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Pipeline of Ignorance

March 16, 2016

By Bruce McIvor

In today’s paper the Calgary Herald laments that when it comes to the pipeline debate in Canada, Indigenous people, including Mohawk Kanesatake Grand Chief Serge Simon, have the audacity to assert an Indigenous order of government (“Oil-fighting Chief loses credibility”). It’s the Calgary Herald that lacks credibility, not the Grand Chief.

The question of whether Indigenous Peoples have jurisdiction to exercise governmental, decision-making authority was canvassed by the British Columbia Supreme Court in 2000 based on the provincial Liberal party’s challenge to the Nisga'a treaty. The Liberals argued the treaty was invalid because the Nisga’a had no independent legal authority to make a treaty with the federal and provincial governments.

The Court disagreed and in doing so came to fundamental conclusions important to all Indigenous Peoples. The Court held that Indigenous Peoples’ law-making authority pre-dates the arrival of Europeans, survived the assertion of Crown of sovereignty and is now likely protected by s. 35 of the Constitution.

According to the Court, it is a fallacy to assume that all law-making authority stems from the Constitution. Rather, the Constitution divides up the Crown’s jurisdiction. Indigenous jurisdiction exists independent of the Constitution.

Contrary to what the Calgary Herald may wish, it is not a question of whether Indigenous Peoples’ jurisdiction exists. The real question, and a pressing issue for all Canadians, is how to create space within the Canadian legal and political system to recognize and respect Indigenous law-making authority.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation.

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Comments
Virginia Hunter(1 year ago)
Although we have come a long way in educating the settler population about living in balance with this world, I would be reassured of this planets' healthy future if more steps were taken to keep the world healthy rather than bank accounts which will not sustain life if destruction is allowed to continue.

Glenn(1 year ago)
Bruce, very excellent articles as per usual.

One note I would like to make; Economic Development opportunities for First Nation in their traditional territories are rich in natural resource. This is the economic base of the First Nation, why is the environmental lobby pushing First Nations to shut down their economic development zones.

Those limited resources are Minerals and Forestry, and once the environmental lobby has succeeded in creating parks that eliminate all first nation control over their traditional lands and resources they would have completely decimated First Nation ability to harvest their resources. You realize trapping and hunting are not viable options for economic development.

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