The IBA Calls On Canada To Assist With The Protection Of Indigenous Laws And To Secure Space For The Development And Practice Of Such Laws

THE IBA CALLS ON CANADA TO ASSIST WITH THE PROTECTION OF INDIGENOUS LAWS AND TO SECURE SPACE FOR THE DEVELOPMENT AND PRACTICE OF SUCH LAWS

OTTAWA, ON – The Indigenous Bar Association in Canada (the “IBA”) calls upon the federal and provincial Crown to work in partnership with Indigenous Peoples to undertake the challenging task of reshaping the rule of law so it respects and aligns with Indigenous legal traditions and laws. This is urgently needed as it relates to decisions and actions affecting Indigenous Peoples’ lands and waters.

The IBA is a national non-profit association comprised of Indigenous lawyers (practicing and non-practicing), legal academics and scholars, articling clerks and law students, including graduate and post-graduate law students. Our mandate is to promote the advancement of legal and social justice for Indigenous Peoples in Canada and the reform of laws and policies affecting Indigenous Peoples. The IBA respects the self-determination of Indigenous Peoples; we cannot speak on behalf of the Wet’suwet’en, nor will we attempt to do so.

However, the dispute surrounding the Wet’suwet’en Nation and the Coastal Gaslink Project has exposed a crisis in the rule of law in Canada. This crisis is resonating throughout the country and demands a joint effort by Canada and Indigenous Peoples to address. The rule of law is a foundational principle of Canada. It holds that the law applies equally to everyone and no one is above the law. The events surrounding the Wet’suwet’en Nation, and the responses from within Indigenous and non-Indigenous communities across the country, have raised two fundamental questions for Canada about the rule of law: whose law? And is it, in fact, being applied equally when it comes to Indigenous Peoples?

Canada is a multi-juridical country, founded upon strong traditions of Indigenous laws and legal orders, and more recently, the common and civil law. Yet, Indigenous laws and legal orders have historically and continue to receive very little recognition or respect within the Canadian legal landscape, despite continued recognition by Courts that they have survived the assertion of Canadian sovereignty (for example see paras. 8 and 9 of Pastion v Dene Tha’ First Nation, 2018 FC 648). Our legal system is lacking as a result of the continued suppression and outright denial of Indigenous laws within this landscape. Where is the recognition for Wet’suwet’en laws and processes for resolving disputes of this nature? Where is the space for these laws and processes to operate free from outside interference and influence? A concerted effort at re-envisioning the rule of law to ensure that Indigenous laws, legal traditions, protocols and processes are included as an integral part of the rule of law is clearly required and long overdue.

Recent events are symptomatic of a much larger looming crises surrounding the rule of law. For Indigenous Peoples, federal and provincial laws on their own do not carry the force needed to secure longevity and legitimacy of the rule of law within Indigenous communities. Law enforcement agencies in Canada have been unresponsive to the alarming rates of violence inflicted upon Indigenous Peoples, particularly women, girls and two-spirited people across the country, yet are quick to act against the Wet’suwet’en land defenders and matriarchs. The hypocrisy of the arbitrary application of law enforcement when it comes to Indigenous Peoples in Canada undermines Indigenous Peoples trust in the rule of law in Canada.

Canada’s legal institutions must be accountable and receptive to Indigenous Peoples and their unique lived experiences. As stated by the Supreme Court of Canada in the Quebec Secession Reference,

to be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of and accountability to the people, through public institutions created under the Constitution.

Canada must commit itself to restore the legitimacy of its legal institutions with Indigenous communities, and Canada as a whole. The Wet’suwet’en dispute highlights the need for Canada to take immediate action to re-envision the rule of law to create space for the operation and respect of Indigenous laws and legal orders. In doing so, Canada must remember the honour of the crown and the United Nations Declaration on the Rights of Indigenous Peoples requires that work to implement these processes must be in partnership with Indigenous rights holders. As Chief Justice Lamer stated in Delgamuukw—a case brought by the Wet’suwet’en—“Let’s face it, we are all here to stay.” It is time that the rule of law in Canada reflects this reality.

For more information please contact IBA President Drew Lafond (dlafond@indigenousbar.ca) or visit www.indigenousbar.ca.