Indigenous Rights and the Rule of Law
Examination of two 2020 confrontations involving Indigenous rights in Canada, focusing on the Caledonia land dispute and competing interpretations of the rule of law.
Key Concepts
- The rule of law as a pillar of democratic governance
- Tension between Canadian state authority and Indigenous sovereignty claims
- Competing interpretations of whose “rule of law” should prevail
- Civil disobedience as a legitimate challenge to unjust laws
- Historical treaty rights and their modern implications
Two 2020 Confrontations
1. Nova Scotia Fishing Dispute
- R. v. Marshall (1999): Supreme Court confirmed Indigenous treaty right to fish outside permitted season limits
- Tensions erupted into violence in October 2020
- Non-Indigenous fishers claimed out-of-season Indigenous lobster fishing jeopardized commercial fishery viability
- Property owned by Indigenous fishers was set on fire
2. Caledonia Land Dispute (Main Focus)
- Location: Near Caledonia, Ontario (south of Hamilton)
- Roots extend back to before Confederation
- 2006: Six Nations protesters occupied a partially-completed housing development
- Claim: Historical right to land never extinguished by treaty or consent
- Ongoing: Violence, arrests, police stand-offs, court injunctions, negotiations with Ontario and federal governments
- Conflict remains unresolved (as of October 2020)
Definitions of the Rule of Law
United Nations Definition
A principle of governance in which all persons, institutions, and entities (including the State) are:
- Accountable to publicly promulgated laws
- Equally enforced
- Independently adjudicated
- Consistent with international human rights norms
Supreme Court of Canada (1998 Quebec Secession Reference)
The rule of law:
- Provides citizens a stable, predictable, and ordered society
- Shields individuals from arbitrary state action
Stanford Encyclopedia of Philosophy
Comprises formal and procedural principles:
- Formal: Generality, clarity, publicity, stability, prospectivity of norms
- Procedural: Processes for administration, independent courts and judiciary
- Citizens must respect and comply with legal norms, even when they disagree
- Law should be the same for everyone
- No one is above the law
Constitution Act, 1982 (Preamble)
“Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”
Exam Alert
Be able to articulate multiple definitions of the rule of law and explain how they can come into conflict with Indigenous sovereignty claims.
The Six Nations Perspective
Indigenous protesters explicitly rejected Canadian legal authority:
Six Nations Leader
“Ontario Provincial Police officers mean nothing to us. We are governed only by the Great Law.”
On Court Injunctions
“That’s the Canadian court system, that’s not us. That just has no bearing on why we are here.”
On Sovereignty
“What part of WE ARE NOT CANADIAN, is it that they don’t understand?… The laws of Canada do not apply. We are a sovereign nation.”
Laura DeVries’ Analysis (from Conflict in Caledonia)
- For Canada: Six Nations flags and protests = direct action against developers and Canadian laws
- For Six Nations: Continued building permits = denial of nationhood, law, and land rights
- The rule of law means something different to people who view the laws as illegitimate
Two Competing Views on the Rule of Law
Traditional View (Alan Borovoy)
- Alan Borovoy: General Counsel, Canadian Civil Liberties Association (1968-2009)
- After the 1990 Oka Crisis, he spoke at law schools
- Found it “shocking and dangerous” that law students believed Mohawk people were right to take up arms against Canadian state authority
- Represents a traditional understanding: Rule of law must be respected in a democracy
Progressive/Revisionist View (David Dyzenhaus)
- Professor of Law and Philosophy, University of Toronto
- Speaking on protests against Coastal GasLink Pipeline in BC:
- Acts of lawbreaking can be consistent with rule of law if they constitute civil disobedience
- Civil disobedience: Disobedience to particular laws to alert public and authorities to injustice
- Argument: The Canadian state is not living up to the rule of law by enforcing “settler-colonial rules” and disrespecting Crown commitments
Key Question
Whose understanding of the rule of law should prevail when Indigenous claims to sovereignty clash with Canadian state authority?
The Central Tension
| Canadian State Perspective | Indigenous Sovereignty Perspective |
|---|---|
| All persons subject to Canadian law | Indigenous nations are sovereign, not subject to Canadian law |
| Courts have jurisdiction | Canadian courts have no bearing on Indigenous land rights |
| Legal title under Canadian law is valid | Historical rights never extinguished by treaty |
| Rule of law requires compliance even when disagreeing | Laws built on colonial dispossession are illegitimate |
Definitions
Rule of Law A principle that all persons and institutions are accountable to laws that are publicly known, equally enforced, and independently adjudicated.
Civil Disobedience Deliberate, public violation of a law to highlight injustice and prompt legal or political change, while accepting the legal consequences.
Sovereignty Supreme authority within a territory; the right of a people to govern themselves without external interference.
Treaty Rights Rights held by Indigenous peoples as established in historical agreements with the Crown, recognized and affirmed under Section 35 of the Constitution Act, 1982.
R. v. Marshall (1999) Supreme Court decision affirming Mi’kmaq treaty right to fish for a moderate livelihood outside federal seasonal restrictions.