This Changes Everything

by Naomi Klein

  The Canadian Constitution and the Canadian Charter of Rights and Freedoms acknowledge and offer protection to “aboriginal rights,” including treaty rights, the right to self-government, and the right to practice traditional culture and customs. There was, however, a widespread perception among Canadians that treaties represented agreements to fully surrender large portions of lands in exchange for the provision of public services and designated rights on much smaller reserves. Many Canadians also assumed that in the lands not covered by any treaty (which is a great deal of the country, 80 percent of British Columbia alone), non-Natives could pretty much do what they wished with the natural resources. First Nations had rights on their reserves, but if they once had rights off them as well, they had surely lost them by attrition over the years. Finders keepers sort of thing, or so the thinking went.5

  All of this was turned upside down in the late 1990s when the Supreme Court of Canada handed down a series of landmark decisions in cases designed to test the limits of Aboriginal title and treaty rights. First came Delgamuukw v. British Columbia in 1997, which ruled that in those large parts of B.C. that were not covered by any treaty, Aboriginal title over that land had never been extinguished and still needed to be settled. This was interpreted by many First Nations as an assertion that they still had full rights to that land, including the right to fish, hunt, and gather there. Chelsea Vowel, a Montréal-based Métis educator and Indigenous legal scholar, explains the shockwave caused by the decision. “One day, Canadians woke up to a legal reality in which millions of acres of land were recognized as never having been acquired by the Crown,” which would have “immediate implications for other areas of the country where no treaties ceding land ownership were ever signed.”6

  Two years later, in 1999, the ruling known as the Marshall decision affirmed that when the Mi’kmaq, Maliseet, and Passamaquoddy First Nations, largely based in New Brunswick and Nova Scotia, signed “peace and friendship” treaties with the British Crown in 1760 and 1761, they did not—as so many Canadians then assumed—agree to give up rights to their ancestral lands. Rather they were agreeing to share them with settlers on the condition that the First Nations could continue to use those lands for traditional activities like fishing, trading, and ceremony. The case was sparked by a single fisherman, Donald Marshall Jr., catching eels out of season and without a license; the court ruled that it was within the rights of the Mi’kmaq and Maliseet to fish year-round enough to earn a “moderate livelihood” where their ancestors had fished, exempting them from many of the rules set by the federal government for the non-Native fishing fleet.7

  Many other North American treaties contained similar resource-sharing provisions. Treaty 6, for instance, which covers large parts of the Alberta tar sands region, contains clear language stating that “Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered”—in other words, they surrendered only their exclusive rights to the territory and agreed that the land would be used by both parties, with settlers and Indigenous peoples pursuing their interests in parallel.8

  But any parallel, peaceful coexistence is plainly impossible if one party is irrevocably altering and poisoning that shared land. And indeed, though it is not written in the text of the treaty, First Nations elders living in this region contend that Indigenous negotiators gave permission for the land to be used by settlers only “to the depth of a plow”—considerably less than the cavernous holes being dug there today. In the agreements that created modern-day North America such land-sharing provisions form the basis of most major treaties.

  In Canada, the period after the Supreme Court decisions was a tumultuous one. Federal and provincial governments did little or nothing to protect the rights that the judges had affirmed, so it fell to Indigenous people to go out on the land and water and assert them—to fish, hunt, log, and build ceremonial structures, often without state permission. The backlash was swift. Across the country non-Native fishers and hunters complained that the “Indians” were above the law, that they were going to empty the oceans and rivers of fish, take all the good game, destroy the woods, and on and on. (Never mind the uninterrupted record of reckless resource mismanagement by all levels of the Canadian government.)

  Tensions came to a head in the Mi’kmaq community of Burnt Church, New Brunswick. Enraged that the Marshall decision had empowered Mi’kmaq people to exercise their treaty rights and fish outside of government-approved seasons, mobs of non-Native fishermen launched a series of violent attacks on their Native neighbors. In what became known as the Burnt Church Crisis, thousands of Mi’kmaq lobster traps were destroyed, three fish-processing plants were ransacked, a ceremonial arbor was burned to the ground, and several Indigenous people were hospitalized after their truck was attacked. And it wasn’t just vigilante violence. As the months-long crisis wore on, government boats staffed with officials in riot gear rammed into Native fishing boats, sinking two vessels and forcing their crews to jump to safety in the water. The Mi’kmaq fishers did their best to defend themselves, with the help of the Mi’kmaq Warrior Society, but they were vastly outnumbered and an atmosphere of fear prevailed for years. The racism was so severe that at one point a non-Native fisherman put on a long-haired wig and performed a cartoonish “war dance” on the deck of his boat in front of delighted television crews.

