Canada does seem to be having persistent problems with the law. The Supreme Court of Canada ruled in its Delgamuukw and Marshall decisions, in 1997 and 1999, that First Nations peoples who never made treaties ceding their lands and resources to the Crown retain aboriginal title to their ancestral territories.
But Canadian governments, federal and provincial alike, have often simply ignored inconvenient court rulings on what constitutes the law of the land. The Burnt Church fishery dispute of 1999-2002 was nudged toward violence by the Department of Fisheries and Oceans’ refusal to accommodate Mi’kmaq rights confirmed by the Marshall decision; and in recent months the New Brunswick government, the RCMP, and the lower courts that have glibly handed out injunctions criminalizing any obstruction of fracking exploration on unceded Mi’kmaq land, appear again to have been violating the law.
Two leading experts in natural resources law have commented on this recent bout of lawlessness. Bill Gallagher has remarked that there are “seven high-level court cases” which native people won “on a very profound point of law,” with the courts giving “a series of admonitions” to the losing parties, “governments and interveners and industry” – despite which the New Brunswick government has left these court decisions “sitting on shelves.” And Michael McClurg has written that in the Elsipogtog case, “the rule of law […] would arguably dictate” that the protesters had every right to be where they were, while others, “including the Crown and resource extraction companies, are trespassers.”
What are we to do when the very people who should be applying the rule of law fling it out the window, and when foolish or malignant pundits like Rex Murphy or Ezra Levant do their best to obstruct public understanding of what’s going on?
But a further problem arises from the fact that even when governments respect the law, its structures may embody and legitimize wrongs and injustices.
Only in Utopia, the land of Cockagne, or the Big Rock Candy Mountain are legality and justice wholly one and the same. Think of the words of the prophet Amos that Martin Luther King famously quoted in his “I have a dream” speech. Amos didn’t say “Let legality roll down”: he said, “Let justice roll down like waters, and righteousness like a mighty stream” (Amos 5: 24). What the civil rights movement was struggling against, in the name of justice and righteousness, was quite precisely a perverted legality: the laws and state practices of Jim Crow racism.
The Canadian legal system has moved towards remedying some institutionalized features that run counter to justice. Attempts are being made to provide restorative justice through Gladue courts; and the Royal Commission on the Donald Marshall, Jr. Prosecution (1989) declared that “Native Canadians have the right to a justice system […] which has respect for them, and which dispenses justice in a manner consistent with, and sensitive to their history, culture and language.”
On the level of resource issues, it’s clear that a system of law and justice that was respectful of and sensitive to native history, culture and language would not for a moment permit practices like fracking. But the corporations involved in resource extraction are bound by corporate law to understand value as a matter of maximizing shareholders’ profits – and to discard the real values of justice, respect for aboriginal title, and the responsibility to preserve the land for future generations.
The hollowness of this perverted legality can be exposed by comparison to higher understandings of what binds us to the land we all belong to.
We can find such forms of understanding in the Mi’kmaq system of justice (koqqwaja’ltimk) one of whose principles, as Leslie Jane McMillan explained in her 2002 doctoral thesis on Mi’kmaq Legal Consciousness, is sharing (utkunajik) within a common territory (netukulimk). We can find them, more fully elaborated, in the Six Nations or Haudenosaunee Kaienereh’ko:wa, known in English as the Great Peace.
In 2006, two women of the Six Nations, Katinies and Kahentinetha, explained their intervention in an issue involving environmental degradation in the Haldimand Tract lands as prompted by the Kaianereh’ko:wa’s Wampum 44, which defines the women as the “progenitors of the soil,” and makes them, the elders said, “the Caretakers of the land, water and air of Turtle Island. As the trustees, we are obligated to preserve and protect the land’s integrity for the future generation.”
In the same year, another Six Nations woman, Hazel Hill, informed local newspapers in Grand River and Caledonia that the controversy that had erupted over a land reclamation near Caledonia was not just a question of ownership, but a conflict between two systems, one that has served oppression and another higher and much way of life:
It’s not about disrespecting […] the laws of Canada, but more importantly about respecting […] the Universal Law given to us by the Peacemaker and Gigonsaseh, and upholding our responsibilities as individuals in accordance with that law [….] It’s not about an occupation, but about asserting our jurisdiction.
Canadians of European heritage may find it easier to understand these appeals to a system of justice higher and more ancient than the law of the Canadian state if they remember a story that forms part of their own heritage. It is the story of Antigone, a daughter of the royal house of Thebes, as told by Sophocles, one of the great tragic playwrights of ancient Greece, four and a half centuries before the beginning of our Common Era.
Antigone’s two brothers quarrelled over the throne of Thebes. One, who was banished, returned with an army and attacked the city. When the brothers killed each other in battle, their uncle, who became king, proclaimed that the one who had defended the city should be buried with due honours, while the other’s corpse should rot outside the city and be consumed by dogs and carrion birds – and anyone who gave the body burial rites should die.
It is made clear that the king’s decree violated a primal order of justice. Carrion-eating animals and birds refused to touch the corpse; then, after Antigone defiantly gave it burial rites, which the king reversed, exposing the dead body again, the carrion-eaters gorged themselves and vomited the rotting flesh onto the altars of the city’s temples.
At a central moment in the play, Antigone’s tells the king that his law went against the highest god, Zeus, and against an order of Justice higher than any decree of the state. I quote from Robert Fagles’ translation:
It wasn’t Zeus, not in the least, who made this proclamation – not to me. Nor did that Justice, dwelling with the gods beneath the earth, ordain such laws for men.
Nor did I think your edict had such force that you, a mere mortal, could override the gods, the great unwritten, unshakable traditions.
They are alive, not just today or yesterday: they live forever, from the first of time….
Set aside this tragedy’s lurid details: its central conflict, between a law arrogantly and unjustly proclaimed by the state, and a higher sense of justice, of “unshakable traditions” that Antigone courageously obeys in principled resistance to the state’s brute force, has a familiar ring.
The women of the Six Nations, and the Mi’kmaq women who have taken a stand, together with their menfolk, in opposition to fracking exploration in New Brunswick, are sisters of Antigone.