiry is invaluable to understanding these conflicts and the appropriate police response to them.

If you want to understand what is happening at Elsipogtog, and recommended ways to deal with a conflict like this, we highly recommend reading the Ipperwash Inquiry report, as there are many parallels and many of the final recommendations are relevant.

Here are some highlights from the Ipperwash Inquiry report that provide important context on the current events at Elsipogtog:

• Aboriginal occupations and protests are a symptom of our collective inability to fairly resolve centuries-old tensions and conflicts between Aboriginal and non-Aboriginal communities over the control, use, and ownership of land. Until we “design institutions or implement processes that can resolve these tensions more effectively”, protests and occupations are very likely to continue
• Aboriginal occupations differ from other kinds of protest and occupation in part because of the long history of mistrust between the police and Aboriginal people – “Police strategy must emphasize the development of communication networks and trusting relationships with Aboriginal people before, during, and after protests”
• The role of the police is limited to maintaining public order. It is not the role of police to resolve the underlying issue, that is the role of government and government should not duck it – “(G)overnments should not avoid their constitutional obligations to First Nations and Aboriginal people under the cloak of keeping out of police ‘operational matters’”
• Occupations and protests over land and resources are not new: Historically both non-Aboriginal and Aboriginal communities have used occupations and protests to secure lands and resources from one another, however, non-Aboriginal people have secured much more land and resources this way than Aboriginal people have
• Studies have shown that, despite commonly held misconceptions, Aboriginal occupations and protests over the past 50 years have been notable for their low levels of violence

It is this context that informs the “rule of law” as it pertains to Aboriginal occupation and protest. Respecting the rule of law is about more than simply charging and arresting people according to the strict letter of the written law. A nuanced and contextual approach is required. An approach that recognizes the underlying history of these protests is needed. An approach that addresses the need of governments to uphold the rule of law by meeting their legal obligations to respect Aboriginal rights is needed.

An extremely important part of the legal context at Elsipogtog is that the protests are occurring on land (and are about land) that the people of Elsipogtog never ceded title to. Aboriginal people in this part of Canada signed Peace and Friendship Treaties with the British in which they never ceded any territory. Canadian law recognizes that the occupation of land by an Aboriginal community at the time of the arrival of Crown sovereignty means that the Aboriginal community owns that land. So, the rule of law in this case would arguably dictate that the protesters have every right to be on their traditional land and that in fact, others, including the Crown and resource extraction companies, are trespassers.

In cases like Elsipogtog, injunction orders and police enforcement cannot and should not exist in a vacuum, separated from the extremely complex historical, cultural, and legal nuances of the situation. If such a simplistic approach is taken to Aboriginal protests, as some in the media would encourage, trust and the potential for negotiation and reconciliation is greatly reduced and the potential for violence and continued protest greatly increases. Those results are not consistent with upholding the rule of law. And they will not bring peace to the land …

By Michael McClurg