  That was 2000. In 2013, a little more than an hour’s drive down the coast from Burnt Church, the same Mi’kmaq Warrior Society was once again in the news, this time because it had joined with the Elsipogtog First Nation to fend off the Texas company at the center of the province’s fracking showdown. But the mood and underlying dynamics could not have been more different. This time, over months of protest, the warriors helped to light a series of ceremonial sacred fires and explicitly invited the non-Native community to join them on the barricades “to ensure that the company cannot resume work to extract shale gas via fracking.” A statement explained, “This comes as part of a larger campaign that reunites Indigenous, Acadian & Anglo people.” (New Brunswick has a large French-speaking Acadian population, with its own historical tensions with the English-speaking majority.)9

  Many heeded the call and it was frequently noted that protests led by the Elsipogtog First Nation were remarkably diverse, drawing participants from all of the province’s ethnic groups, as well as from First Nations across the country. As one non-Native participant, Debbi Hauper, told a video crew, “It’s just a real sense of togetherness. We are united in what is most important. And I think we’re seeing more and more of government and industries’ methods of trying to separate us. And let’s face it, these methods have worked for decades. But I think we’re waking up.”10

  There were attempts to revive the old hatreds, to be sure. A police officer was overheard saying “Crown land belongs to the government, not to fucking Natives.” And after the conflict with police turned violent, New Brunswick premier David Alward observed, “Clearly, there are those who do not have the same values we share as New Brunswickers.” But the community stuck together and there were solidarity protests in dozens of cities and towns across the country: “This is not just a First Nations campaign. It’s actually quite a historic moment where all the major peoples of this province—English, French and Aboriginal—come together for a common cause,” said David Coon, head of the Green Party in New Brunswick. “This is really a question of justice. They want to protect their common lands, water and air from destruction.”11

  By then many in the province had come to understand that the Mi’kmaq’s rights to use their traditional lands and waters to hunt and fish—the same rights that had sparked race riots a dozen years earlier— represented the best hope for the majority of New Brunswickers who opposed fracking.12 And new tools were clearly required. Premier Alward had been a fracking skeptic before he was elected in 2010 but once in office, he promptly changed his tune, saying the revenue was needed to pay for social programs and to create jobs—the sort of flip flop
that breeds cynicism about representative democracy the world over.

  Indigenous rights, in contrast, are not dependent on the whims of politicians. The position of the Elsipogtog First Nation was that no treaty gave the Canadian government the authority to radically alter their ancestral lands. The right to hunt and fish, affirmed by the Marshall decision, was violated by industrial activity that threatened the fundamental health of the lands and waters (since what good is having the right to fish, for instance, when the water is polluted?). Gary Simon of the Elsipogtog First Nation explains, “I believe our treaties are the last line of defense to save the clean water for future generations.”13

  It’s the same position the Lummi have taken against the coal export terminal near Bellingham, Washington, arguing that the vast increase in tanker traffic in the Strait of Georgia, as well as the polluting impacts of coal dust, violates their treaty-protected right to fish those waters. (The Lower Elwha Klallam tribe in Washington State made similar points when its leaders fought to remove two dams on the Elwha River. They argued, successfully, that by interfering with salmon runs the dam violated their treaty rights to fish.) And when the U.S. State Department indicated, in February 2014, that it might soon be offering its blessing to the Keystone XL pipeline, members of the Lakota Nation immediately announced that they considered the pipeline construction illegal. As Paula Antoine, an employee of the Rosebud tribe’s land office, explained, because the pipeline passes through Lakota treaty-protected traditional territory, and very close to reservation land, “They aren’t recognizing our treaties, they are violating our treaty rights and our boundaries by going through there. Any ground disturbance around that proposed line will affect us.”14

  These rights are real and they are powerful, all the more so because many of the planet’s largest and most dangerous unexploded carbon bombs lie beneath lands and waters to which Indigenous peoples have legitimate legal claims. No one has more legal power to halt the reckless expansion of the tar sands than the First Nations living downstream whose treaty-protected hunting, fishing, and trapping grounds have already been fouled, just as no one has more legal power to halt the rush to drill under the Arctic’s melting ice than Inuit, Sami, and other northern Indigenous tribes whose livelihoods would be jeopardized by an offshore oil spill. Whether they are able to exercise those rights is another matter.

  This power was on display in January 2014 when a coalition of Alaskan Native tribes, who had joined forces with several large green groups, won a major court victory against Shell’s already scandal-plagued Arctic drilling adventures. Led by the Native village of Point Hope, the coalition argued that when the U.S. Interior Department handed out drilling permits to Shell and others in the Chukchi Sea, it failed to take into account the full risks, including the risks to Indigenous Inupiat ways of life, which are inextricably entwined with a healthy ocean. As Port Hope mayor Steve Oomittuk explained when the lawsuit was launched, his people “have hunted and depended on the animals that migrate through the Chukchi Sea for thousands of years. This is our garden, our identity, our livelihood. Without it we would not be who we are today. . . . We oppose any activity that will endanger our way of life and the animals that we greatly depend on.” Faith Gemmill, executive director of Resisting Environmental Destruction on Indigenous Lands, one of the groups behind the lawsuit, notes that for the Inupiat who rely on the Chukchi Sea, “you cannot separate environmental impacts from subsistence impacts, for they are the same.”15

  A federal appeals court ruled in the coalition’s favor, finding that the Department of the Interior’s risk assessments were based on estimates that were “arbitrary and capricious,” or presented “only the best case scenario for environmental harm.”16 Rather like the shoddy risk assessments that set the stage for BP’s Deepwater Horizon disaster.

