Indigenous Law, Consent, and Reconciliation – Transcript

Bruce McIvor - Indigenous Law

About This Episode

Porcupine Podcast Episode 8: Indigenous Law, Consent, and Reconciliation

Bruce McIvor, the Principal of First People’s Law sits down with Merrell-Ann and Michael to discuss different aspects of Indigenous law. They discuss questions like ‘what are the differences between a chief and a hereditary chief?’ and ‘What is Indigenous Law and how is it different from Aboriginal law?’

Listen to Episode 8 Indigenous Law, Consent, and Reconciliation and view the show notes here

Episode Introduction

Merrell-Ann Phare (00:05): This is Porcupine. I’m Merrell-Ann Phare.

Michael Miltenberger (00:07): And I’m Michael Miltenberger and we’re the hosts of the Porcupine Podcast.

Merrell-Ann Phare (00:10): Okay. So there’s this old joke that goes how do two porcupines hug?

Michael Miltenberger (00:14): Carefully.

Merrell-Ann Phare (00:14): And such is the story of reconciliation, at least so far. In this podcast series, we’re exploring reconciliation between Indigenous and non-Indigenous Canadians. We’re looking at its funny, educational, touching, and difficult aspects, and also its prickly parts.

Meet Bruce McIvor

Merrell-Ann Phare. (00:39): So we’re here today with Bruce McIvor and we are so lucky to be in conversation with him. Bruce is a very big deal. He is a partner, he’s actually the principal of what’s called First Peoples Law. [First People’s Law] is just a fantastic law firm in the country that advocates for the rights of Indigenous people. And it’s been doing this for a very long time. Not only that, he’s extremely smart. In addition to being a lawyer, he’s a historian. He’s got a PhD in environmental and Indigenous and Aboriginal law and also is a Fulbright Scholar. 

So again, we’re thrilled that he’s taking time to talk to us today. I’ve known him for a long time. He has a fabulous blog that every single week – and as anybody who writes a blog knows – it’s hard to keep up with them. Every single week he’s got stuff that comes out that’s cutting edge about Aboriginal law and stuff that’s happening in the country. And so, Bruce, we’re very happy to have you here today.

Bruce McIvor (01:37): Well, thank you very much. It’s a pleasure and I’m looking forward to talking about some really important topics here.

The Wet’suwet’en Conflict

Merrell-Ann Phare (01:48): Yeah. So how about if we just start with a couple. We want to talk to you in particularly about the Wet’suwet’en conflict. We know you’ve written about it in the last couple of weeks and that’s actually what prompted this. They were just excellent articles. But before we start, can we just break down some of the terms that are everywhere that are really significant? I think a lot of people don’t know what the difference is between these things and why does it matter? And so I’ll start with the very first one. What’s the difference between a hereditary chief and a chief. And, and why are we hearing those two different terms?

Bruce McIvor (02:29): Sure. that’s right. This is been talked about quite a bit, the last few weeks around Wet’suwet’en and the proposed pipeline. The main difference, and I’ll preface this by saying I’m definitely not an expert on, on Wet’suwet’en law. I know a little bit about Canadian law. And so that’s the viewpoint where I come from, but I think it’s how they fit together. When most Canadians talk about chiefs, they talk about chiefs under the Indian Act and the chief and council system. So that’s what they mean by chiefs. And that’s a system that was introduced through the federal government in the 19th century.

The hereditary chiefs, that’s a reference to a much older, well established traditional Indigenous governance system that predates the Indian Act, predates Canada. The term hereditary is actually probably not the best way to be thinking of it. When we think of hereditary, we think, Oh, it’s passed down through bloodlines. Once you start looking into how the Wet’suwet’en system and their neighbour’s works, it doesn’t work like that. But mainly hereditary chief means a leader folks, person designated by members through their own traditional governance.

Chosen to Lead by the Community

Merrell-Ann Phare (04:15): So it can, it doesn’t necessarily mean in the Western way of being non-democratic or it’s through a decision making process.

