Transcript
Speaker: Hello and welcome to today's episode of Red Eye. I'm Jane Williams.
Speaker: Judging by the constant stream of news reports of standoffs certain and confrontations, it's apparent that Canada's reconciliation project has gone off the rails. Standoff is the title of a new book of essays by a lawyer and historian Bruce McIver.
Speaker: In it, he examines why reconciliation is failing and what needs to be done to fix it. Bruce McIver is a member of the Manitoba Métis Federation and a partner at First People's Law. Bruce represents First Nations across Canada from Wet'suwet 'en opposing the coastal gas link pipeline to Mi 'kmaq exercising their fishing rights in Nova Scotia. He also teaches at the Allard School of Law at UBC. Bruce McIver joins me this morning to talk about the book. Hello, Bruce. Hi, James. Thanks very much for inviting me on the show. Really happy to have you with us today. Now, Standoff is made up of close to 40 short essays. What's the time span that you cover in the book?
Speaker: These pieces cover probably about the last 10 years or so, the development, or perhaps to a certain extent, what I see as the lack of meaningful development in the law. So they about 10 years and I cover legal developments, but more importantly, putting them into a wider social and political context.
Speaker: How has Canadian Aboriginal law developed, or maybe you might say not developed, over the past decade? Yeah, over the last 10 years, there have been some important developments, I think, progress <unk> in the law. It's not been as fast, of course, as a lot of people, indigenous and non -indigenous, might hope.
Speaker: And we're moving towards particularly a better idea of what Section 35 rights under the Constitution include, particularly around Aboriginal title, the Silkeltin decision from the Supreme Court in 2014, very, very important de decision on that front. But at the same time,
Speaker: There has been a lot of stagnation and I think regression in the law and ah we see the consequences of that now on a daily basis across the country where there are standoffs between Indigenous people and non -Indigenous who want to take control of Indigenous lands.
Speaker: You start off with a doctrine of discovery, and you say this is a direct correlation between the death of the 215 indigenous children at the Kamloops Indian Residential School and the doctrine. How so? I think the direct correlation is the policy of denial. I connect the denial of indigenous laws, of indigenous interests,
Speaker: in the land. That's the very foundation of Canadian law. It's the foundation of the Canadian state and connect that to the ongoing denial of Indigenous people as people that have a right to their laws It's a denial of their very humanity. And that's what we see, I think. And it really strikes home when you think about the Indigenous children who never returned from so -called residential schools across the country that were buried on those grounds. and
Speaker: in burying them, the government continued to deny their right, their people's rights to the very land that they were buried in. And I think that's important for non -Indigenous people to keep in mind. This is an ongoing issue. It's not just about the past. It's ongoing today and it needs to be resolved in a meaningful way.
Speaker: For people who may not have heard of the Doctrine of Discovery, could I summarize it as, we found it, it's ours? Yeah, that's a a good way of doing it. I have an Anishinaabe client that was doing a great job of explaining it and they drew the shoreline along their territory and then a ship coming from over the seas from Britain and someone getting off and planting a flag.
Speaker: And that pretty well sums it up that somehow non -indigenous colonizers can arrive, plant a flag and say, it's not yours anymore, we own the land and our laws apply to these lands.
Speaker: yeah I was right in the middle of reading the book when the RCMP raided the Wetsuiton camp and you have several essays in the book about the Wetsuiton, one that you wrote with your colleague Kate Gunn called the Wetsuiton Aboriginal Title and the Rule of Law, an explainer. What are you trying to explain there? I think the first thing is that it's important when we hear government industry talking about the rule of law that to a large extent Canada is not following its own laws, that ifs the the concept of the rule of law is used as a way to silence Indigenous people, but the Wet'soten in particular have the law on their side.
Speaker: If we were following the rule of law, we wouldn't be in the situation we're in now. The first principle is that under Canadian law, and it's been confirmed by the courts more than once, Indigenous people that were on their lands when colonizers arrived continue to have an interest in those lands.
Speaker: If they don't make a treaty, if they're not so -called conquered, they have an interest and their laws apply. That's the law. And the fact is that the BC government continues to deny it. And by denying it, they don't have to grapple with these important issues of consent, of what's so wouldn't interest in the land itself it's ah
Speaker: ongoing policy of denial that allows the BC government to continue down this path and that leads directly to the confrontations we've seen in the last few weeks. Now, I read a quote from Indigenous Affairs Minister Murray Rankin and he said, it's not the government of the day that directs police to do their work. He said that like a couple of days ago, I think. What's your reaction to that statement?
Speaker: That's true to a certain extent. They don't give directions, but it's government policy that leads to the situation that we're in. And so I think it's important that government officials, politicians, own that responsibility. I've seen them in the news the last few days pointing fingers at the federal government or at the Witsoiten themselves.
