Circular fight for Indigenous rights

Opinion

Hey there, time traveller!
This article was published 29/03/2021 (1640 days ago), so information in it may no longer be current.

Authorities shut down Okanagan Indian Band member Cory Brewer’s cannabis store in Vernon, B.C., this month, fining him $100,000 for selling without a provincial licence.

The move may spark another fight for Indigenous rights.

Brewer, who operates two other cannabis stores on his community’s reserve north of the city — where the Syilx (Okanagan) Nation government permits members to sell — responded by making a seemingly insignificant argument.

“I took it upon myself — once the United Nations Declaration on the Rights of Indigenous Peoples was tabled in B.C. — to step off-reserve and basically assert our rights within our territory, our practice, our rights within our territory,” Brewer told the CBC.

He was referring to the November 2019 adoption of Bill 41 by the B.C. government, which committed to “implement” all 46 articles of UNDRIP into provincial law.

Under the declaration, Indigenous peoples have the right to “freely pursue their economic, social and cultural development” (Article 3) and a right to “develop their political, economic and social systems or institutions” (Article 20).

Lawyers were quick to criticize Brewer for misunderstanding UNDRIP as assuring Indigenous “collective” rights while he is seeking an “individual” right. (Frankly, these are arbitrary constructions, but I digress.)

The Okanagan band, however, has never signed treaty with Canada and the City of Vernon is on its land; its “unceded and unsurrendered title.”

So, Brewer is on his traditional territory and — just like on his reserve — fully within his rights to sell cannabis.

If Brewer wants to fight for his right, though (and he may to avoid a stream of fines), we’re off to the Supreme Court.

For four decades — basically since Indigenous rights were entrenched in Section 35 of the constitution in 1982 — this is how Indigenous rights exist in Canada.

A small, seemingly insignificant disagreement over Indigenous and treaty rights happens, due to the fact Section 35 has never been defined.

A conflict emerges when some other law (usually provincial) asserts Indigenous governments, leaders, and everyday people don’t have authority to define rights.

Then, people are fined and jailed.

On cue, premiers make pronouncements about how Indigenous rights “don’t veto” provincial authority or some other nonsense.

Following this, Canadians start complaining Indigenous peoples want “special” treatment.

Later, after millions of dollars in lawyer fees, Indigenous nations almost always win some small — but significant — concession, such as: “Indigenous law exists” or “Indigenous title pre-dates Canadian title.”

Very little changes. It’s all predictable.

And all because Indigenous rights are not defined.

The UNDRIP is supposed to help clear this up, guaranteeing some basic guidelines such as “Indigenous governments should be defined by Indigenous peoples” and “Indigenous culture should be what Indigenous peoples say it is.”

Even these simple rights, though, are virtually impossible under Canadian laws such as the Indian Act or constitution, which give incredible powers to provinces on basically all things that impact Indigenous rights (education, land and resources, child welfare).

This all means more (and perhaps needed) conflict is coming with the federal government’s Bill C-15, which will echo B.C.’s Bill 41 and bring Canada’s laws in concert with UNDRIP.

This past week, Katzie First Nation businesswoman Cheyenne Cunningham tried to register her company’s name in B.C. using her traditional language of hən̓q̓əmín̓əm̓.

Provincial officials told her she has to use characters in the Roman alphabet.

Cunningham, who has since filed a discrimination complaint with B.C.’s human rights tribunal, says her right to her traditional language (guaranteed under Article 13 of UNDRIP) is being violated.

The federal government has already recognized Indigenous languages as a right, too, under the Indigenous Languages Act.

Meanwhile, there’s near-endless battles over hunting and fishing rights, who are the rightful Indigenous governments, and a fraught process of “consultation” on land and resource projects which is anything but.

For the most part, Indigenous communities in Manitoba work with the provincial government in the exercise of rights — but, frankly, they don’t have to.

Over half First Nations governments in this province, for example, have begun the process of exercising rights to take over child-welfare systems under federal Bill C-92, for example.

First Nations governments (such as Opaskwayak Cree Nation) work with the province on cannabis certification and sales.

Some of the best exercises of Indigenous rights in Manitoba have been in health, where First Nations have controlled their own pandemic data and exercised rights to protect themselves by following their own decisions (sometimes resulting in direct conflict with the province).

This shows Indigenous rights are possible, if you can just work around the problems, vagueness, and failures of Canadian law.

niigaan.sinclair@freepress.mb.ca