Bruce McIvor (04:25): That’s right, right. It’s not an autocrat imposing their will on the populace and passing it down to their children. That’s not the hereditary chief system. It is from what I know know about it, and I’m definitely not an expert on Wet’suwet’en law, it’s more that it’s a person who’s chosen that’s recognized as a leader by the community. Now, sometimes it can be passed down from parents to children. But if the child doesn’t fit that role and members decide that, the name and the position doesn’t necessarily go to the children of the former hereditary chief.

Indigenous Law vs Aboriginal Law vs Colonial Law

Merrell-Ann Phare (05:24): Okay. Thank you for that. And now the other one we wanted to get clarity on, just because it’s come up a lot in the newspaper, is the difference between the legal system that the hereditary chiefs operate under, their traditional laws or what are Indigenous laws. Then also there’s a field of law called Aboriginal law. Then there’s also the colonial law, which some people call Western law. If you could, could you explain what the differences between those are? And I think that maybe the clash of those is – or the competition or the overlap of those laws might be at the heart of this conflict. But can you tell me, is that – am I right about that? Or how is that playing out here?

Bruce McIvor (06:15): Yeah, thanks. That’s a very important point. And it’s one, that’s become a lot more of a topic in the last few years. I remember a couple years ago, I began getting invitations to in Indigenous law conferences. And my first thought was, why are they inviting me to this? I don’t know anything about Indigenous law. I know a fair amount about Aboriginal law, which from my perspective – and I think a lot of people that do the same kind of work that I do – that’s the law of the colonizer that’s Canadian law. That’s the Canadian constitution. That’s the Indian Act. And that’s the different level of courts, their decisions. That’s quote Aboriginal law.

Indigenous law is a different thing. There’s not one in Indigenous law, different Indigenous peoples across country have their own laws. And just like with the traditional governance system, those laws existed and predate the colonization of what we now refer to as Canada. So when people are talking about Indigenous law, they’re talking about Indigenous peoples’ own laws. And they’re different, of course, all depending who you’re talking to and who you’re dealing with.

The Wet’suwet’en on the West coast have their own laws. I have clients on the East coast, the Miꞌgmaq, they have their own Indigenous laws my Anishinaabe clients, Nakota, Cree. It goes on and on and on there’s many different Indigenous legal systems.

Now, the colonial law, that’s not one that personally I deal with as much when being in BC and doing a lot of work in BC. When we talk about colonial law her, at least we talk about the laws that were passed before BC became a province and part of the Canadian confederation. There’s the colonialist law and that’s the law that surrounds us here today. That’s the colonizers’ law. And it’s really is really important to these things, separate that Aboriginal law is a different thing.

Merrell-Ann Phare (08:56): It’s like a sub I guess. Aboriginal law too. For most people who are non-lawyers, you would say Aboriginal law is just the subset of law that is Canada’s law really?

Bruce McIvor (09:06): It’s Canadian-made law that addresses Indigenous issues. So whether it’s the common law or whether it’s provincial or federal statutes.

Breaking Down the Cause of the Wet’suwet’en Conflict

Merrell-Ann Phare (09:22): And so is that, is it, what is it the heart of the Wet’suwet’en conflict? Is it a clash of those laws? Or is it a conflict between the desire for resource development or environmental protection? Or it seems like in some ways it might be all of those things. A clash of the power system between hereditary chiefs and Indian Act chiefs? Like, how would you break this down and to say, what’s the heart of what’s going on here?

Bruce McIvor (09:53): Well that’s a good question. It is a very complicated situation. I think that’s why it’s attracted so much interest and has become such a focal point for Indigenous and non-Indigenous people across the country. At the heart of it, it’s about who gets to decide how the land should be used. And this is a fundamental question, not just in BC, but across the country that Indigenous peoples deal with on a daily basis. Who gets to decide, how their lands should be used.

