Colonial Oppression at Elsipogtog: Right to Self-determination
Arthur Manuel, October 21, 2013
It is important to understand the dynamics of Colonialism and how it manifests itself inside Canada. Colonialism has basically three parts, dispossession, dependency and oppression.
In Canada dispossession happened when the British North America Act 1867 (BNA Act) was passed in the Imperial Parliament of Great Britain. The BNA Act 1867 was Canada’s first Constitution but more importantly it turned over all Indigenous Peoples territories to federal and provincial government law making power. The BNA Act 1867 is a fundamental violation of the human right of Indigenous Peoples to self-determination.
It is under section 91 federal and 92 provincial sections that the provinces establish their power to cut down our trees, build mines and lay out pipelines. The wealth and economy of Canada and the provinces is based on this colonial constitution that basically dispossesses Indigenous Peoples and makes us dependent on the federal and provincial governments. Dispossession and dependency is humiliating and creates a great upheaval in our social, political, economic, cultural and spiritual life. That is why the United Nations has condemned colonization in all its manifestations.
The only place where it is still very persistent is here in Canada. In fact it was very evident when the Royal Canadian Mounted Police were facing off with Indigenous Peoples of Elisipotog. The fracking exploration was made under laws made under the BNA Act 1867 without any recognition or affirmation of Aboriginal and Treaty Rights. The injunction and enforcement order that the Southwestern Energy Company from Houston, Texas was based on permits gotten under that system. The police were engaged in colonial oppression by enforcing that order against Indigenous Peoples without recognition and affirmation of Aboriginal and Treaty Rights.
When Canada’s Constitution patriated in 1982 section 35 and section 37 was added to fully include Aboriginal and Treaty Rights. It was the Constitution Express 1980 and the British lobby in 1981 that got those sections added to the constitution and they must be linked together because without them linked together, you get the constitutional and legal mess we are in now.
Section 35 clearly states that the federal and provincial governments will recognize and affirm Aboriginal and Treaty Rights. Section 37 calls for several constitutional conferences to be called on Aboriginal matters with the intention that some kind of constitutional agreement would be hammered out between the federal and provincial governments and Indigenous Peoples. The conferences were held but no constitutional agreement was reached. The conferences failed.
It is apparent that the federal and provincial governments did not realize the international significance of these conferences and how they are directly linked to the right of Indigenous Peoples to self-determination. The Prime Minister and premiers back then thought if these conferences fail we could turn this matter over to the Supreme Court of Canada to decide. That is what is happening right now. That is the reason why Elsipogtog conflict happened and why the Tsilhqot’in Peoples will be before the Supreme Court of Canada in November.
The Supreme Court of Canada is not capable of dealing with the decolonization of Indigenous Peoples because it is through precedent dominated by legal concepts that are based on the British North America Act 1867. Self-determination in Canada is based upon creating a new constitutional based decision making process that recognizes and affirms Aboriginal and Treaty Rights. Recognition and affirmation of Aboriginal and Treaty Rights means that the colonial concept that only the federal and provincial governments can make law in our Indigenous territories is wrong.
Self-determination is an international right that “All Peoples” have in order to repudiate colonization. The first issue facing us is the dispossession of our lands under the BNA Act 1867. Canada and the Supreme Court of Canada are too tied up in a conflict of interest to achieve this. It is clear that in Elsipogtog and hundreds of other situations the establishment use the BNA Act 1867 to get injunctions to arrest our peoples. My daughters had to spend many months in jail over the Sun Peaks dispute here in Secwepemc Territory. The Sun Peaks expansion still has not been resolved.
It has not been resolved because there is no legitimate process to negotiate this matter. Even the courts on the idea of municipal status decided in favor of the BC government and Sun Peaks. Colonial oppression of being arrested, going to court and serving time in jail has kept my peoples from raising this dispute on the ground since 2008. Colonial oppression is the enforcement side of colonial dispossession. I am part of the “Defenders of the Land” and we are aware of this linkage from a bird’s eye view, because our network is based on activists who have been down this road before. Periodically we get together to talk over the struggle and plan to work together and help others who are on the front line now.
