Three Sovereignties and The Hope of Jurisdictional Jamming

The concept of sovereignty has many different definitions and the realities of sovereign power apply in different ways, to different people at different times. Currently in Canada there are at least three different forms of sovereignty that competing for legitimacy and power, especially in regards to control/protection of the land and natural resources as well as the economic models that govern ways-of-life for many people. Three of the competing formulations of sovereignty that are at play are: 1) Canadian national sovereignty, 2) multinational corporate sovereignty, and 3) forms of indigenous sovereignty.

Canadian national sovereignty is the formulation that would certainly resonate with most mainstream Canadian conceptions of sovereignty. That is, the territorial jurisdiction of a nation state, which is entitled to its own self-determination and governance. The upcoming Canadian election is the single most important national ritual by which individual citizens are able to get out and choose which political candidate they want to be in charge of administering Canadian sovereignty. After all, in a country like Canada elections are envisioned to represent a certain “popular sovereignty” in which the government is given legitimacy to make and execute laws because it is the will of the people themselves.

Increasingly there is another type of sovereign power that is challenging the traditional boundaries of nation-state sovereignty based on international trade laws that allow corporations to sue countries if they oppose corporate projects within their territories. Corporations can even sue for “lost profits” if the country restricts corporate activities that damage the environment or disregard basic human rights.  For instance, agreements such as the Comprehensive European Trade Agreement (CETA) 1 which Canada signed onto in 2014, as well as the massive Trans Pacific Partnership (TPP)2 which is currently in the works shift the balance of sovereign power away from the state into international space. These trade deals allow corporations to trump national sovereignty through new forms of legal “investor-state dispute settlement” (ISDS) mechanisms.3. ISDS’ allows corporations to sue countries at international trade tribunals (the proceedings of which would be secret in the case of the TPP) where their grievances would be judged by a panel of three corporate lawyers.3 For instance, a Canadian mining company have sued Guatemala for “lost future profits” after the country ended its license because its gold mining operation was causing extreme harm to people and the environment.  As international trade lawyer Luis Prado recently described to The Guardian, “The ultimate question in the case [of ISDS] is whether a foreign investor can force a government to change its laws to please the investor as opposed to the investor complying with the laws they find in the country.” 4

Indigenous sovereignty is unlike either national sovereignty or international corporate sovereignty (bearing in mind that there are many indigenous peoples, and hence no singular indigenous sovereignty). In fact, indigenous intellectual leaders such as Taiake Alfred have argued that even the term “sovereignty” itself is too inextricably linked with western colonialism to be truly liberating, suggesting rather that terms like “re-traditionalization” may be better paths to achieving “sovereignty free regimes of conscience and justice.”5 However, even within the limitations of western legal systems, traditional Indigenous rights to the land have been recognized in major decisions by the Canadian Supreme Court, for instance, the court’s assertion that the Tsilhqot’in people of so called British Columbia have an inherent right to govern their traditional lands.6

Sovereignty is about power and the legal regimes that dictate how power is able to work. The three types of sovereignty briefly described above all suggest very different arrangements that dictate power relations. In the case of national sovereignty, the end game of power is to maintain, preserve and in the case of colonialism, increase the territory and people under state sovereignty. Rhetorically, the objective of preserving the Canadian state’s sovereign legitimacy has been used to justify the recent anti-terrorism legislation (Bill C-51).7 The way that the rhetoric functions involves the government making strong public claims that there is a clear and present danger that jeopardizes the Canadian state (today, this is usually the over inflated spectre of Islamic extremism) which is used to justify laws like Bill C-51, which make it legal to suspend civil liberties, compromise privacy and other strip away other legal protections citizens normally have, all in the name of protecting the country…

However, the practical consequences of legislation like Bill C-51 (which was intentionally timed to coincide with the massive new multinational trade agreements mentioned above) is not make Canada safer, but rather to legitimize the sovereignty of international corporations. The adoption of investor state dispute settlement mechanisms makes it possible for corporations to influence Canadian laws and claim damages for “lost future profits” on the basis of rulings under international corporate law, while the costs incurred – both in terms of legal fees and settlement payments – will be off-loaded onto the backs of Canadian tax payers at the expense of social and environmental spending. These processes of making Canada “open for business” are effectively giving away the power of Canadian sovereignty to greedy corporations (which include many individual Canadians) who are driven by the logic of bottom-line of profit and are accountable only to their shareholders.