Who Gets to Decide?

The Pipeline is Not a Black and White Situation.

And in the particular Wet’suwet’en situation, the flashpoint has become a pipeline. And who gets to decide whether the pipeline goes through this particular part of Wet’suwet’en territory. It’s important to keep in mind on this, that the hereditary chiefs aren’t simply opposed to the pipeline, full stop. They’ve suggested an alternative route through their territory for the pipeline. So it would be wrong just to think this as a black and white situation pipelines or no pipelines. I think fundamentally…

Merrell-Ann Phare (11:12): Boy, that point doesn’t make it into the news very often.

Bruce McIvor (11:15): It doesn’t. It’s an important point because when it comes to who gets to decide this how you do that, it’s important to have the conversation with Indigenous people. I tell government folk, industry people across the country this all the time. If you have a meaningful conversation that doesn’t have any pre-conditions, you can often find away for forward where it gets to a situation like this it’s when government or industry becomes intractable. They’ve decided how they want to build things where they want to build things. And we can talk about it in more detail as we go along. The law, doesn’t really encourage that meaningful conversation, right now. So the, the main question is who gets to decide how the land should be used. And that does become a conflict between Canadian law and Wet’suwet’en law.

How Can Reconciliation can Proceed When Talks Stall?

Lawyers as weapons vs Mediators

Michael Miltenberger (12:27): So I have a quick question for you, Bruce. I’ve been thinking about this reconciliation issue. It’s all about communication and getting to know people, meaningful conversations, as you say. In my history with politics and such, I’ve always noticed that when people stop talking and they turn to the lawyers, the talking stops and the litigating starts. And so the issue of getting reconciliation back into the conversation arena is a challenging one when positions are hard.

I was just wondering what your thoughts were about how, how that could happen. Cause I noticed for example, that I read that the clans haven’t met for over a generation and this latest issue has now inspired them to possibly get together, to start get their thinking clear and maybe their internal reconciliations sorted out to give them more ability to pivot to the government and industry with maybe a stronger voice.

Bruce McIvor (13:35): Yeah, it does become a very, a very complicated picture. Not that lawyers need defending, but I do tell my law students –

Michael Miltenberger (13:49): Sorry!

Bruce McIvor (13:52): – students at UBC, cause I teach constitutional law there. And one of the things that I tell them all the time is that if you really want to provide a useful, important service for your clients, it’s not just about zero sum games. It’s not just about confrontation. It’s about getting people together and finding the right conversation. And lawyers can play a really important role in doing that. And personally, that’s a big part of my work across country is trying to have the right conversations.

This one here, what it largely comes down to is who gets to decide. And so this often becomes a question of consent and you’ll hear in the news a lot Indigenous people don’t have the veto when it comes to the duty to consult, but that veto conversation from my perspective is a sign you’re just getting off on the wrong foot to begin with. If that’s the way government industry begin a conversation with Indigenous people, you don’t have the veto, you’re already having the wrong conversation. They should begin a conversation to the effect of what do we need to do to get your consent? And that, that ignites a very different conversation.

The Debate: Reconciliation as a Four Letter Word

Michael Miltenberger (15:24): As we talk about reconciliation, another issue came to mind, I’ve noticed with interest, the Prime Minister canceled his holidays and he’s held back using force going to stick with the diplomatic conversation, reconciliation approach, as opposed to the pressure I’m sure he’s getting from a lot of his advisors that you have to show who’s boss. You can’t give in. You have to assert your authority or you’ll somehow lose out in the broader equation of democracy. I was just wondering what your thoughts were about that approach, which is I think very refreshing to see?

Bruce McIvor (16:06): Yeah. The reconciliation debate. How do you do that? I can tell you for a lot of my clients, reconciliation and long before this confrontation over the pipeline, the word reconciliation had become a four letter word. Is that, that’s not really the conversation that they want and why that is – I can’t speak for my clients, but I can say from my view on this – it’s because it’s a conversation that doesn’t first begin with recognition. You can’t really have reconciliation unless you step back and have a fundamental recognition. And that’s where this has gone wrong with the Wet’suwet’en. That’s where it’s gone wrong across the country in a lot of situations.

