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Lawsuits and land rights: Next B.C. government has its hands full with First Nations

Indigenous candidates, activists and experts weigh in on what next week’s provincial election could mean for resource development in B.C.

Discourse by Trevor Jang | May 6, 2017

Kanahus Manuel stands beside the vast North Thompson River on the industrial outskirts of Kamloops, B.C., a sacred spot for the Secwepemc people. If all goes according to plan, Kinder Morgan, the largest energy infrastructure company in North America, will begin drilling beneath the river later this year as part of its Trans Mountain Expansion Project.

But Manuel wants to get in the company’s way.

An Indigenous rights activist, she’s leading a group of grassroots Secwepemc people who are planning to re-establish traditional villages by building 10 small homes along the route. “What we want to really establish is challenging the provincial jurisdiction over our territory by living and occupying on our land,” Manuel tells me. “The province does not have the title to issue permits to even give Kinder Morgan the [permission] to do that.”

Indigenous rights activist Kanahus Manuel speaks at a gathering of land defenders from across B.C. They’re strategizing their efforts to block construction of resource development projects by occupying camps on traditional territories. Lindsay Sample
Indigenous rights activist Kanahus Manuel speaks at a gathering of land defenders from across B.C. They’re strategizing their efforts to block construction of resource development projects by occupying camps on traditional territories.

The B.C. government approved Kinder Morgan’s $7.4-billion proposal in January after the federal government gave its approval last November. But Manuel firmly believes that final permission for this pipeline route, which stretches from Edmonton to Burnaby, can only be given by the Secwepemc people and other First Nations.

Jurisdiction over Indigenous territory is a complex issue, and next week’s B.C. election will have big implications for how it’s interpreted — and given legal force — in the province. Both the B.C. NDP and Green Party promise to endorse the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which calls for governments to achieve the free, prior and informed consent of Indigenous people before moving forward with resource development projects on their traditional territories.

This would be good news for land-rights activists and environmentalists who want to see energy projects like Kinder Morgan’s live or die by the say of First Nations. But there are concerns, among developers and community members eager for jobs, that giving Indigenous communities more power would stall projects.

Prime Minister Justin Trudeau’s Liberal government campaigned on a promise to endorse UNDRIP at the federal level. After being in office, federal Justice Minister Jody Wilson-Raybould told a crowd of First Nations leaders in July 2016 that inserting UNDRIP into Canadian law was “unworkable.” At the time, Canada had endorsed the declaration, but opposed the wording of free, prior and informed consent. The Liberals also sparked tensions by approving mega-projects without the consent of some First Nations who were impacted.

“There’s some really good agreements being worked out. Most First Nations, all they want to be is included, and that’s happening in the northwest.”

Ottawa’s tone changed last month, however, when Indigenous and Northern Affairs Minister Carolyn Bennett officially retracted Canada’s objections. “We will amend laws written in a paternalistic and colonial way, and implement direction given to all ministers in [Trudeau’s] cabinet,” she declared at the U.N. Permanent Forum on Indigenous Issues in New York.

Bennett’s statement came in the midst of election season in B.C. — a province where lawsuits over First Nations’ land rights are often the final roadblock to getting resource development projects off the ground. How major resource development projects get approved — or denied — by Indigenous people could completely change, depending on which party forms the next government in Victoria.

Is the NDP’s promise realistic?

Earlier this week, a group of First Nations leaders launched an “Anyone But Clark” campaign targeting sitting Liberal Party Premier Christy Clark. They’re disappointed with Clark’s push on major resource projects — like the Site C dam, numerous proposed liquefied natural gas (LNG) projects and Kinder Morgan’s Trans Mountain pipeline expansion — all of which face some opposition from First Nations whose territories these projects impact.

The BC Liberals, while claiming to be committed to “concrete measures to achieve reconciliation,” have danced around endorsing UNDRIP or using the word “consent” in their party platform.

“The legal standards of approval for large-scale resource development projects [have] elevated to the level of consent. We’ve moved beyond the need for mere consultation, and yet the provincial government under Premier Clark is refusing to acknowledge that reality,” says Grand Chief Stewart Phillip of the Union of B.C. Indian Chiefs.

Some Indigenous leaders and professionals believe the Liberals aren’t necessarily trying to dodge reconciliation commitments.

“I think that they bring that little bit of real-world perspective on how difficult it is to implement something as all-encompassing and broad and inspirational as UNDRIP is,” says Sarah Robinson, who hails from the Fort Nelson First Nation in northeastern B.C. and is head of Rainwatch Consulting, which provides governance planning and advice to First Nations. “Having worked in government myself, it is much easier to say than to do.”

Robinson tells me it’s “certainly admirable” that the NDP have promised to fully endorse UNDRIP, but it’s not realistic in a four-year term. “I find that they often take about 10 to 20 years to catch up when significant court decisions come down, or significant approaches are put together to support things like UNDRIP,” she adds.

Ellis Ross, Liberal candidate for Skeena and former Haisla Nation chief, says the U.N. Declaration on the Rights of Indigenous Peoples is a “distraction” from the partnerships already taking place between First Nations, government and industry. Ellis Ross

Ellis Ross, Liberal candidate for Skeena and former Haisla Nation chief, says the U.N. Declaration on the Rights of Indigenous Peoples is a “distraction” from the partnerships already taking place between First Nations, government and industry.

