This Changes Everything (60 page)

Mukherji and an S&P colleague listened and silently skimmed Manuel’s documents. A polite question was asked about Canada’s recent federal
elections and whether the new government was expected to change the enforcement of Indigenous land rights. It was clear that none of this was new to them—not the claims, not the court rulings, not the constitutional language. They did not dispute any of the facts. But Mukherji explained as nicely as he possibly could that the agency had come to the conclusion that Canada’s First Nations did not have
the power to enforce their rights and therefore to collect on their enormous debts. Which meant, from S&P’s perspective, that those debts shouldn’t affect Canada’s stellar credit rating. The company would, however, continue to monitor the situation to see if the dynamics changed.

And with that we were back on the street, surrounded by New Yorkers clutching iced lattes and barking into cell phones.
Manuel snapped a few pictures of Guujaaw underneath the Standard & Poor’s sign, flanked by security guards in body armor. The two men seemed undaunted by what had transpired; I, on the other hand, was reeling. Because what the men from S&P were really saying to these two representatives of my country’s original inhabitants was: “We know you never sold your land. But how are you going to make
the Canadian government keep its word? You and what army?”

At the time, there did not seem to be a good answer to that question. Indigenous rights in North America did not have powerful forces marshaled behind them and they had plenty of powerful forces standing in opposition. Not just government, industry, and police, but also corporate-owned media that cast them as living in the past and enjoying
undeserved special rights,
while those same media outlets usually failed to do basic public education about the nature of the treaties our governments (or rather their British predecessors) had signed. Even most intelligent, progressive thinkers paid little heed: sure they supported Indigenous rights in theory, but usually as part of the broader multicultural mosaic, not as something they needed
to actively defend.

However, in perhaps the most politically significant development of the rise of Blockadia-style resistance, this dynamic is changing rapidly—and an army of sorts is beginning to coalesce around the fight to turn Indigenous land rights into hard economic realities that neither government nor industry can ignore.

As we have seen, the exercise of Indigenous
rights has played a central role in the rise of the current wave of fossil fuel resistance. The Nez Perce were the ones who were ultimately able to stop the big rigs on Highway 12 in Idaho and Montana; the Northern Cheyenne continue to be the biggest barrier to coal development in southeastern Montana; the Lummi present the greatest legal obstacle to the construction of the biggest proposed
coal export terminal in the Pacific Northwest; the Elsipogtog First Nation managed to substantially interfere with seismic testing for fracking in New Brunswick; and so on. Going back further, it’s worth remembering that the struggles of the Ogoni and Ijaw in Nigeria included a broad demand for self-determination and resource control over land that both groups claimed was illegitimately taken from
them during the colonial formation of Nigeria. In short, Indigenous land and treaty rights have proved a major barrier for the extractive industries in many of the key Blockadia struggles.

And through these victories, a great many non-Natives are beginning to understand that these rights represent some of the most robust tools available to prevent ecological crisis. Even more critically, many
non-Natives are also beginning to see that the ways of life that Indigenous groups are protecting have a great deal to teach about how to relate to the land in ways that are not purely extractive. This represents a true sea change over
a very short period of time. My own country offers a glimpse into the speed of this shift.

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.
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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.”
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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 condi
tion 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.
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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.
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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.”
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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.”
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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.
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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.”
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