Moving Forward Means Recognition and Aboriginal Title

The Wet’suwet’en, and this is defensible under Canadian law, not just their own law, deserve to have their interest in the land, recognized that it’s your land. In Canadian law we call it Aboriginal title land. If you began with that recognition, you’d have a very different conversation. Perhaps you would have one that would move towards some form of reconciliation, but if you don’t have recognition of the fundamental reality, that it’s Wet’suwet’en land. They never had made a treaty. They’ve never been conquered. They have a better interest in the land than the provincial crown has it’s really hard to move to any of meaningful reconciliation conversation.

What will it take to get to Meaningful Dialogue?

Michael Miltenberger (17:56): So is it an intractable – sorry – is it an intractable problem? Is it an intractable problem in your mind or can it be, can it be solved?

Bruce McIvor (18:09): It’s not intractable, it’s just so much fear, I think, from non-Indigenous people. So much vested interest. And we see this in my line of work all the time when you’re in court, doesn’t matter what level of court or particularly if you get to the Supreme Court of Canada, the court’s always concerned about what will the effect be if we decide this or we decide that and you’ll hear people that it will, you know, be the thin edge of the wedge, the sky will fall.

If you decide here in BC and for Canada, you have a perfect example that it’s not the end of the world if you recognize Aboriginal title, we have the 2014 Supreme Court of Canada Tsilhqot’in decision, the first declaration of Aboriginal title. And what are they doing now? They’re having a proper conversation with the federal and provincial government. So it’s not intractable, but until the provincial government abandons its position of denial, you’re not going to get to the real meaningful dialogue that underpins true reconciliation.

How do You Get Beyond the Rhetoric and the Policy?

Merrell-Ann Phare (19:35): So, Bruce, what would that look like, then if the federal and provincial government were going to do it correctly in the respectful way that that creates the space for the reconciliation conversation, what would they have to do differently in terms of the recognition of, of rights? Because my understanding is the feds currently have a recognition of rights policy that says, we’re not going to make you fight it out in court. We recognize, we recognize Indigenous rights, and yet it’s still, we still are in this challenge. And so can you explain what would, what would, what would it actually look like if they broach the conversation the correct way?

Bruce McIvor (20:19): So this is, this is really where I think some of the most interesting work is going on. How do you begin that conversation? How do you get beyond the rhetoric and the policy? Which, which a lot of Indigenous people would say that may be the policy, but we’re living it here on the ground and we don’t see it. So one of approach, and we’ve been working on this with a few different clients across the country is to emphasize the importance of making a statement about changing the conversation.

One thing you can do is you can have a recognition of agreement, so you can have a formal agreement that the feds or provincial or both sign with Indigenous people that basically says from this point forward, we won’t deny the existence of your title and rights any longer. This is stopping right now. And I, I had one client, we were talking to this about this and said, well, we don’t need them to recognize our rights, they exist. I guess what we would call this, this agreement, Bruce, is we’re not going to deny them anymore type of agreement.

But that’s very important, that would be important first step. Because then you change the conversation and then you, you can work towards implementing what that means in subsequent agreements. So that’s, there’s that fits well with what the, from what I know the Tsilhqot’in have been doing with the provincial and federal government, the 2014 declaration from the Supreme Court was basically one that says, Tsilhqot’in Aboriginal title exists, now figure out what you’re going to do about it. And they’ve been in negotiations on that basis.

Doing Things Differently: Changing The Status Quo

Michael Miltenberger (22:29): How do you get past, how do you get past entrenched bureaucracies and institutions that have been, have their foundation back in the last century and beyond where they’re very, very set on this adversarial approach? And it’s one we deal with all the time and it’s politicians come in, they have 1,460 days, the bureaucracy goes on for, for generations. How do you, how would you see dealing with real, obstacle?