One of the Liberals’ most high-profile Indigenous candidates, Ellis Ross, who’s running in the Skeena riding, calls UNDRIP a “distraction” from the partnership that First Nations already have with government and industry. “There’s some really good agreements being worked out. Most First Nations — all they want to be is included, and that’s happening in the northwest,” says Ross, former chief of the Haisla Nation and an outspoken champion of the LNG industry.

“To bring up something external to Canada like [UNDRIP], I mean you’re talking about negotiations, you’re talking about changing legislation, you’re talking about the existing case law,” he tells me. “That doesn’t really help anybody on the ground. The people on the ground, the average citizen, all they want to see is: ‘Do we have a strong economy? Do we have enough revenue coming in to pay for services?’”

What about the Liberals’ promises?

The BC Liberals say they’re proud of the relationships they’ve built with First Nations, and point to the nearly 400 economic agreements they’ve signed with Indigenous communities since 2013 — many linked to participation in the LNG industry. This approach aligned with Ross’ goals when he represented the Haisla in Kitamaat, where three LNG terminals are currently being proposed. “From what I’ve seen, government in our territory has done a good job over the years,” he tells me.

Wanda Good, Liberal candidate for Stikine and deputy chief councillor of the Gitanyow, says the road to reconciliation is complex and that the meaning of free, prior and informed consent should be debated. Wanda Good
Wanda Good, Liberal candidate for Stikine and deputy chief councillor of the Gitanyow, says the road to reconciliation is complex and that the meaning of free, prior and informed consent should be debated.

But the promise of a lucrative LNG industry that Clark campaigned on in 2013 has yet to materialize, with no final investment decisions made from proponents of any of the projects. Meanwhile, many First Nations communities that signed agreements with Clark’s government have been divided over what some are calling a flawed process.

That’s put another Indigenous candidate for the Liberals in a tricky spot.

Wanda Good is running in the Stikine riding, and is deputy chief councillor of the Gitanyow. The Gitanyow are one of a handful of First Nations to file a lawsuit over the federal government’s approval of the Pacific Northwest LNG terminal proposed for Lelu Island on the north coast, just south of Prince Rupert — a project heavily supported by Clark.

“I can’t really comment,” Good says of the court case. What she does tell me is that there are First Nations in her riding who have signed LNG agreements. “There are 63 First Nations across the province that have signed onto pipeline agreements, so there is open discussion in the riding, and I will commit to being involved in those discussions.”

Those agreements don’t necessarily mean there was free, prior and informed consent, nor adequate consultation, argues Anne Marie Sam, a councillor for the Nak’azdli Whut’en near Fort St. James and an NDP candidate for Nechako Lakes. “We had to go to court to get the government to come to the table,” she tells me. “It’s not out of the goodness of the Liberals’  heart that they thought, ‘Okay, let’s work with First Nations.’ It was First Nations having to challenge them in court.”

Anne Marie Sam, NDP candidate for Nechako Lakes, stands with party leader John Horgan. Sam is a councillor for the Nak'azdli Whut'en, and wants to see a new regulatory process for energy projects in B.C. that enables First Nations to provide their consent. Anne Marie Sam
Anne Marie Sam, NDP candidate for Nechako Lakes, stands with party leader John Horgan. Sam is a councillor for the Nak’azdli Whut’en, and wants to see a new regulatory process for energy projects in B.C. that enables First Nations to provide their consent.

Nak’azdli Whut’en did sign a benefit agreement with the Liberal government in relation to the proposed Pacific Trails Pipeline, but Sam says the community felt pressured by the process, and signed out of a fear of missing out — not because they felt they had any say. “I felt with LNG, we were being asked to sign here and accept this project without knowing all the details.”

She adds, “I think you have to step back and see what is the best way to do this and what is the best consultation. And if communities are not wanting it, how do we respect communities that say this isn’t what we want?”

The government and First Nations have to share the land

Darwin Hanna is a B.C.-based Indigenous lawyer with expertise in land claims, self-governance and business law. He says provincial governments legally could implement UNDRIP — it just requires the political will to do so. “Right now, we know that the provincial legislation does not fully endorse UNDRIP, so that’s the challenge,” he says. The main concern, says Hanna, is “having arrangements to recognize co-jurisdiction between the province and First Nations.”

That unresolved challenge of jurisdiction is at the root of the conflict brewing in Secwepemc territory, where Kanahus Manuel and others are preparing for a long battle to stop the Trans Mountain Expansion Project. The oil pipeline is also facing numerous lawsuits from First Nations claiming they weren’t properly consulted. Manuel says she’s not waiting for a judge to confirm what she already knows, nor is she holding her breath for the next provincial government to endorse UNDRIP.

“Native people just have to go out and assert it,” she tells me passionately. “And that’s where we’re at right now — is asserting all of our rights and titles that’s recognized in all of these Supreme Court cases.”

