INDIGENOUS BLOCKADES AND THE POWER TO SPEAK THE LAW: FROM SETTLER COLONIALISM TO INDIGENOUS RESURGENCE CHRISTOPHER ALBINATI A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAW GRADUATE PROGRAM IN LAW YORK UNIVERSITY TORONTO, ONTARIO MARCH 2017 © CHRISTOPHER ALBINATI, 2017 Abstract This thesis traces tensions between pluralism, elimination and resistance in the centuries-old narrative underlying the uncertain legal foundations of Crown sovereignty in the territory now known as Canada. The first half of the work applies the emerging literature of settler colonialism to a close reading of a selection of leading scholarship on Aboriginal rights jurisprudence to identify whether the Canadian courts are reproducing elements of settler colonialism in their decisions. This review raises serious doubts about the legitimacy of Canadian courts to impartially and fairly resolve disputes involving Indigenous peoples. It also narrows the legal issue in such cases to assessing the legitimacy of competing claims to jurisdiction between the settler colonial state and Indigenous peoples. The second half of this work then draws on the literature of Indigenous resurgence, blockades, jurisdiction and the rule of law to construct a framework for examining juridical sites where conflicting assertions of Indigenous and settler colonial authority are a dispositive factual and/or legal issue. This framework is used to analyze a selection of leading Indigenous blockades cases as a way of further understanding the challenges that courts and Indigenous peoples face in seeking to decolonize law and restore a pluralistic legal order. ii Dedication This thesis is dedicated to Arthur Manuel, Secwepemc leader, author, activist, legal warrior, friend and mentor, whose stories inspired me to go to law school, whose conversations helped to keep me from leaving law school, whose famous big breakfast made sure I crossed the stage for my law degree on a full belly, and whose many words of wisdom and guidance over the years since have filled my mind and heart as I pursue this work and learn more about living and practicing “solidarity in the struggle.” iii Acknowledgements I picked up the kernel of this thesis almost ten years ago while working as a news producer at CKUT 90.3 FM in Montréal. It was an energizing time of organizing against the 2010 Olympics and G8/20 meetings. I was inspired then by stories about Arthur Manuel and Defenders of the Land, about the resistance of the Secwepemc and the Algonquins of Barriere Lake and about the connection between blockades and Indigenous law. These stories awoke in me questions, lessons, personal reflections and obligations that have led me to pursue a commitment to solidarity in the struggle that has taken me to many places, to meet many people and to hear many more stories about resistance, all of which have shaped the kernel of my work as it continues to grow. First and foremost, I acknowledge the Secwepemc, Musqueam, Squamish, Tsleil-Waututh, Anishinaabeg and Haudenosaunee, on whose respective territories that I and my young family have lived while developing this thesis. I am grateful to Dayna Scott and Andrée Boisselle, my supervisors, for their patience, insight, feedback and encouragement throughout the writing process. I am excited to have their guidance as I follow the next phase of this work into the PhD. I also thank Sonia Lawrence, my program director and defense committee chair, for her guidance, support and insightful questions and comments during my defense process. I thank Ravi de Costa, the external member, for challenging me with tough and informed questions during my defense. I am indebted to Janna Promislow and Nicole Schabus, my professors in law school and continued mentors, for feeding my curiosity and for always challenging me to think deeper about these issues throughout law school and beyond by inviting me into your research projects and introducing me to the people in your circles. I am grateful to Gretchen King, my mentor at CKUT, who swiftly broke down my journalism school constructions about the purpose and rules of storytelling by teaching me about the connections between community, solidarity and struggle. Much of the thinking underlying this thesis has been influenced, challenged and shaped by numerous conversations and encounters with scholars whom I aspire each day in this work to call my contemporaries, key among them are: Glen Coulthard, Kent McNeil, Shiri Pasternak, Russ Diabo, Aaron Mills, Emma Feltes, John Borrows, Brian Noble, Leanne Simpson, Val Napoleon, Irina Ceric and Sharon Mascher. I thank Dave Nahwegahbow, Dianne Corbiere, Scott Robertson and all my coworkers at Nahwegahbow Corbiere for their ongoing support and encouragement in my graduate work. I also thank the Law Foundation of British Columbia for supporting this work through a Graduate Fellowship. A special kukstec-kuc to the leaders, elders and warriors who have given me just an initial understanding of the complexity and reality of the struggle on the ground, and with whom there is much work yet to get to on the ground in the struggle for self-determination and decolonization: Wolverine Jones, Flora Samson, Evelyn Camille, Mike Arnouse, Arthur Manuel, Janice Billy, Kanahus Manuel, Amy Jones, Michelle Ikwumono, Garry Gottfriedson and Ryan Day. Finally, it is impossible to capture in words the unpayable debt of gratitude that I have for my family whose support, inspiration and sacrifice throughout this work has made this thesis possible: To my Lola, thank you for making me realize that one is never too old to awaken to the struggle of your people, for sharing your stories, culture and language of the Isinay and for setting me on a lifelong journey to reclaim that part of my identity. Thank you to my parents and my siblings for all of the ways that you have sharpened the skills that have made me who I am. And lastly, to my partner and best friend Carolyn, and our beautiful kids Theo, Uma and [TBD ]. Thank you for all the big and little things, notes, drawings, inspirations, smiles, interruptions, sacrifices, breaks, hugs and kisses every single day. You are my world. iv TABLE OF CONTENTS Abstract ........................................................................................................................................... ii Dedication ...................................................................................................................................... iii Acknowledgements ........................................................................................................................ iv Introduction: From Settler Colonialism to Indigenous Resurgence ............................................... 1 Chapter 1: Settler Colonialism: An Emerging Pathology of Violence ........................................... 5 What is Settler Colonialism? ............................................................................................... 6 Past and Present: Transforming Violence into Law, Jurisdiction and Sovereignty ....... 12 Conclusion ...................................................................................................................... 23 Chapter 2: Whose Land is Canada Built On? ............................................................................... 25 Creativity of the Courts: Inventing New Ways to Eliminate Indigenous Sovereignty ...... 32 “Because it does not make sense”: The Logic of Elimination in Judicial Decisions ..... 38 Assumption of Territoriality: Is the Colonial Court a Thinking Machine?.................... 47 Conclusion ...................................................................................................................... 59 Chapter 3: Indigenous Resurgence and the Rule of Law .............................................................. 64 What is Indigenous Resurgence? ....................................................................................... 66 The Necessity of Direct Action ...................................................................................... 69 Indigenous Blockades .................................................................................................... 74 Jurisdiction and the Rule of Law.................................................................................... 81 Conclusion ...................................................................................................................... 87 Chapter 4: Indigenous Blockades and the Power to Speak the Law ............................................ 88 Skwelkwek’welt: Seeing the Violence in the Jurisdictional Conflict ................................ 91 The Gitksan and Wet’suwet’en Nations: Competing Claims to Jurisdiction................. 97 The Haida Nation: From Haida Jurisdiction to the Duty to Consult ............................ 100 Robert Lovelace and the KI 6: The Presumptive Criminalization of Indigenous Law 105 The Tsilhqot’in Nation: Seeing Unproven Aboriginal title ......................................... 111 George Behn and the Fort Nelson First Nation: Who is the Proper Authority? .......... 114 Conclusion .................................................................................................................... 133 CONCLUSION ........................................................................................................................... 137 BIBILIOGRAPHY ....................................................................................................................