Bruce McIvor (22:58): That is a real problem. I’ve written about this before, you can have politicians making all kinds of pronouncements of what they’re going to do differently, but there’s an inertia in their bureaucracy. There are a lot of good civil servants out there that want to do the right thing, but there’s a real inertia. It’s hard to change the, the, the path of the ship. I thought about this a few times. One of the things is it would be helpful if there was some, there were some kind of penalties out there for when government doesn’t follow it’s own laws. That’s one of the things a lot of Indigenous people will say, we’ll go off to court, we’ll win a case. What kind of penalty is there? None. No kind of penalty.

Merrell-Ann Phare (23:59): Well, and Bruce, it’s still ironic. I mean, your clients must just roll their eyes when you then see in the paper that how important it is to enforce the rule of law, right? The rule of law. When the court comes down with an injunction to say, you can’t blockade anymore, the RCMP must be sent in because it’s important. And I heard a federal minister say it’s important to enforce the rule of law, but, but only in some circumstances, I could take it as the subtext.

Michael Miltenberger (24:29): It’s even more frustrating than that. They’ll, up North they’ve settled land claims, sign agreements. And then the the claimant groups have spent the next 20 years fighting with the government to implement the agreement that they just agreed to because they’re arguing over what they said, that is in the agreement.

Bruce McIvor (24:49): Exactly. And that happens all too often. I think one of the possibilities, and this has been floated a few different times is have different alternative dispute resolution mechanisms, venues short of having to go to court. Have some kind of tribunal that has the confidence of Indigenous people that Indigenous people can see themselves reflected in the makeup of the tribunal, that has powers that it can exercise short of having to go to court.

This is one of, one of the great ironies is that you’ll have a lot of politicians, Canadians be very proud of how Aboriginal law has developed in Canada. These are all the fundamental principles, when you step back and think who’s borne the weight, borne the responsibility for that? It’s Indigenous people. They’ve borne the cost. It’s not government or industry going off to court filing these cases. It’s Indigenous people, putting their resources iandn time in to it.

And at the end of the day, and we saw this with Trans Mountain pipeline decision a couple of weeks ago, ironically seeing the law develop in a way that at the end of the day, they have very little latitude to appose a project. So finding a different way to have a, respectful way to resolve these things short of a Canadian court would very helpful.

Merrell-Ann Phare (26:45): Bruce, can I say, when you talk about finding that conversation, you’re, you’ve you operate out of BC and yes, there’s very important legal decisions there and and title, but in, would you say that that is possible or can it be applied in other parts of the country? I know you’re Métis or Red River Métis and also there’s like treaty territory, First Nation treaty territory, all through most of the rest of Canada. Is that play out in those parts as well?

Bruce McIvor (27:16): It definitely can. I live in BC, but I work across the country, coast to coast and probably more than half of my work right now is treaty work. Not the modern day treaties, but so-called historical Treaties: Eight, Four, Six, Three, Nine. So there is a real possibility if you have people on the other side of the table that want to have a real conversations, you can see this happening.

We’ve had clients a couple of weeks ago, sign up real path-breaking deal with the provincial government in Ontario regarding the review and environmental assessment for twinning part of the Trans Canada Highway. And it was pretty ironic because that came out at about the same time that the RCMP was massing to invade Wet’suwet’en territory. And in that particular Ontario situation, it’s Treaty Three.

But but the provincial government there for whatever the reasons saw that the way forward here was to work with the Indigenous people, that this was going to lead to, to the best outcome. So you can definitely do this elsewhere, but a lot of the time, it really depends on who are the provincial parties on the opposite side.