Manuel isn’t alone in her approach. In March, she joined land defenders from all over B.C. who gathered in Vancouver to strategize, fundraise and share their experiences resisting projects on their territories. Members of the Gitwilgyots tribe have occupied Lelu Island in protest of the Pacific Northwest LNG project since August 2015. Members of the Gitxsan Nation have occupied the Madii Lii camp, blocking the path of the Prince Rupert Gas Transmission Line, which would transport natural gas to Lelu Island. And the Unist’ot’en camp is blocking several natural-gas pipeline routes in Wet’suwet’en territory.
“But if you fuck with us … we’re going to lay down the law. We’re going down to lay down our law.”

Meanwhile, in B.C.’s Lower Mainland, members of the Kwantlen First Nation are preparing to build longhouses in the path of the Trans Mountain Expansion Project. “There are two MLAs who are key figures in the provincial government that are in our territory, [Minister of Natural Gas Development] Rich Coleman and [Environment Minister] Mary Polak,” Kwantlen member Brandon Gabriel tells me. “They try to paint this picture that we are consenting, that we are friendly. And if you’ve ever been to Kwantlen, we are friendly. But if you fuck with us … we’re going to lay down the law. We’re going down to lay down our law.”

The message is clear: The issue of jurisdiction isn’t going away for the next B.C. government — no matter which party wins. Rainwatch Consulting’s Sarah Robinson has some free consulting advice for whoever is B.C.’s premier on May 9.

“If a protest camp or blockade of some kind is taking place over a large resource development project, in my personal opinion, sending public servants or representatives from the company to do the negotiating is almost setting yourself up for failure,” she tells me. “It’s certainly worthwhile for the leader of that political party to consider heading down there themselves to begin dialogue and communicate respectfully that they are there in the spirit of honouring that nation-to-nation relationship.”

See article here…..

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Arthur Manuel’s battle against the 0.2 per cent Indigenous economy

The First of 5 series of articles in honour of Arthur Manuel presenting “Resistance 150: Unsettling Canada’s Hidden Economic Apartheid,” 

Ricochet by Shiri Pasternak

As the pageantry around Canada 150 begins, Ricochet and our Indigenous Reporting Fund present “Resistance 150: Unsettling Canada’s Hidden Economic Apartheid,” a series honouring and continuing the path breaking work of the late Arthur Manuel. The Secwepemc chief, long-time member of the United Nations Permanent Forum on Indigenous Issues and indomitable activist and thinker played a key role in Indigenous land defence in Canada and globally.

“Resistance 150,” inspired by Manuel’s book Unsettling Canada, is a five-part series by Shiri Pasternak, an academic, writer and organizer who is active with Defenders of the Land and their new campaign, Unsettling 150. Before his passing, Manuel asked Pasternak to expand on his ideas and undertake this series for Ricochet’s Indigenous Reporting Fund. It is intended as an educational contribution, promoting dialogue and unsettling the colonial assumptions underlying the official Canada 150 celebrations.

The late Secwepemc leader Arthur Manuel never wavered in his certainty that land restitution was the foundation for Indigenous self-determination. Without a land base and economic rights over that base, he argued, Indigenous peoples would be destined for dependency forever.

In his book Unsettling Canada, he said the hardest thing about being a chief of the Neskonlith Indian Band for years was confronting the destitution of community members. There was nothing that one chief could do. “You know deep down that they are not going to get anywhere unless there is a major change in our society. Without outside change, they will never have the footing to climb out of the situation life has placed them in,” he wrote.

The kind of change Arthur advocated for was based on the fundamental fact that this country is built on Indigenous land, and Indigenous peoples have jurisdiction over their territories, land and resources.

For all the talk about First Nations’ economic development, the focus of governments and the public is only ever on what Arthur called “the 0.2 per cent economy.” That figure represents the total land base covered by Indian reserves in Canada. It is a tiny amount of space for more than 600 First Nations, especially given the enormous landmass of Canada.

The vast majority of this country is sparsely populated, so why have Indigenous peoples been denied jurisdiction over most of their lands?

They want First Nations people reliant upon the 0.2 per cent economy.

According to Arthur, Indigenous people must rely on the 0.2 per cent economy because they have been denied rights to the 99.8 per cent economy, which is largely reserved for provinces to lease, permit and license forestry, mining and energy resources. Provincial governments promote resource development to accrue votes for job creation and to collect paltry revenues.

Governments also hoard the 99.8 per cent to retain control over thousands of miles of roads, highways and rail lines. To retain the right to develop more lands into transportation routes and other critical infrastructure like hydro power and pipelines. To maintain close to 400,000 square kilometres of national parks and national marine conservation areas in Canada to carve out “wilderness” for tourist consumption. Canada, the provinces, and the territories don’t want Indians interfering with this political economy.

But also — importantly — they want First Nations people reliant upon the 0.2 per cent economy.

If First Nations are reliant on the 0.2 per cent, then they may not interfere with this business-as-usual approach to settler capitalism.

Arthur Manuel at Standing Rock

A system of control

This is the context in which Arthur urged us to understand the 0.2 per cent economy: as a powerful form of control exercised over First Nations to constrain their assertions of jurisdiction to lands, territories and resources. The 0.2 per cent economy is meant to lock First Nations inside the daily struggles of being fed, clothed, educated and sheltered. It is meant to dehumanize them, so that Canadians can forget that First Nations poverty is made in Ottawa, so they can point fingers at systemic deprivation and call it “failing.”

