A Neglected Pledge

In 1999, I was a graduate student in California, studying multilateral investment and trade agreements. This is a more interesting subject than it might first appear, because these deals have important implications for public education, water rights, generic drugs, and other concerns of ordinary people. It was even more interesting when, later that year, there were protests against the World Trade Organization ministerial conference in Seattle. Ahead of the contentious gathering, activists with legal training created free, pocket-sized guides to explain trade agreements, so that anyone could better understand the law and grasp the bigger picture of how such agreements affect everyday life and the environment. These small publications pointed out, for instance, that lofty promises made in preambles are not legally binding.

The lawyer and University of British Columbia adjunct professor Bruce McIvor does something similar with Standoff: Why Reconciliation Fails Indigenous People and How to Fix It, in which he explains numerous legal documents and decisions in plain, accessible language. Across thirty-nine chapters, each just a few pages long, McIvor describes various ways Indigenous communities have sought remedies to a range of historic wrongs through Canadian law. He considers First Nations separated by the international ­border with the United States; explores advances in the recognition of Métis constitutional rights; and explains the duty to consult when it comes to government, corporate, and other activities on Indigenous lands. McIvor insists that treaties demand “consultation plus”: that is, strong legal justifications for any infringement on title. And he believes that, at its best, Canadian law can uphold good relationships between the Crown and self-determining Indigenous communities.

Unfortunately, the law is rarely this functional. Instead, McIvor observes, most legal cases are necessary because the government fails to honour its own most solemn commitments. Section 35 of the 1982 Constitution Act, for example, explicitly recognizes and affirms “the existing aboriginal and treaty rights of the aboriginal peoples of Canada.” This means that the legal frameworks outlining the rights of Indigenous peoples, as well as their own understandings of their relationships and ­responsibilities to their lands, must be respected. Yet communities are often forced to turn to ­litigation simply to remind corporate and ­government actors of this constitutional promise. The Crown’s neglect of its pledge contributes to the ongoing failure of reconciliation.

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Inside or outside of the courtroom, the everyday practice of law can grind down the optimism of those who seek justice. McIvor describes how he was once rendered speechless by a judge who knew so little about Canadian legal responsibilities to Indigenous peoples that he asked, unashamed, whether the treaty before the court was part of a specific statute. On another occasion, McIvor found himself in a hotel restaurant, across the room from the officials that he and his Treaty 3 clients were to meet later that day. He recalls them making light of the situation: “Laughing at their own well-worn ­obstructionist tactics. Laughing at my clients’ positions and expectations. Laughing at the ultimate ­meaninglessness of the consultation process they have invited my clients to join.”

As if the ignorance of judges and the antagonism of civil servants were not discouraging enough, self-proclaimed allies can be even worse. McIvor was once critiqued for using the verb “accept” (too weak) instead of “acknowledge” (better) in an essay about the “massive failure” of reconciliation. Whatever the critic’s explicit intent, his real purpose was to claim a superior moral and political commitment to Indigenous peoples — a petty one-upmanship that brought McIvor to tears.

McIvor works with many groups who are, unsurprisingly, deeply cynical about Canadian law. He once told a roomful of Anishinaabe elders in Northern Ontario that the provincial government was prepared to sit down and discuss jurisdiction of their lands. They replied with a story about visiting some cousins, only to arrive and find them handcuffed to poplar trees. “For my clients, the word jurisdiction didn’t connote fairness, justice and the rule of law,” he writes. “It conjured visions of the personifications of government and institutional authority, the priest, the RCMP officer, the Indian Agent.” In other words, the constitutional promise of respect for Indigenous peoples and their rights runs against long histories of Canadian law as a colonial force that has sanctioned and participated in violence.

McIvor cares about the law for both professional and personal reasons. In an unusually frank exploration of Indigenous identity, he describes his decision to check a box on his law school application that indicated he was Aboriginal — acknowledging his connections to the Red River Métis. When other Indigenous ­students embraced him as one of their own, their support strengthened his emerging identity. Yet McIvor also wrestled with this self-identification, because of what it meant for him as a member of the Métis diaspora living far from ancestral lands, with few direct attachments to the community. He soon learned that Canadian law provided little clarity on the matter.

According to the 2003 Powley decision, McIvor is not Métis, since his identity is of “recent vintage” and therefore not acceptable to the Supreme Court of Canada. But the 2016 Daniels case would allow him to be acknowledged as Métis, because of his well-documented ancestry. When McIvor ultimately took up citizenship in the Manitoba Métis Federation in 2020, his decision was strategic rather than heartfelt, since membership would protect him from charges of being an opportunistic “pretendian.” McIvor shows how the law and other imposed formalities are radically inadequate to determine belonging. His own roots lie in obligations to family members whose Indigeneity was undermined by the state. “If I did not self-identify as Métis I would be denying my ancestors,” he writes. “I am unprepared to take that final step in the march of colonialism, so I am Métis.”

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As the protesters in Seattle knew decades ago, intervening in international governance, with the aim of more-just relationships, requires self-education. With Standoff, McIvor invites general readers to learn about Canadian law, so that they can understand how it has been used to both break and remake relationships with Indigenous peoples. Despite its many limitations, which he knows too well, McIvor maintains that the law can still be mobilized for meaningful reconciliation. Achieving this goal demands the immediate application of the United Nations Declaration on the Rights of Indigenous Peoples, the active realization of constitutional commitments, and, above all, the renouncing of state-sanctioned violence against Indigenous peoples, such as “the RCMP’s enforcement of the Coastal GasLink injunction against the Wet’suwet’en.” Fixing the flaws within current reconciliation efforts will require a fundamentally new application of existing frameworks — freeing the law from its colonial moorings, so that Canada can finally live up to promises of justice and fairness.