Michael Miltenberger (29:02): Well, it’s interesting to, to think back, I sat around the federal provincial territorial tables, and I don’t think there’s ever been a time when the governments are on the table have called out the RCMP on each other. They’ve always worked, worked it out. They, they have court cases, but most of the time they have hard discussions, there’s compromising, but it’s cooperative federalism that stays away from that next step that you’ve been talking about. But with Indigenous people, they’re much quicker to resort to the, the ultimate response, which is the physical response.

Bruce McIvor (29:39): Yeah. That’s such an important point. There’s that history of colonialism. It’s not part of the past, it’s part of it’s part of the current day mentality. That’s what you’ve seen so much from the politicians the last few weeks and from some, not all, but some of the non-Indigenous public. They fall back on these tropes. They fall back on these ways of thinking that somehow it’s an Indigenous problem. And that they’re getting in the way. They don’t see that this is a fundamental aspect of Canadian law is that you respect minority rights. That’s what you do. And you particularly when they’ve been constitutionalized, when they’re part of the Canadian constitution.

People will say ‘follow the rule of law’ without any kind of historical context. Just that phrase itself becomes a type of weapon that gets used against Indigenous people. And it’s not hard for anyone to think back of other examples where people can say, oh, we were just following the rule of law. So Indigenous people themselves can think, yeah, it was the rule of law. We couldn’t practice the potlatch that was a rule of law. Couldn’t hire a lawyer that was the rule of law. And you think about non-Indigenous examples, women couldn’t vote, that was the rule of law. So many suffragettes were handcuffed, hauled off jail, that was the rule of law. Um so it’s, it’s important for people to, don’t just have those knee-jerk reactions, but think about what the fundamental principles and values are.

Michael Miltenberger (31:41): Which I think gets back to the, the whole issue of reconciliation and conversation. And if you’re stopped talking, then it’s hard to, hard to move forward on reconciliation. And I don’t know if you can actually put reconciliation and litigation in the same breath, it’s like oil and water.

Bruce McIvor (32:02): Yeah. I was I gave a presentation at a Canadian Senate committee hearing a couple of years ago. The senators around the table were asking me about reconciliation. And I told them where it’s difficult is because you’re trying to reconcile a right with a wrong. If you think about it, because the right is the underlying right that Indigenous people have to their land, that they never gave up, they never extinguished.

You’re trying to reconcile that with what the courts politely called the Assertion of Crown Sovereignty, which is one way to refer to the discredited doctrine of discovery that somehow non-Indigenous people show up and through some type of magic, they acquire an interest in Indigenous land. And so that’s why reconciliation can be so difficult. [It] is because you’re trying to reconcile this right, the right to the land itself, with the wrong, which is somehow non-Indigenous people, provincial and federal governments acquired a superior interest in the land.

Merrell-Ann Phare (33:24): So Bruce, Michael and I have been involved in some discussions regarding the Truth and Reconciliation Commission Call to Action Number 46. [TRCC 46] is about the churches and well, the signatories to the residential school agreement, renouncing, repudiating, the doctrine of discovery.

And one of the conversations was about a fundamental fear on behalf of any of the crown governments that if you eliminate that kind of thinking, what you’re doing is you’re overturning the sovereignty of Canada that you somehow now eliminate Canada as a sovereign body here. You can’t, it gets back to this idea that you can only have one decision maker. We can’t make, when you talk about who gets to decide, there’s only one that gets to decide. We, we seem, it seems we’re incapable of thinking that we can have different people at the table deciding together, working through a process. And that, that doesn’t overturn sovereignty. Could you have a comment on that?

Bruce McIvor (34:49): So that line of thinking is very similar to what the courts have come up with when it’s been raised. The courts have basically said, we can’t look under the hood. We know that the engine is pounding away. And it sounds like the timing chain’s gone, but sorry, we’re part of the Canadian court system. Our authority is based on that assertion of Crown Sovereignty, so we can trust in it.