The fact is too many Canadians are born on third base and are celebrating like they got home runs.

This series will explore Arthur Manuel’s concept of the 0.2 per cent economy.

The second part in this series — “Permanent Austerity and Fiscal Brutality: Federal Transfer Payments” — surveys the coercive use of federal transfer payments to keep First Nations in systemic poverty. A lot has been written on the funding disparities between First Nations living on reserve and Canadians. The basic structure of this disparity will be examined here.

The third part in this series — “Mercenary Colonialism: Third-Party Management” — explores the most extreme use of federal transfer payments. Third-party management is when a band’s federal transfer payments are handed over to external accountants, who are paid lucratively out of band funds but answerable only to Indian Affairs. There is almost no oversight or accountability by these accounting firms to First Nations bands, and it’s often a veritable pillage. The imposition of third-party management is a powerful tool in the federal government’s belt to gain control over bands that step out of line.

The fourth part in this series — “How Racism Frames First Nations’ Economic Rights Today” — will focus on the meaning of economic rights for First Nations through law and legislation. While most legislation focuses on the 0.2 per cent economy, and the courts have been reluctant to admit any commercial rights to First Nations, there are cracks where some hope can filter in.

These articles raise an important question: What does it mean to talk about the 99.8 per cent Indigenous economy? What is the nature of Canada’s economy, and how has the country’s reliance on natural resource extraction and exports conditioned settler colonialism in distinct ways? How has Canada sought to mitigate the risk of obstruction to its political economy by Indigenous assertions of jurisdiction over their territories? What happens when Indigenous peoples assert and exercise economic jurisdiction off reserve? And who are the communities at the forefront of this struggle to do so?

The fifth and final part in this series — “The Indigenous 99.8 Per Cent Economy: Shining a Light Ahead” — will conclude the series with examples of communities that are exercising economic jurisdiction over their national and local territories through sheer will, determination and often brutal contestation.

Resistance 150: Unsettling Canada’s hidden economic apartheid
Arthur Manuel’s battle against the 0.2 per cent Indigenous economy
Part one:     Arthur’s Manuel’s Battle Against the 0.2 Per Cent Economy
Part two:     Permanent Austerity and Fiscal Brutality: Federal Transfer Payments
Part three: Mercenary Colonialism: Third-Party Management
Part four:   How Racism Frames First Nations’ Economic Rights Today
Part five:    The Indigenous 99.8 Per Cent Economy: Shining a Light Ahead

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Notley says B.C. First Nations won’t stop pipeline

Premier Rachel Notley says she doesn’t believe British Columbia First Nations will derail the expansion of Kinder Morgan’s Trans Mountain pipeline, even as a prominent B.C. chief vowed Friday that the project will never be built.

The Calgary Sun by James Wood /  June 2, 2017

The B.C. NDP and Green Party have entered an agreement that looks likely to install a minority NDP government in the west coast province.

A provision in the deal calls for the new government to use every means possible to block the expansion of Kinder Morgan’s Trans Mountain pipeline, with opposition to the project from indigenous groups expected to be a key component of the fight against the project.

Green Party Leader Andrew Weaver cited Section 35 of the constitution — which protects indigenous rights — as a way to stop Kinder Morgan as a number of B.C. First Nations have launched legal challenges to Ottawa’s approval of the pipeline.

But Notley noted Friday that other First Nations are backing the project and it appears the legal requirements around the federal government’s duty to consult have been met.

“There’s not ever going to be absolute consensus along the way,” Notley said at a news conference where she announced $20 million in provincial funding for new playgrounds..

“We’ll continue to work with those who are in support of it, as well as to talk, to accommodate and hear the concerns of those who are not around issues of marine safety, which is really the primary issue that is driving a lot of this.”

Kinder Morgan says it has signed agreements with 51 indigenous communities in support of the project, including a majority of First Nations along the pipeline route.

The Trans Mountain expansion, which would significantly increase the amount of Alberta oilsands crude shipped to the Pacific coast, is seen as vital for Alberta to open new markets in Asia and get a better price.

Notley maintains B.C. does not have the power to stop Trans Mountain, which has been approved by the federal cabinet. She has said repeatedly over the last week that the pipeline will be built.

But Stewart Phillip, grand chief of the Union of British Columbia Indian Chiefs, said Notley has simply ratcheted up the tensions with her “inflammatory” comments and said the pipeline will never move forward.

“If somebody on the east side of the Rockies is going to say, ‘come hell or high water, we’re going to ram this through,’ you can well imagine that people on the west side of the Rockies are going to say, ‘not on our watch it isn’t,'” he told Postmedia Friday.

Phillip said the primary battle against the pipeline will be legal, with political dimensions. There are also financial factors, he said, suggesting delays could make the project uneconomic for Kinder Morgan.

Civil disobedience is also possible if other measures fail, he said.

Kai Nagata of the Dogwood Initiative environmental group said this week the fight against Kinder Morgan hinges on First Nations opposition to the project.

