The Case for Denying Indigenous Rights

By Bruce McIvor

Denial is cumulative.

It has a beginning. At a certain time in a certain place a decision is made to ignore someone else’s existing rights. There’s resistance. The true rights-holders fight back. But advantage is taken. Protest is suppressed. Wealth and power grow. For the dominant society, as denials accumulate injustice fades from sight. The status quo emerges. Calls for justice are denigrated and ridiculed.

Resistance persists.

Prodded by the children of those who witnessed denial at its conception, the courts assume the role of archaeologists. Layer upon layer of indignity is scraped away. The underlying lie is revealed.

A choice emerges.

Acknowledge the original wrong, apologize and commit to making amends or double-down on denial. As the excavation work continues and politicians slowly respond to the colonizing society’s unease with the basis for its comfort and privilege, denial’s voice becomes increasingly apocalyptic.

Writing in the Globe & Mail, Tom Flanagan, a former Harper advisor, recently declared that the new Liberal federal government’s intention to implement the United Nations Declaration of Indigenous Peoples has “great potential for mischief….”

According to Flanagan, recognizing the UNDRIP principle of free, prior and informed consent is a recipe for economic ruin because Indigenous land rights in Canada are poorly defined, some Indigenous People might consider consent to be a veto and because without the threat of expropriation Canadian governments will have a hard time building long-distance corridor projects (e.g. pipelines, railways, highways and power lines).

Flanagan’s message is clear: implementing UNDRIP is dangerous because it is contrary to Canada’s and the provinces’ long established policy of denying Aboriginal title, rights and Treaty rights.

The Fraser Institute, which describes itself as communicating the effects of government policies and entrepreneurship on the well-being of Canadians and is described by others as a propaganda outfit for “well-fed libertarians, conservatives and reactionaries” has also warned of economic disaster on the horizon.

In a report ominously entitled “Economic Development in Jeopardy?”, it warns that the recent Saik’uz decision from the British Columbia Court of Appeal threatens to open the door for Aboriginal title litigation against private companies.

The report’s primary complaint is that the Court’s decision extends to First Nations the same legal right that has always been enjoyed by corporations and non-Indigenous people: they can sue others based on an alleged interest in land but have to prove the interest as part of the trial.

Denial’s argument is simple.

Having based a national economy on the oppression of Indigenous Peoples’ legal rights, the consequences of changing course are potentially catastrophic. Better to damn the torpedoes and count on the resurgence of the denial agenda. Or, at the very least, work to impede the re-establishment of Indigenous rights and jurisdiction until the dams and pipelines are built, the oil extracted and the rivers and lakes destroyed.

The case for denying Indigenous rights rests on colonialism’s inertia. Its strength is fear and self-interest. Its weakness is a growing awareness that while Canada preaches the rule of law, justice and fairness abroad, the country’s wealth and privilege originates with an overarching historic wrong.

Denial has a beginning. Hopefully, it also has an end.

Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.

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