Okay, if that’s where we are, then what needs to be done is to realize that that assertion of Sovereignty, as wrong as it may be, is still very limited. It’s this misunderstanding that you can begin with that assertion of sovereignty, and that gives provincial or federal government total decision making authority over the land. That’s simply not how Canadian law works. That assertion of sovereignty is what the courts refer to as some kind of underlying interest. It doesn’t actually give the provincial government the authority to decide whether to put a pipeline through are not. That’s something else that lays on top.

And that’s what the courts have said is an aspect of Aboriginal title, is to get to decide. So you, you can have that assertion of sovereignty, but then you have an added responsibility, I think both legally and morally to move towards recognizing Aboriginal title. You have to do it because if you don’t, you’re just proceeding based on that underlying lie.

Michael Miltenberger (36:47): Bruce, just another question for you before we get close to wrapping up here. So the comment by the courts that they can’t look under the hood, that they’re the arm of government, they’re probably correct. But the arm of government that can look under the hood are the legislators and the ones who make the laws that the courts interpret and the lawyers fight over. That’s where the conversation on reconciliation has to get back to. But it seems to me, I’d be interested in your opinion, that’s the arm of government that has the ability to look under the hood and say, if there was some mistakes here and we can fix that, that’s our job.

Bruce McIvor (37:28): It’s their job. And it’s their responsibility.

Michael Miltenberger (37:31): Absolutely.

Bruce McIvor (37:31): It’s their moral responsibility to do that. And I think part of what’s driven this frustration across the country, in BC particularly about what’s been going on with Wet’suwet’en and the pipeline, is that last fall, we had the BC provincial government trumpeting, the first provincial legislation implementing UNDRIP. This was going to turn over a new leaf and go exactly to what you’re referring to. Having legislation in place, moving towards true reconciliation.

But in the wake of that, what we’ve had is the provincial government in BC saying, well, that’s all for another day. That’s not about this pipeline. That is not about what’s going on today. That’s all future-looking and that causes a lot of cynicism across country. That is the provincial government’s fault here. That’s their responsibility. They passed legislation that says we will implement UNDRIP. If you read it, it doesn’t say we will implement it in the future at some time. It says that we will be bound by UNDRIP. They should be doing that right now, not down road.

And just a final point on that, there’s ways to do this. This is one of the things that is a strength of Canada, as you referred to is this concept of cooperative federalism… Provincial, and federal governments working together. They have examples of how they just need to create a place at the table for Indigenous people so they can also be part of that form of reconciliation. Where you’re not sending in the choppers. And [you’re not sending in] the militarized force. But you’re having that meaningful conversation. [You’re] respecting other people’s laws.

Merrell-Ann Phare (39:50): And I’ve, I’ve talked to, I so strongly agree with that. And I have and wonder if you would. Because when you think about Indigenous governments and nations sitting at the table of Confederation with federal and provincial crown, you just pull up a few more chairs to the table. And now we, you know, the true founding nations of Canada, sit together and govern this country. You can see that in a situation of terrible conflict, like a pipeline. And through Canada’s history, we’ve had many, many times of really terrible inter-governmental conflict. And we don’t go to war against each other then. As Michael said, we don’t send in the RCMP.

What we do sometimes is walk away from the table and leave it until we can come back and talk about it rationally again. We wait, we try other mechanisms. Occasionally, we take each other to court and you will see federal and provincial government sue each other sometimes over who has what jurisdiction or who has the right to do this or that. And then we abide by those decisions. But those are fairly rare if you think about Canada’s history.

And so to me, I think it’s really so straight forward at a certain level, which is conceive of just pulling more chairs up at that table. And then nobody – you just – consent is about continuing to talk about it until we can find an answer that we can all live with. Not just talking about it enough until we think we’ve talked about it enough. And then we go away and do what we wanted to do. Anyway.

Bruce McIvor (41:33): In some ways for people that have children, it’s that conversation you have with your child is that hitting is not an option. That’s not how you resolve things, let’s just take that one off the table.

Merrell-Ann Phare (41:47): Right, great example.