“The leaders of British Columbia I think are right to talk about this in terms of whether the project has consent,” said the pipeline opponent.

“It’s an ugly thing to push forward a policy that doesn’t have the consent of the people most affected.”

B.C. NDP Leader John Horgan, the likely next premier, told CBC’s The House that he is prepared to go to court over the Trans Mountain expansion but that he was trying to determine which lawsuit to join. The Tleil-Waututh, Musqueam and Squamish First Nations have court cases challenging the pipeline, as do the cities of Vancouver and Burnaby.

Horgan and Notley are long-time friends. He told the public broadcaster he appreciated the Alberta premier’s perspective on the issue but that they had agreed to disagree.

Notley said at an NDP fundraiser this week that she was prepared to put friendship aside in order to fight for the pipeline but noted Friday that Horgan had been “a little bit more measured” than Weaver in their joint news conference earlier this week.

With Horgan standing beside him on Tuesday, Weaver accused Notley of “fear-mongering,” calling on her to “get with the program to embrace the 21st century” and invoking constitutional hurdles to the Trans Mountain expansion.

Notley however dismissed Weaver’s comments.

“I’m fully aware of the constitution, I’m fully aware of what it says, I’m fully aware of our position with respect to all elements of the constitution, including Section 35,” said the premier.

“So I thank Mr. Weaver for his efforts to tell me about that, but frankly I was there already.”

See article here……..

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Trudeau talks like a leader on climate, but Canada’s actions don’t match

Government is failing those most impacted by climate change.

Ricochet : May 8, 2017

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It’s not really Canada’s 150th birthday

Truthiness was not invented by Donald Trump or Joseph Boyden. It has been part of Canadian culture for a very long time, and this year it is set to flourish with unprecedented splendour.

Ricochet – April 27,2017 by Grace Woo

Everywhere we turn, some announcer or politician is telling us it is Canada’s 150th birthday. Every museum, every government department, and every city, town and village seems to be inviting us to make videos, write poems, visit parks, run marathons. Participate! Celebrate!

But everyone seems to have lost sight of what this anniversary really is, except for a few Indigenous commentators who shake their heads in disbelief.

Here are some questions with answers that they don’t teach in law school.

1. What are we celebrating?

Technically speaking, July 1, 2017, will be the 150th anniversary of the British North America Act, an act of Britain’s parliament that states Canada’s purpose is “to promote the Interests of the British Empire.”

The Fathers of Confederation met in Charlottetown, but the law was enacted by Britain.
National Archives of Canada

2. Why was the British North America Act important?

The BNA Act invented a new kind of British colony. A “Dominion” (with a capital D) was a “self-governing” colony designed to promote British imperial interests. Canadians remained British subjects and many saw themselves as British.

The arrangement worked well for Britain because it allowed the settlers to take charge of the messy business of colonization. “Dominion status” was soon granted to Australia, New Zealand, South Africa, Newfoundland and eventually the Irish Free State.

In 1898, Canada’s first unofficial Christmas stamp incorporated unceded Indigenous territories in the British Empire.
shankar s.

Canada was put in charge of taking land from “Indians.” That’s even how the country got its name.

As far as we know, Jacques Cartier was the first person to write the word “Canada.” On his first trip, he nabbed two of Chief Donnacona’s sons and took them back to France. According to his journal for his second trip in 1535, as the ship approached their home, one said something like “Voila le Canada.” So “Canada” was originally derived from the word meaning an Iroquoian village.

After that, what we call the St. Lawrence River was called “la rivière de Canada.”

3. Did Canada become a country in 1867?

Savvy Canadian judges and media folk carefully avoid claiming that Canada became a state in 1867. That’s because it didn’t. States control their own foreign policy. The Dominion of Canada did not. It was just a colony. It was designed to serve the British Empire by taking control of Indigenous land and resources and by providing soldiers for Britain’s wars.

So commentators hedge and say that Canada became a country. But what fuddle-duddle! If we follow the dictionary definition of a country as an area of land delimited by natural or political boundaries, Canada was already a country in 1543. Check the old maps.

Canada was already recognized on maps as a country in 1543.
Wikimedia Commons

4. How did Canada become a country?

At first, Indigenous people living along part of la rivière de Canada were called Canadians. Soon “Canada” became synonymous with “La Nouvelle-France” on maps.

Then French settlers began to call themselves Canadiens. According to France, the country called Canada ran right down to the Gulf of Mexico.

“Canada” was another name for “la Nouvelle-France.” So in that sense Canada once stretched to the Gulf of Mexico.

Wikipedia Commons

“Canada” became another name for New France.

5. Did the settlers own the country called Canada on maps?

For a time, settlers and Indigenous peoples coexisted in separate, relationally defined polities. The Two Row Wampum, the first treaty between Indigenous people and Europeans (in this case the Haudenosaunee and the Dutch), is an agreement to travel side by side in separate canoes. Indigenous peoples did not agree to become part of any European empire.

6. How did Canada become British?

France gave its interest in Canada to Britain.

