Supreme Court’s colonial roots are showing

Two recent decisions from the Supreme Court of Canada — Clyde River v Petroleum Geo-Services Inc. and Chippewas of the Thames First Nation v Enbridge Pipelines Inc. — are being hailed as landmark cases on Indigenous peoples’ right to be consulted about projects that threaten to damage their traditional territories.

Under the UN Declaration on the Rights of Indigenous Peoples — which Canada claimed to fully endorse in 2016 — governments are required to obtain the free, prior, and informed consent of Indigenous peoples to projects affecting their lands and resources.

Canada’s highest court has acknowledged that “the doctrine of Aboriginal rights exists … because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land … as they had done for centuries.”

The idea that European colonizers were entitled to treat lands occupied by non-Europeans as terra nullius — land empty of Indigenous sovereigns — has now been internationally repudiated.

But “if Indigenous peoples had legitimate sovereignty when Europeans first arrived, how did the Crown legitimately acquire it?” asks eminent political anthropologist Michael Asch. “What, other than numbers and power, justifies Canada’s assertion of sovereignty and jurisdiction over the country’s vast territory? Why should Canada’s original inhabitants have to ask for rights to what was their land when non-Aboriginal people first arrived?”

Despite having previously recognized Indigenous societies’ long history on the land, however, the Supreme Court’s decisions in Clyde River and Chippewas of the Thames provide Indigenous nations with a hollow simulacrum of free, prior, and informed consent: many of the trappings, minus essential parts of the substance.

The court held that Indigenous communities must be included in consultations on projects implicating their lands and their rights — but that their opposition can be overridden, as long as written reasons are provided “to show that Aboriginal concerns were considered.”

And so, the Supreme Court ruled against the Chippewas of the Thames First Nation, which was trying to overturn the National Energy Board’s approval of modifications to an Enbridge pipeline that snakes across its traditional territories. The modifications will increase Line 9’s capacity by 25 per cent, reverse its direction of flow, and allow it to carry heavy crude oil — elevating the risk of a spill to 90 per cent, according to energy safety expert Richard Kuprewicz.

The pipeline was originally constructed 40 years ago, without consulting Indigenous nations living along its route — but the court’s holding that present-day consultation “is not the vehicle to address historical grievances” permits corporations to continue profiting from past injustices.

And its holding that the government can rely on the NEB (which as of 2015 had never blocked a development project on Indigenous territory) to fulfil its duty to consult facilitates further incursions on Indigenous land in the name of economic benefit: a perpetuation of colonialism’s underlying logic.

Unlike the Chippewas of the Thames, the Inuit of Clyde River succeeded at the Supreme Court, because the NEB decision-making in their case lacked even the semblance of real consultation. Information documents, for example, were provided in a language and format inaccessible to the community. The process was so flawed that dismissing it sets “an extremely low bar” for what is acceptable, comment law professors Tracey Lindberg and Angela Cameron.

Clyde River and Chippewas of the Thames continue the Supreme Court’s tradition of adjudicating on Aboriginal rights in a framework that entrenches Indigenous dispossession.

The groundbreaking judgment in Tsilhqot’in Nation v British Columbia in 2014, for example, was the first time the Supreme Court recognized an Indigenous nation’s title to its territory. And yet, the court still maintained that “at the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in [British Columbia].”

As Anishinaabe legal scholar John Borrows observes, this “retroactively affirms the Crown’s appropriation of Indigenous legal interests without their knowledge or consent. In most other contexts, this would be called stealing.”

In cases like Tsilhqot’in, Clyde River, and Chippewas of the Thames, the Supreme Court has repeatedly stated that the goal of its Aboriginal rights jurisprudence is reconciliation between Canada and the land’s Indigenous nations. But rather than illuminating a path toward an equitable relationship, the court’s reasoning reveals a constricted vision of justice: a vision that enables continuing despoliation of Indigenous lands, instead of providing a strong check against it.

What kind of reconciliation is possible when the colonial wrong is still ongoing?

Azeezah Kanji is a legal analyst based in Toronto. She writes in the Star every other Thursday.

[Top photo: Jerry Natanine, community leader and former mayor of Clyde River, speaks during a press conference on Parliament Hill following a ruling at the Supreme Court of Canada in Ottawa on July 26. Clyde River's legal counsel Nader Hasan looks on.  (SEAN KILPATRICK / THE CANADIAN PRESS)  ]