  John Sauven, executive director of Greenpeace U.K., described the ruling as “a massive blow to Shell’s Arctic ambitions.” Indeed just days later, the company announced that it was putting its Arctic plans on indefinite hold. “This is a disappointing outcome, but the lack of a clear path forward means that I am not prepared to commit further resources for drilling in Alaska in 2014,” said Shell CEO Ben van Beurden. “We will look to relevant agencies and the Court to resolve their open legal issues as quickly as possible.” Without Indigenous groups raising the human rights stakes in this battle, it’s a victory that might never have taken place.17

  Worldwide, companies pushing for vast new coal mines and coal export terminals are increasingly being forced to similarly reckon with the unique legal powers held by Indigenous peoples. For instance, in Western Australia in 2013 the prospect of legal battles over native title was an important factor in derailing a planned $45 billion LNG (liquefied natural gas) processing plant and port, and though the state government remains determined to force gas infrastructure and fracking on the area, Indigenous groups are threatening to assert their traditional ownership and procedural rights in court. The same is true of communities facing coal bed methane development in New South Wales.18

  Meanwhile, several Indigenous groups in the Amazon have been steadfastly holding back the oil interests determined to sacrifice new swaths of the great forests, protecting both the carbon beneath the ground and the carbon-capturing trees and soil above those oil and gas deposits. They have asserted their land rights with increasing success at the Inter-American Court of Human Rights, which has sided with Indigenous groups against governments in cases involving natural resource and territorial rights.19 And the U’wa, an isolated tribe in Colombia’s Andean cloud forests—where the tree canopy is perpetually shrouded in mist—have made history by resisting repeated attempts by oil giants to drill in their territory, insisting that stealing the oil beneath the earth would bring about the tribe’s destruction.(Though some limited drilling has taken place.)

  As the Indigenous rights movement gains strength globally, huge advances are being made in recognizing the legitimacy of these claims. Most significant was the United Nations Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly in September 2007 after 143 member states voted in its favor (the four opposing votes—United States, Canada, Australia, and New Zealand—would each, under domestic pressure, eventually endorse it as well). The declaration states that, “Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources.” And further that they have “the right to redress” for the lands that “have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.” Some countries have even taken the step of recognizing these rights in revised constitutions. Bolivia’s constitution, approved by voters in 2009, states that Indigenous peoples “are guaranteed the right to prior consent: obligatory consultation by the government, acting in good faith and in agreement, prior to the exploitation of non-renewable natural resources in the territory they inhabit.” A huge, hard-won legal victory.20

  Might vs. Rights

  And yet despite growing recognition of these rights, there remains a tremendous gap between what governments say (and sign) and what they do—and there is no guarantee of winning when these rights are tested in court. Even in countries with enlightened laws as in Bolivia and Ecuador, the state still pushes ahead with extractive projects without the consent of the Indigenous people who rely on those lands.21 And in Canada, the United States, and Australia, these rights are not only ignored, but Indigenous people know that if they try to physically stop extractive projects that are clearly illegal, they will in all likelihood find themselves on the wrong side of a can of pepper spray—or the barrel of a gun. And while the lawyers argue the intricacies of land title in court, buzzing chainsaws proceed to topple trees that are four times as old as our countries, and toxic fracking fluids seep into the groundwater.

  The reason industry can get away with this has little to do with what is legal and everything to do with raw political pow
er: isolated, often impoverished Indigenous peoples generally lack the monetary resources and social clout to enforce their rights, and anyway, the police are controlled by the state. Moreover the costs of taking on multinational extractive companies in court are enormous. For instance in the landmark “Rainforest Chernobyl” case in which Ecuador’s highest court ordered Chevron to pay $9.5 billion in damages, a company spokesman famously said: “We’re going to fight this until hell freezes over—and then we’ll fight it out on the ice.” (And indeed, the fight still drags on.)22

  I was struck by this profound imbalance when I traveled to the territory of the Beaver Lake Cree Nation in northern Alberta, a community that is in the midst of one of the highest-stakes legal battles in the tar sands. In 2008, the band filed a historic lawsuit charging that by allowing its traditional territories to be turned into a latticework of oil and gas infrastructure, and by poisoning and driving away the local wildlife, the provincial and federal governments, as well as the British Crown, had infringed no fewer than fifteen thousand times on the First Nation’s treaty rights to continue to hunt, fish, and trap on their territory.23 What set the case apart was that it was not about one particular infringement, but an entire model of poisonous, extractive development, essentially arguing that this model itself constituted a grave treaty violation.

  “The Governments of Canada and Alberta have made a lot of promises to our people and we intend to see those promises kept,” said Al Lameman, the formidable chief of the Beaver Lake Cree Nation at the time the lawsuit was filed (Lameman had made history before, filing some of the first Indigenous human rights challenges against the Canadian government). Against the odds, the case has proceeded through the Canadian court system, and in March 2012 an Alberta court flatly rejected government efforts to have the case dismissed as “frivolous,” an “abuse of the Court’s process,” and “unmanageable.”24