James Wolfe did not really beat Louis-Joseph de Montcalm on the Plains of Abraham. Both generals died from the battle, but Britain did trounce France in the global Seven Years’ War. With the Treaty of Paris in 1763, France gave up Canada and all its other North American colonies, while regaining control of Guadeloupe, which cost less to maintain and produced a fortune in sugar every year.

7. How did Canada shrink to north of the 49th parallel?

After Britain took over Canada, the Quebec Act of 1774 allowed French settlers to keep their own laws, language and religion. The New England colonies found this act intolerable because it gave administration of the Ohio Valley to Quebec. Britain had negotiated boundaries for its colonies with “Indians” but the colonies wanted to expand, so the settlers revolted. Indigenous peoples wanted to stay neutral but many became allies with the British to protect their land.

The British recognized U.S. independence, and the modern boundary between Canada and the United States was set in the Treaty of Paris of 1783. It was negotiated without the knowledge or consent of Britain’s Indigenous allies, who lost their homelands in the deal. The “Indians” immediately identified this as “an act of Cruelty and injustice that Christians only were capable of doing.”

The newly liberated Americans promptly overrode treaty boundaries to expand.

Westward ho! Canada followed.

8. Was the British North America Act Canada’s first constitution?

No. After it became a British colony, Canada had three different constitutions before the British North America Act.

After France gave all its North American claims to Britain, Canadians became British subjects. They were required to obey the King of England in exchange for the Crown’s protection. Next, the Constitutional Act of 1791 split what used to be New France into Upper and Lower Canada, then the Act of Union in 1840 patched them together again after the two Canadas showed they could work together in the Rebellion of 1837.

It was only after those three earlier British constitutions that the British North America Act united the colonies of Upper and Lower Canada with Nova Scotia and New Brunswick. Meanwhile, Indigenous peoples had their own laws and constitutions, remained independent, and were not referred to as “subjects” in the Royal Proclamation of 1763.

9. Did Canada become independent on July 1, 1867?

For 98 years, Canada proudly flew a flag showing its British colonial status.

Wikimedia Commons

For those of us whose ancestors immigrated here, they were or became British subjects like settlers in other parts of the Empire, which was defined by oaths of allegiance sworn to the monarch.

Back in 1867 and well into the 20th century, Canadians considered themselves British subjects. In 1867, most Canadians did not want to be independent. They wanted to be part of the British Empire (with the exception of the French and Indigenous peoples, of course, who had their own desires for independence and self-determination.)

10. Is Canada 150 something for everyone to celebrate?

Most parts of Canada have not been Canadian for 150 years. In 1867, only the colonies in Nova Scotia, New Brunswick and the southern parts of Ontario and Quebec joined Confederation. Other provinces were added later — Alberta and Saskatchewan not until 1905, Newfoundland and Labrador not until 1949. Somehow, of course, they all forgot that Canada is on Indigenous land. They only agreed to share.

But why let a few old facts interfere with a good party?

11. How did Canada grow from coast, to coast, to coast?

In 1927, the 50th anniversary of the British North America Act, Canadians were proud of the Dominion’s territorial expansion. Canada had bought the Hudson’s Bay Company’s trading monopoly over Rupert’s Land in 1869. By some kind of sleight of hand, this was treated as a territorial annexation.

Loyal Canadians are not supposed to question this strange conflation of commercial, territorial and governmental rights. But I’m still wondering: If Bell sells its interest to Samsung, does that mean we might all become Korean?

12. Weren’t all those numbered treaties made by Canada?

Canadians generally think the numbered treaties validated the tremendous territorial expansion claimed from 1867 to 1927. But those agreements to share the land were British and made on behalf of the Queen. They don’t include any Indigenous agreement to become British subjects or part of Canada. According to international law, they actually affirm Indigenous sovereignty.

13. How did Canada turn “Indian” land into Crown land?

Indigenous peoples were not consulted or informed about Canada’s expanding self-definition. Some First Nations tried to start court actions to show that they were allies, not subjects, of Britain. So, Canada amended the Indian Act in 1927 to prevent “Indians” from hiring lawyers.

14. How did Canada become independent?

According to Canada’s constitution, the country’s purpose is still to promote the interests of the British Empire. But in 1926 the Balfour Declaration made the Dominions equal to Britain within the Empire, and in 1931 the Statute of Westminster made it official.

Then imperialism went out of style and everyone gradually forgot about the British Empire, even though our passports still said we were British subjects. Most people have forgotten that Canadian citizenship did not become a legal status until 1947, but Canadians were still British subjects even after the hot debates of 1964-5 replaced the British Red Ensign with the current maple leaf flag.

15. What did Canada celebrate in 1967?

Expo 67 in Montreal


The 100th anniversary of the British North America Act was in 1967. Canada had finally picked a flag of its own in 1965. There were lots of opportunities to fly it beside the flags of other countries at Expo 67 in Montreal.

But did that make Canada a state? Canadians were still British subjects and Canada’s purpose was still to promote the interests of the British Empire.

16. What was patriation about?

As anyone who was around in 1982 may recall, the patriation of the constitution did not happen in response to any great groundswell of public opinion demanding independence. Instead we got treated to a lot of bewildered discussion of the Charter of Rights and Freedoms.