In fact the Defenders of the Land have made an agreement with Idle No More to work together. I do not want to share any specific details of this relationship other than say solidarity around “strong” not weak positions are critical to achieving self-determination. In this regard I believe the ideas of “reconciliation” is too premature because Canada and the provinces have not even recognized our rights. That was very clear at the front lines in Elsipogtog. Canada and the provinces were saying my way or the highway. That is not reconciliation.
I believe the legal notion of reconciliation is a soft sell for extinguishment. I know literally reconciliation has a different meaning but when talking about Indigenous issues around word definitions, things get really squirrely. I remember my dad was one of the first Indigenous leaders calling for Indian self-government but after the Department of Indian Affairs defined what that meant, my dad was against self-government at least the way Canada is imposing that idea on self-government. That warped policy is still being imposed now. Reconciliation in my mind means Canada and the provinces have to recognize and affirm our Aboriginal and Treaty Rights on the ground and a constitutional agreement on how this applies on the ground needs to be agreed to.
This would mean that certain decision-making matters and processes decided under section 91 and section 92 in Canada’s Constitution 1982 will be transferred to Indigenous Peoples governments as recognized and affirmed under section 35. Canada and the provinces need to make these adjustments. The colonial privilege of making 100% of all decisions became outdated when section 35 was added to Canada’s constitution in 1982.
In fact Indigenous leaders who are signing revenue sharing deals under federal and provincial laws are undermining Indigenous Peoples sovereignty and right to self-determination. Unfortunately you cannot have it both ways. You either want to be governed under federal and provincial law or you want to build a new Canada based on recognition and affirmation of Aboriginal and Treaty Rights. Recognition and affirmation of Aboriginal and Treaty Rights is based on our sovereignty as Indigenous Peoples. Our sovereignty is what defines us as a “Peoples” even though we live in Canada and it entitles us to self-determination under the United Nations.
I am going to go to Geneva, Switzerland in 2014 and 2015 when Canada has to appear before the United Nations Human Rights Committee. The question that the Human Right Committee asked Canada the last time they appeared before them was how they were applying Article 1 of the International Covenant on Civil and Political Rights to Indigenous Peoples. Article 1 is the provision that states, “All peoples have the right to self-determination”. Canada said that Indigenous Peoples exercised the right to self-determination as Canadians. That is wrong.
Land conflicts clearly demonstrate that we do not believe the BNA Act 1867 gave Canada and the provinces our land. The use of armed forces like the RCMP and the Canadian Army to colonially oppress our peoples and trample on our Aboriginal and Treat Rights clearly show we are not Canadians. The fact that there is this “persistent disparity” between Indigenous Peoples and the settlers show we are not Canadians. This message has to be gotten to the United Nations Human Rights Committee like we got that same message out when Trudeau and Chretien were patriating the Canadian Constitution before the House of Lords and House of Commons in Great Britain in 1981-82.
We need to demand that Canada fully address the issue of the application of Article 1 regarding Indigenous Peoples. We need to provide evidence of our colonization. We need provide evidence of how the Canada settler government dispossessed our peoples, how they are made us dependent on the Department of Indian Affairs and how the RCMP and Army are used to oppress us when we assert our sovereignty as Indigenous Peoples. We need to be clear that the only ones to achieve self-determination when the constitution was patriated in 1982 was the settler Canadians, because the constitutional conference on Aboriginal matters failed.
We need to be clear that when these constitutional conferences failed they proved that the Prime Minister and premiers were incapable of making compromises to their colonial powers and privileges and accommodating the self-determination of Indigenous Peoples. The failure of Canada to achieve successful constitution conferences transferred that responsibility to the United Nations Human Rights Committee to apply Article 1 of the UN International Covenant on Civil and Political Rights on self-determination to Indigenous Peoples.
Our sympathies and solidarity goes out to all front line strugglers from my family and all the Secwepemc Peoples who are ready to fight. I qualify this statement regarding my nation because I also know there are a few of my people who are part of the neo-colonial types. Nevertheless may the Creator give you courage through the difficult times you will be experiencing. Canada and the provinces have only one objective when they engage in colonial oppression and that is colonial rule, which means they will try and crush your spirit and your economic independence. Be strong. You are on the good side.