Stop using the ‘rule of law’ as a weapon against Indigenous peoples by Corey Shefman, Feb 19, 2020, The Globe and Mail
Corey Shefman is a lawyer at Olthuis Kleer Townshend LLP, representing Indigenous peoples, persons and organizations
Protests against the RCMP’s attempts to remove Wet’suwet’en traditional leadership from their homeland gained steam this week, with First Nations and allies setting up blockades on railways, bridges and public buildings across Canada.
As the civil disobedience grew and began to affect urban Canadians, many of whom found themselves inconvenienced in this way for the first time, a new refrain began. Politicians and the media demanded that the “rule of law” be enforced. The rule of law, we are told, is threatened by protesters blocking railways and defying injunctions.
At best, these voices treat the rule of law as if it is a neutral, amorphous thing, swooping in like a superhero to “do justice” when the law demands. [Ha ha ha ! Roaring laughter! ]
But law is not neutral. This is never more true than when it affects Indigenous peoples, who Canadian and British law have spent centuries oppressing.
The invocations of the rule of law are not simply innocent pleas to neutrality and lawfulness; they’re self-serving calls to once again disenfranchise Indigenous people so that settlers won’t have to be inconvenienced.
Throughout this history of Canada and British North America, the rule of law has been used by colonial governments to renege on their treaty obligations.
Until 1951, the rule of law prohibited First Nations from hiring lawyers to protect their rights.
Until 1951, the rule of law required First Nations people to get permission from the local “Indian Agent” if they wanted to leave their reserve or get a job.
From the late 1950s until well into the 1980s, the rule of law enabled the federal and provincial governments to steal an estimated 20,000 Indigenous children from their families, sometimes to be sold (yes, sold) to white families in urban centres.
Until 1994, the rule of law mandated that many Indigenous people be sent to residential schools, where many were beaten, abused and had their language and culture stolen from them.
In 1988 and 1995, the rule of law led to police killing J.J. Harper and Dudley George – just two of the countless Indigenous people killed by police in Canada’s history.
In 2018, the rule of law allowed Canada’s youth jails to be filled with nearly 50 per cent Indigenous children, despite Indigenous children only being eight per cent of the population.
Today, the rule of law is being used to justify ignoring the laws of the Wet’suwet’en government and to crack down on protesters across the country expressing their concern with the federal government’s conduct.
Governments of all stripes love to talk about reconciliation and moving forward from the abuses of the past. Few things will get a politician moving faster than a photo opportunity at an event where they’re seen to be providing support to First Nations. But when the time comes to take action and give meaning to the various apologies, reports and commitments, those same politicians seem to be stuck, like a broken record, constantly repeating the same platitudes, while continuing to deploy the same colonial laws in the same colonial ways.
When First Nations try to use the law to benefit themselves and their communities, the Crown pushes back, insisting on holding them to the bare minimum, or outright breaching the rule of law themselves.
When Cindy Blackstock and the First Nations Child and Family Caring Society went through the proper procedures and succeeded in having the Canadian Human Rights Tribunal declare that the federal government had discriminated against First Nations children, the government didn’t respect the ruling; it didn’t honour the rule of law that its own tribunal had laid down.
Indeed, four years and nine non-compliance orders later, the federal government continues to ignore the rule of law and discriminate against First Nation children.
The rule of law is a convenient weapon for governments to use, as they’ve done for more than 150 years, when Indigenous peoples assert their rights and try to hold Canada accountable. Far from a neutral, universal good, it has been turned against the very people it was meant to protect.
Until Canadians and our governments start seeing the rule of law through the lens of colonialism and recognize the lopsided, inequitable and hypocritical ways in which it has been deployed, there will be no justice for Indigenous peoples and no peace for Canadian’s colonial institutions.
Refer also to:
Rule of Law Kaput in Canada? It is in Alberta & BC. David Climenhaga: “Indigenous Canadians have been lied to, betrayed and abused so many times their forbearance and patience with those of us of immigrant stock is truly remarkable.”
Pissing on Reconciliation, Alberta Premier Jason Kenney calls First Nations “Fringe Groups” and spews rule of law while he remains under investigation for breaking it. Law Prof Heidi Matthews: “‘Rule of law’ is a conservative talking point.”
Brilliant damning MUST READ by Joyce Nelson, notably on Environmental Defense Fund’s greenwashing for frac industry and stinky dots between BC Supreme Court Injunction against Wet’suwet’en (hold title on lands where Coastal GasLink, “CGL” and RCMP are trespassing, thanks to the court), mega rich Kohlberg Kravis Roberts & Co., “KKR” and (pension-thieving to give to bankrupting frac’ers) AIMCo buying 65% of CGL.
RCMP Mobilizing Officers to Houston, NEBC, Intensifying Harassment of Camps. RCMP are lying, as usual, “saying one thing and doing the exact opposite.” BC Premier John Horgan: “The rule of law needs to prevail.” Whose? White Privileged Rich Man’s Law? Oil & Gas Industry’s Law? Racists’ Law?
Just how corrupt is Alberta Justice? Infuriating! Sickening! Welcome to Alberta’s “Rule of Law.” The Fifth Estate: The autopsy (part 1): What if justice got it wrong? “I did not kill my son. It was an accident.”
All Eyes on Wet’suwet’en: International Call for Week of Solidarity! Canada’s “Rule of Law” exposes it’s public interest harming, corporate interest protecting, dark underbelly – again. Thank all that is good: ***Unist’ot’en evict Coastal Gaslink from their Territory*** and Hereditary Chiefs of all 5 Wet’suwet’en clans reject BC Supreme Court Justice Marguerite Church’s decision, which criminalizes Anuk ‘nu’at’en (Wet’suwet’en law)!
Violation of court order in Trans Mountain appeal ‘attack on the rule of law,’ judge says. Rule of Law in Caveman Canada? What Rule of Law? Oh Ya! For the Rich! Oh Ya! Industry’s! Oh Ya! Law-violating politicians’! Oh Ya! Charter-violating regulators! Oh Ya! Protecting rapists and pedophiles while re-victimizing victims making how many boners under the bench?
Rule of law in Canada? Most unlikely, except to enable corporate abuse, greed & pollution; protect the rich, lying judges & lawyers, corrupt politicians & law violating regulators. Newfoundland and Labrador trying to jail journalist Justin Brake for doing his job, judge pathetically enables the abuse of process; Maureen Killoran, Encana lawyer in Ernst vs Encana, seeks outrageous injunction for Kinder Morgan, judge shows obvious bias for the company
Chief Justice Beverley McLachlin on rule of law principal that “no one, no matter how important or powerful they are, is above the law in a diverse society.” [EXCEPT AER, THE RICH, OIL AND GAS COMPANIES, PIPELINE COMPANIES, TRUMP AND HIS GOONS, HARPER AND HIS GOONS, KENNEY AND HIS GOONS, FORD AND HIS GOONS, HORGAN AND HIS GOONS, ETC ETC ETC]