This distracted people from the fact that Canadians were about to lose the privileges once accorded to them as British subjects. Britain had decided that the Empire no longer served its interests and was anxious to divest its colonial holdings, perhaps because so many unwilling subjects were coming to the motherland that places such as Bradford were being called Bradistan.

So, by an act of Britain’s parliament, Canada’s subject status was ended as of Jan. 1, 1983. Yet the Queen remained the Queen of Canada. Britain kicked Canada out of the empire without the knowledge or consent of the Canadian people.

Prime Minister Pierre Trudeau watches while Queen Elizabeth II signs her assent to the Constitution Act, 1982.

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Bravo, Pierre! You saved us from rancorous debate about historical rights. Canada got the Constitution Act of 1982, and the British North America Act was renamed the Constitution Act of 1867, but Canada’s purpose did not change. Britain might not want its empire any more, but Canada’s constitutional purpose is still to promote it.

The prime minister who wasn’t afraid to pirouette behind the back of the Queen was not afraid to pirouette behind the back of the Canadian public either.

17. So what is it again that we are celebrating?

Since facts don’t count, you tell me!

Dr. Grace Li Xiu Woo, LL.B, LL.M, LL.D, is a retired member of the Law Society of British Columbia and on the board of Lawyers’ Rights Watch Canada. She is the author of *Ghost Dancing with Colonialism: Decolonization and Indigenous Rights at the Supreme Court of Canada (UBC Press, 2011.)*

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We Need Climate Disobedience Now—Here’s How To Get Away With It

The Daily Good        February 17, 2017


KEN WARD NEVER DENIED THAT HE BROKE THE LAW. Facing a possible 20 years in prison for taking bolt cutters to an oil company’s property and manually shutting down a pipeline that funnels tar sands crude to refineries in Anacortes, Washington, Ward showed the jury a video of exactly how he did it. How he cut the chain on the pipeline’s valve wheel and closed it down. Despite the uncontested facts of the case, and the fact that the presiding judge had denied Ward the use of a “necessity defense” that would legally justify his otherwise illegal actions, the jurors were unable to come to unanimous agreement. A mistrial. Today, Ward walks free awaiting a retrial.
Ward was one of five climate activists arrested that October morning for shutting down four different tar sands pipelines. Together, they cut off roughly 15 percent of the crude oil imported into the U.S. for nearly a day. There was no physical risk to these actions—in fact, the activists called the pipeline companies before shutting down the valves to ensure that no equipment would be damaged, nor any oil spilled. But the legal risk was significant. All five face felony charges and tens of thousands of dollars in fines. Ward was the first to face trial, and the outcome was stunning.

Together, five climate activists cut off roughly 15 percent of the crude oil imported into the U.S. for nearly a day.
While representing himself on trial, Ward had hoped to use the “necessity defense”—a legal argument that essentially states that a defendant should not be held liable for an illegal action if it was necessary to prevent a greater harm from occurring. The judge, who had publicly doubted the legitimacy of climate change as a threat, denied the necessity defense, leaving Ward in an awfully precarious position.

Unable to prove the legal necessity of his actions, Ward doubled down on proving the moral necessity in his self-defense, hoping to at least reach the consciences of a few jurors. That, as he told Wen Stephenson in The Nation, “I would see at least one or two jurors feel bad about it—come over to us, maybe have a few tears in their eyes, maybe be willing to say in public that they really wrestled with this.”

When the jury came back hung, Ward was “astonished”:

At least some of the jury agreed with us that avoiding climate cataclysm is a more important problem than enforcing the letter of the law. We did not get exactly what I wanted, because we were not able to offer the necessity defense. But bottom line, the jury was presented two possible stories here: They were presented with the choice between cataclysm and the simple, normal application of the law. And some of them saw a greater need.

So how did Ward win over the jury, or at enough of the jurors to bring about the mistrial? With an authentic narrative and simple visuals of climate science.

Ward spoke of the urgency of climate action, citing Dr. James Hansen’s seminal 2005 paper on the growing potential for massive and rapid sea level rise, A Slippery Slope.

And he entered into the record a few simple visuals. First was the video of the coordinated actions, including those he took in Washington, laying bare the fact that he did indeed break the law.

Ward also shared a NASA chart showing 400,000 years of carbon dioxide levels in the earth’s atmosphere, which reveals the truly staggering abnormality of the present moment, and undercuts the oft-uttered claim that “the climate is always changing.”
Historical Atmospheric CO2 Level chart, taken from NASA website shown to Skagit County jury.
To make it personal for jurors, Ward included a map of potential sea level rise in Skagit Country, where the trial was held. Using Climate Central’s Surging Seas mapping tool, Ward forced the jurors to consider the physical fate of their region in the face of five feet of sea level rise. While these projections are all over the map, the increase represents a slightly higher than middle-of-the-road projection for midcentury, and is a figure that had been cited by the U.S.’s top climate envoy to the United Nations climate talks in Marrakech.
Projected 5′ sea level rise impact on Skagit County map show to the Skagit County jury.
Ward emphasized that the targeting of pipelines hauling tar sands crude was deliberate, and used a chart from the Carnegie Institute to show how oil derived from the Canadian tar sands has the highest life cycle of carbon emissions for any oil.
Carnegie Institute Oil-Climate Index chart shown to the Skagit County Jury.
It worked. At least one morally fierce juror listened to their conscience, dug in their heels, and forced the mistrial. “In my defense, truncated as it was, I was able to present the barest minimum of information outlining and supporting the simplest and direst aspect of the climate emergency: catastrophic sea level rise and why my action can be considered appropriate in the circumstances,” Ward wrote.