Bruce McIvor (41:47): Now, let’s find a way forward here. And it’s the same with that. But for Indigenous people, the threat of violence against them, the Canadian state won’t abandon that option. And that’s just the reality. Governments, provincial and federal will not take that option off the table, using violence against Indigenous people. And that’s just the sad state of the current situation in Canada. Until you have that, that threat of violence against you, how can you have a real conversation?

I know that was one of the things that the chiefs in this situation wanted. They wanted the RCMP to stand down because how could they have a meaningful conversation with the provincial government when they look down the road and they saw the armed RCMP ready to invade them? We really need Canadians to tell politicians and at a fundamental level, this is a failure of Canadian politicians. This is their failure. And this is not a Wet’suwet’en problem. This is not an Indigenous problem. This isn’t even a pipeline problem. This is political failure.

Michael Miltenberger (43:14): It’s the strength of the entrenched institutions that have had that as their bedrock response at all times. And they have yet to give that up, as you’ve pointed out.

Bruce McIvor (43:26): They will not give it up. That’s why all the talk of injunctions, people talk about injunctions, that’s where that comes from. The Supreme Court of Canada was very clear in the Haida decision in 2004. Using these injunctions is not the way forward. It’s not the way you’re going to resolve things. But injunctions can be used and there was a really good report from the Yellowhead Institute a few weeks ago. They’re a weapon to be used against Indigenous people. When all else fails, we’ll get an injunction against you and then we’ll get the RCMP to enforce it. That’s just that underlying threat.

Wrap Up

Merrell-Ann Phare (44:13): Well, that’s been, it’s just been absolutely fascinating talking to Bruce. Thank you so much for taking this time. I hope, we’ll be watching closely over the next while for your very insightful blogs. And pray that the Wet’suwet’en conflict and the discussions go, the conflict reduces and the discussions go well. And that the politicians who have failed us so far step up. Also we’re able to see – my – no, my Twitter feed has a whole bunch of people saying, wow. We are watching an entire system crumble and change at this moment. Just realize that that’s what we’re doing. And I think many, many people are very hopeful that that’s what’s happening right now. That we’re living through a moment of incredible change for the better.

Bruce McIvor (44:59): Yeah, thanks. I really appreciate the chance to be on the podcast. And thanks to both of you and all those people out there across the country. [Thanks to] Indigenous and non-Indigenous that are part of this movement to wake up Canada, and to ensure that there’s a better day down the road for everyone.

Michael Miltenberger (45:25): And here’s hoping the clans meet for the first time in a generation and get their combined power together and pivot to the government.

Bruce McIvor (45:35): They’re very powerful people. Thank you very much.

Michael Miltenberger (45:38): Thank you.

Episode Closing

Merrell-Ann Phare (45:40): The Porcupine Podcast is produced by myself, Merrell-Ann Phare and Michael Miltenberger. We’d also like to thank our co-producer and audio technician, Hannah Gehman, and our writer, Deborah Bowers. Thanks to you for listening to Porcupine Podcast. We hope you return and please feel free to rate and subscribe. Bye for now.

Episode 0: Meet the Hosts – Merrell-Ann Phare and Michael Miltenberger

Episode 1: CLI Elders Explain Reconciliation with Stan McKay, Garry McLean, and Rodney Burns

Episode 2: Northern Reality and Reconciliation with Tony Penikett – Part 1

Episode 3: Northern Reality and Reconciliation with Tony Penikett – Part 2

Episode 4: Water and Reconciliation – CWRA Live Taping

Episode 5: The Role of Indigenous Taxation in Reconciliation with Manny Jules

Episode 6: Indigenous Economics and Reconciliation with Andre Le Dressay

Episode 7: Sports and Reconciliation with Patti-Kay Hamilton

Episode 8: Indigenous Law, Consent and Reconciliation with Bruce McIvor

Episode 9: Hip Hop and Reconciliation with Crook the Kid

Episode 10: The Importance of Treaty Land Entitlement with Laren Bill


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