Transnational Law, Reconciliation and the MOU on Wet’suwet’en Governance

Photo Credit: Office of the Wet’suwet’en/Francois Depey

By Keith Cherry

This winter, a conflict between Wet’suwet’en and Canadian law regarding a proposed pipeline triggered a national crisis. The associated militarized police raids and Indigenous-led blockades rocked the country. In response, Canada, B.C. and the Wet’suwet’en have signed a Memorandum of Understanding committing them to negotiating a recognition of Wet’suwet’en title, governance and law.

If Settler negotiators base their approach on domestic discourses of reconciliation, I contend that their positions will remain asymmetrical and unable to produce a lasting peace. Instead, I suggest that drawing on transnational law might provide a more fruitful basis to negotiate from.

Background: Reconciliation is Dead
This winter’s crisis has its roots in the way Settler officials approach Indigenous law. When CGL proposed a pipeline that would have an irrevocable impact on the Wet’suwet’en, Canadian regulators consulted with Indigenous peoples, heard their laws, but ultimately made decisions unilaterally. In doing so, they decided on their own if, when and to what extent Wet’suwet’en law would be upheld. Indigenous peoples can challenge these decisions in court, but there too a Canadian judge will unilaterally decide how to “reconcile” Indigenous and Canadian law.

The results of a system are predictable when one is judge in their own case. For example, a recent study found that Canadian courts grant 76% of injunctions filed against Indigenous peoples, while denying 81% of the injunctions filed by First Nations.

The current system of reconciliation is one of Canadian unilateralism and is deeply skewed towards Canadian interests. Deprived of meaningful agency within this process, many Indigenous peoples feel they have little choice but to respond in kind by asserting their own laws unilaterally – on the land and in the streets. Little wonder then, that the Wet’suwet’en took to the streets this winter, and that they did so under the rallying cry “Reconciliation is Dead”.

Europe’s “Constitutional Pluralism” as a Source of Inspiration
In an era of transnational, subnational, and international legal regimes, the interrelation of different bodies of law is highly topical. Unlike Canadian discourses of unilateral reconciliation, however, many transnational responses model an approach which is multilateral and rooted in dialogue.

The European Union (EU), for example, features a transnational legal system alongside the law of its member-states. Just as in Canada, this raised the difficulty of conflict between laws. Much like the Canadian state, the European Court of Justice (ECJ) responded by unilaterally declaring that EU law is supreme over national law.

However, the courts of the member-states responded with counter-claims based on their own legal traditions. Notably, the German Constitutional Court pioneered an approach sometimes referred to as the “so-long-as” doctrine – so-long-as the EU doesn’t do anything to offend Germany’s most basic laws and constitutional values, Germany will accept EU authority.

Occasionally, German courts use Reference Questions to the ECJ to signal that an EU law may violate these conditions, often suggesting possible solutions. In order to preserve its own supremacy, the ECJ dutifully considers these suggestions in its ruling – effectively proposing its own way to resolve the conflict. When the issue arises again in German courts, German judges have an opportunity to either accept the ECJ’s solution or to signal that the conflict persists and suggest alternative approaches with another Reference Question. In this way, the two courts engage in a dialogue, going back and forth until a mutually acceptable solution is found. This system is know as “constitutional pluralism”.

Pluralism and Reconciliation
I contend that constitutional pluralism holds three important lessons for reconciliation.

First, it is crucial that the ECJ does not try to act as guardian of the German constitution. The Germans articulate their own laws, signal if and when they have been violated, and decide if and when the ECJ has offered an acceptable solution. Likewise, constitutional pluralism suggests that Indigenous law can only be justly articulated by independent Indigenous institutions.

Second, the flow of influence between institutions goes both ways. The ECJ can require German authorities to meet its standards, but German courts can effectively force the EU to meet German standards as well. In this way, the authority of either party is contingent upon the ongoing consent of both. Such conditional authority claims are one way to understand the concept of free, prior and informed consent.

Finally, constitutional pluralism functions by creating regular opportunities for dialogue and negotiation between parties. Recognising this fact, modern treaties could be redesigned to allow dialogue between Canadian and Indigenous institutions – perhaps through Reference Questions, or perhaps using something similar to the co-decision bodies envisioned under BCDRIP S7(2), which is also modeled on international law.

Crucially, such an approach would make the concept of reconciliation multilateral, recognizing the agency of both parties and providing a means for them to seek justice together without recourse to unilateral coercion.

Conclusions: Nation-to-Nation
Of course, it would be foolhardy, not to mention colonial, to think that European discourses can provide a ready-made roadmap to reconciliation. The mechanics of reconciliation must be negotiated in conversation with Indigenous nations, drawing on Indigenous concepts and institutional forms. Still, one must recognize that the discourse of reconciliation that Settler negotiators have been bringing to the table is not only dead, but a dead end in the current negotiations. Transnational law offers alternative ideas, precedents, and institutions that might help Settler negotiators to understand why, and to imagine new alternatives as their conversations with the Wet’suwet’en continue.

Guest Author Profile

Keith Cherry is a settler academic and community activist living on unceded Lekwungen territories. Keith is a Killam Postdoctoral fellow at the University of Alberta, a fellow at the Center for Global Studies at the University of Victoria, and a founding member of the Cedar Trees Institute. His doctoral research explored legal pluralism in two contrasting settings, settler/Indigenous relationships in Canada and member-state/Union relations in the European Union. Moving forward, Keith is interested in exploring the relationship between Indigenous activists and settler allies as an alternative form of pluralism that can help transcend the limits of state-based discourses.

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