What the VIA rail blockades taught me about Indigenous issues in Canada

The media, individuals, and our government all have a role to play moving forward

Jake Bradshaw lists three key lessons he took away from learning about the situation.
Supplied by Jake Bradshaw

The recent blockade protests in support of the Wet’suwet’en hereditary chiefs caused a big shock to Canada, both economically and politically.

Now that it seems media coverage has stopped, I wanted to take some time to reflect on what I learned throughout the protests as a non-Indigenous person.

I want to make it clear that this article won’t address whether or not the protests were “legal” or “valid,” or whether I agree with them. My concerns are with the issues these protests brought to light that need to be addressed moving forward.

1. Some articles didn’t tell the full story about the Coastal GasLink pipeline

There’s a difference between elected band councils and hereditary chiefs. Elected band councils were established in 1876 as a result of the Indian Act to “impose a leadership structure that more resembled Canada’s system of governance.” On the other hand, hereditary chiefs are titles that are “passed down through generations and predate colonization.”

When I first started reading news around the protests, I didn’t know there was a difference because some articles neglected to acknowledge it.

An editorial in the Globe and Mail said “even the Coastal GasLink pipeline at the heart of the current crisis has the support of all 20 elected First Nations band councils along its route” without mentioning hereditary chiefs.

In a podcast from The Economist, the news correspondent in Canada said “the majority of people in those communities are in favour [of the Coastal GasLink pipeline].” Again, there was no mention of hereditary chiefs, and the statement seems to have been made based on the fact that all elected band leaders in the past six years have supported the pipeline.

Finally, a Globe and Mail opinion claimed the pipeline had strong support “with the exception of a small number of hereditary chiefs whose claims of representativity are the subject of debate within the Wet’suwet’en Nation itself.” I‘m not sure if this is true because there’s been no polling of Indigenous people (that I’m aware of) on this issue. However, if you’re going to make a strong claim like this, it’s important to back it up with strong evidence, which I don’t see here.

On the other hand, there have also been articles that have painted a clearer picture of the complexity of the differences between elected band councils and hereditary chiefs (commentary from Global News, one article in the Globe, and another article from ATPN News).

I believe news reporters have a duty to examine all sides of Indigenous issues in their reporting because they have the power to shape the narrative within Canada. 

2. The “rule of law” that we talk about is the “Canadian rule of law,” and doesn’t take into account Indigenous law

In a CTV News article, former Conservative party leader Andrew Scheer said the “RCMP needs to respond to restore order and uphold the law.” According to an article in Policy Options,the importance of respecting the “rule of law” was also raised by Prime Minister Justin Trudeau during arrests that were made in Wet’suwet’en territory in early 2019. 

When Scheer and Trudeau refer to “the rule of law,” I think it’s important to understand that they’re both talking about law that has systematically discriminated against Indigenous people and ignored traditional Indigenous law.

This is the same rule of law that created the Indian Act with the goal of assimilating Indigenous people into Canadian society.

This is the same rule of law that imposed democracy on Indigenous people by creating elected band councils and mandated that only Indigenous people who have “Indian status” could vote in these elections.

This is the same rule of law that made it mandatory for “every Indian child to attend a residential school and illegal for them to attend any other educational institution,” according to the University of British Columbia.

In a legal system that’s discriminated against Indigenous people in the past and continues to do so now, we need to think critically about how we are invoking the “rule of law” when it comes to Indigenous people in Canada.  

3. Canada has a long way to go when it comes to reconciliation

From the plight of missing and murdered Indigenous women to chronic underfunding and poor conditions on reserves, Canada has a lot to work on when it comes to reconciliation with Indigenous people. The specific issue that these protests highlighted is the difficulty Indigenous people face in acquiring legal rights over their land.

The Supreme Court of Canada decision in Delgamuukw v. British Columbia in 1997 set a “precedent for how treaty rights are understood in Canadian courts.” The decision confirmed that “Aboriginal title to land in British Columbia had never been extinguished” and outlined how to prove title in court.

This historic decision gave Wet’suwet’en hereditary chiefs the opportunity to prove Aboriginal title in court and establish legal ownership over 22,000 square kilometres of unceded land in BC. However, the process of proving Aboriginal title is full of roadblocks.

Under the Canadian legal system, when an “Indigenous nation brings a title claim in court, the court expects the nation to prove its claim.”

According to Tsilhqot'in Nation v. British Columbia (2014), in order to establish title, an Indigenous nation must satisfy the following criteria:

  1. The land must have been occupied prior to sovereignty;
  2. If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation; and
  3. At sovereignty, that occupation must have been exclusive.

The burden of proof for each of these criteria is high, and the third criterion requires an Indigenous nation to prove that at the time of sovereignty in 1876, the nation had the “intention and capacity to control the land.”

Beyond the high legal burden of proof, Indigenous title cases are long and expensive. Many Indigenous nations don’t have the financial resources to hire a lawyer and prove these cases in court. The Wet’suwet’en Nation has been attempting to establish title over their land for years and hasn’t been successful. 

The recent protests taught me three major points about Indigenous issues in Canada in the past as well as present. First, the media needs to do a better job when covering Indigenous issues. Second, we need to think critically about invoking the “rule of law” when it comes to Indigenous issues in Canada. Finally and importantly, we need to make acquiring Aboriginal title more accessible to Indigenous communities.

Jake Bradshaw is a fourth-year politics, philosophy, and economics student.


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