The Urgent Need for Direct Climate Action

Nearly seven years ago, Tim DeChristopher—who has since founded the Climate Disobedience Center with Ward and two others to support direct action on the fossil fuel industry—told GOOD how it was the moral responsibility of anyone who understood the climate threat to “be the carbon tax.”

You know how Gandhi said you have to “be the change you want to see in the world.” Well the change that most of us wish to see is a carbon tax, but our leaders aren’t doing that for us, so Gandhi’s call is then for us to be the carbon tax. What does that mean—to “be the carbon tax?” To cost the fossil fuel industry money in any way that we can. Getting in their way, slowing them down, shutting them down. Doing whatever we can to be that tax. It forces our leaders to make a choice—to either be more explicit in their war on the young generation, to to get serious about stopping climate change.

The Shut It Down actions in October were one example of this—they certainly cost the pipeline companies money—but they also churn more energy into a rising wave of civil disobedience in the face of climate crisis. As years go by and emissions continue to rise, eating into our rapidly disappearing carbon budget, the need for tougher action becomes increasingly urgent.

To get in the way of the fossil fuel industries’ business as usual, is to “deny consent,” as Ward’s friend and fellow valve turner Emily Johnston put it.

To understand our power as citizens of the world, we have to remember that in countries where it’s still frowned upon to murder environmental activists, fossil fuel companies cannot operate without our consent. What does that consent look like? It looks like the Standing Rock Sioux deciding not to defend their water and their sacred sites. It looks like Seattle shrugging when an Arctic drilling rig is in our port, and figuring well, they’re going to do it anyway. It looks like Keystone XL being built in 2011, because ranchers and Native Americans and young people across the country believe the industry when its arrogant executives tell us it’s a done deal. It looks like people leaving their money in banks that fund these terrible projects, because they don’t see how it matters, or they think the banks are all equally bad.

In a democracy, passivity is implicit consent.

You don’t have to shut down pipelines or anchor a lobster boat in front of a coal tanker or outbid gas companies for fracking leases (though those are all creative, inspiring ideas!), but to deny consent you must do something. Maybe it’s divesting from your bank if it funds pipeline projects. Maybe it’s fighting a mine in court. Maybe it’s taking breaking the law to help prevent a greater harm. (And if you do get into some hot water for an illegal act, looks like Ken Ward has a few charts that might get you off the hook.)

To learn more about the #ShutItDown action, and the necessity of civil disobedience for the sake of climate survival, be sure to read Wen Stephenson’s interview with Ward and fellow climate activist Emily Johnson, who shut down another tar sands pipeline that October morning in Minnesota. And to support the legal defenses of the five activists, visit their Shut It Down Today site.

Preview image via Vimeo screenshot

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Australian Aboriginal Children stand in solidarity with Standing Rock.

The White Wolf Pack : February 16, 2017


‘This painting shows the black narin (snake). It represents the pipeline killing Bininj (Indigenous) people, and the land out there. The Bininj people are stopping it, throwing monkolli (spears). Bininj are fighting that black narin to stop it before it goes more further and kills everything.

In my painting Ngaliod (Rainbow Serpent) is helping to save their land and water and the people. Our Ngaliod is namak (good) she helps us to look after the land. We respect her, she gave us knowledge. We know she looks after the land and she will get upset. Those people who disrespect the land, she will come loud to their dreams….she will show them… stop them.’

Children’s Ground is the first organization of its kind in Australia. Their approach focuses on long-term change, working with each child, each family and each community, so that children learn, grow and thrive in communities that celebrate cultural, social and economic well being.

Thousands of Indigenous Australians have joined a global social media movement to show solidarity with those protesting against the Dakota Access Pipeline at the Standing Rock Indian Reservation in the United States.

Over the weekend, Indigenous Australians – including actors, elite sportspeople, politicians, and activists – joined the movement with Native Americans.
Photos Children’s Ground

Traditional owners in Australia’s Northern Territory are hopeful that the widespread support for Standing Rock protesters will lead to greater awareness of a proposed Australian gas pipeline that locals claim will also destroy sacred sites and poison the water table.

The project is called the Northern Gas Pipeline, a 622-kilometre pipeline that would run from the Northern Territory town of Tennant Creek to Mt Isa in Queensland, where the gas would then be exported.

“The company is not telling us the proper story about this pipeline,” said Betty Rankine, a Wakaya traditional owner. “We know it will mean fracking for gas to fill it, which will damage our country, and we’re not happy about it.”

Recently, several traditional owners stormed out of a presentation by the Singaporean and Chinese company Jemena, which would manage the project if it goes ahead.

The Wakaya are calling on more Australians to join their protest.
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