Speaker: that there's disagreement and that is disingenuous. The fact is for the Wet'suwet 'en and the Git 'zan, if there's any indigenous peoples in BC that the provincial government knows has title, has us such a strong claim to title and that they need to go speak to their hereditary chiefs, it's the Wet'suwet 'en and the Git 'zan because of They're pursuing the Delgamook case that went to the Supreme Court in 1997. So again, this all comes back to the provincial governments. And it doesn't matter if it's a liberal government, an and NDP government, they're all pursue the same policy of denial. And the provincial government needs to own responsibility for that and not lay blame elsewhere.
Speaker: You write about a similar raid in February last year in an essay called Reconciliation at the End of a Gun. Talk about that piece. Yeah, that one is an example of some of the pieces in the book. Difficult for me to write personally. I'm writing about the law, but I'm also using my own personal experiences, both growing up in rural Manitoba and also working on behalf of Indigenous people across the country. across the country And it's difficult at times. I always tell non -Indigenous people, it should be difficult. if you're in If you're taking part in reconciliation and it's making you feel good, you're probably doing something wrong. So that's one of those ones that was difficult for me to write. It's difficult for a lot of people to read and
Speaker: period, but the underlying point that I'm making there is that violence against Indigenous people, whether it's individual or in these situations, state sanctioned violence against Indigenous people, is a fundamental part of Canadian history. And it's an ongoing part of Canadian politics and law.
Speaker: violence against Indigenous people. And that's what we see. And non -Indigenous people need to recognize is that. It's not simply a matter of apologies. It's not simply a matter of a nod to the past. It's what's going on on a current day basis across the country, violence against Indigenous people. And we need all to come to terms with that.
Speaker: The duty to consult comes up over and over again in the book. What role has it played in actually protecting Indigenous land and rights? This is a good example where we began with the conversation going back over the last 10 years. I remember at the time in 2004 when the Supreme Court expanded and elaborated on the duty to consult principle. There was a lot of hope at the time.
Speaker: that this would lead to a better place. And it has ah assisted in certain situations to a significant degree. But over the 10 years or so now, um its value has decreased consistently. And I always tell clients now, if you're still doing the duty to consult, you've probably already lost.
Speaker: We need to be in a consent -based world, not a duty -to -consult world. The duty -to -consult led to the injunction that CGL got against the Wetzel and the enforcement of that injunction by the RCMP.
Speaker: Instead of being in that paradigm, we should be in one where governments are coming to the Wetzel and are coming to indigenous people across the country and seeking their consent and respecting their laws over the land. And that's not the purview of the duty to consult. It's something much more significant and something that can really lead to significant change.
Speaker: This might be a funny question to ask a lawyer, but do you think people should be moving, indigenous people should be moving away from the court? Well, it's one of these things that as a lawyer, I grapple with all the time. I'm trained and I practice in the common law in Canada and I get indigenous people, clients all across the country asking me, why doesn't Canada follow its own laws?
Speaker: That's a hard one for a lawyer to deal with because you know what? You're right. It's a problem. And it's a problem going into court to begin with because we're within that system of Canadian made law that on its own rests on the discredited doctrine of discovery. It's hard to really sell it when you're talking to people saying, have faith in it, when that's the foundation of Canadian law. And that's why I think the most important work, the most interesting work going on across the country is Indigenous people for themselves invigorating their own legal systems, their own laws.
Speaker: That's exciting. And that has the potential to lead to real reconciliation. There's a quote from Tim Fontaine of the satirical newspaper Walking Eagle News on the cover of your book. Canada's vision of reconciliation with indigenous people is crap. It's nice to see a book that shares this view. Do you share that view? Yeah, I think the way it's currently crafted by the provincial and federal governments. Yeah, to a large degree, I think it is crap. I think indigenous people have recognized that for a long time. And I think why it is, is because the governments are first continuing their policies of denial within this discussion of reconciliation.
Speaker: In order to have effective change, we shouldn't be talking about reconciliation. We should be talking about recognition. Recognition of Indigenous people's interests in the land. Recognition of Indigenous peoples' right to exercise their own laws over the land. That should be the conversation. But if if we continue within this reconciliation framework, it's very hard to imagine how it leads to a meaningful
Speaker: conclusion because what they're doing is they're trying to reconcile a right which is indigenous people's right to the land right to exercise their laws with a wrong and that wrong is where we started somehow and non -indigenous people can just show up and claim an interest over their land the government can say it's crown land we own We own the land. So as long as that's what we're doing in reconciliation, it's hard to yeah imagine that we're going to get to a positive outcome anytime soon. yeah the the The last little part of that quote is, read it and learn. And I would heartily second that. It's a really great book. Thanks. i The best compliments I get are when people say, I really enjoyed it.
Speaker: It didn't sound like a lawyer. and but Then I know I've done my job. Thanks so much for talking to me this morning, Bruce. It's been a real pleasure. Great. Thank you very much, Jane. I've been speaking with Bruce McIver, author of Standoff, Why Reconciliation Fails Indigenous People and How to Fix It. It's just been published by Knightwood Editions.
Speaker: The Red Eye Collective is based in Vancouver. You can check us out at coopradio dot .org slash redeye.