Rather than preserving Canadian sovereignty, legislation like Bill C-51 will be used to ensure that multinational corporations can pursue their major interests in resource extraction without interference by citizens and indigenous people opposed to these destructive projects. For instance, under Bill C-51, any one interfering with “critical infrastructure” can now be considered terrorism. In Canada, where direct action has been effectively able to stop destructive projects – from logging old growth forests to massive and highly unsafe pipeline projects, these laws are meant to stop popular political involvement. It is clear that rather than reflecting the will and values of the majority of Canadians, the Harper government passes laws that dis-empower people and uses Canadian sovereignty to facilitate the priorities of multinational corporations.

This type of intimate legal cooperation between the Canadian Conservative party and large multi-national corporations is symptomatic of the colonial-capitalism which is leading to an increased centralization of wealth in the hands of fewer people, causing increased environmental harm, labour exploitation and criminalization for everyone else. The recent move of Canada’s former Minister of Foreign Affairs, John Baird, directly from government to the boards of Barrick Gold corporation and the Canadian Pacific Railway (which ships a great deal of tar sands bitumen) is just another example of the revolving door between government and industry.8 The distinction between public servant and private profiteer seems to have collapsed.

Colonial-capitalism has fused alliances between elite interests with national and international forms of sovereignty, greedy and violent motivations that are starkly opposed to indigenous law and the source of power which these ancient systems draw upon – the land and the people. Increasingly the depth and wisdom of indigenous systems of law and knowledge are being “re-discovered” by non-indigenous people who are recognizing the interdependence of life and the threat that current capitalism poses. (For a great commentary on these issues see Canadian Metis anthropologist Zoe Todd recent post).9 Climate change has finally begun to enter into serious mainstream international political discussions among global heads of state such as at this month’s G-7 meeting, during which the elitists discussed longterm (i.e. 100 year) plans to end the dependancy on fossil fuel.10 We must not forget that these “progressive” statements are being made by the same super-elites who themselves are positioned squarely in the realm of national and international sovereignty which is driving the colonial-capitalist agenda that they benefit so greatly from. These “longterm solutions” do nothing to address the immediate and continued destruction of indigenous ways of life – even though these leaders now (glibly) acknowledge that human interdependence with the land is a legitimate and necessary for the survival of all people.

So how can indigenous sovereignty be asserted in a time when colonial-capitalism is re-inventing itself, not only in terms of the increasing interface of national and international sovereignty, but also through quickening changes to local-level implementation of exploitative projects in the form of “Public-Private-Partnerships.”11 As a non-indigenous, white-settler, I would humbly suggest that indigenous sovereignty (or the force from which the concept derives) has been, and continues to be always already present, and that this must be the basis for any real change. Happily I think this is happening, though it may not always be happening in explicit ways. For instance, there is massive popular support against Canada’s secret police legislation, as well as the Harper government’s blatant embrace of plutocratic greed and their willingness to sacrifice people, water and land in the name of great profit for the few. There is certainly an remarkably powerful indigenous resurgence happening all across Canada, and this has much to do with young leaders breathing new life into the fires of traditional teachings and laws and asserting the power and responsibility that these entail. This indigenous momentum is not reducible to, but neither is it unrelated to a vast cultural and emotional whirlwind that is swirling among the conversations of many non-indigenous people who know in their hearts that these corporate-government pacts are exploitative, harmful and have not been done in their best interest.

Indigenous sovereignties go a long way toward providing the basis – in terms of values and practices – that are needed to change the nature of power relations in this country, and these same values and practices are resonating strongly with the emotions of an enormous segment of many Canadian at this critical historical juncture. The more that this movement coalesces in its diverse and complex ways, the more it is generating power is simultaneously creating a true alternative to the colonial-capitalist model. The mainstream conservative and liberal voices take slightly different positions at different times, with the effect of spitting issues-based propaganda to their target audiences. It is increasingly clear, that while the voice might sound different, all the while it is still coming from the same big fat, insatiable mouth of colonial-capitalism.

What is needed is a way of disrupting the flows of colonial-capitalist power, de-legitimating this toxic brand of sovereignty, and beginning to open up more and more spaces where positive, land-based, relational forms of sovereignty can flourish. Of course this is an ongoing process that is well underway in many different areas, and this is cause for celebration in the midst of the all-too-normal, shallow and/or bleak version of truth put forward in mainstream media.

Undertaking processes that encourage shifts in the balance of sovereign power need not be seen in vague or unclear terms. Interventions need to be locally specific and responsive to particular moments in time, the realities facing the people involved, and the cultural and emotional context in which these efforts must take place. Strategizing such interventions might usefully be thought of in terms of: 1) jurisdictional jamming and 2) practical creativity.

The fact is, there is currently a lot of social-legal and political change happening in at many levels in Canada. There have been drastic changes to the laws governing environmental protection,12 huge increases in mass surveillance and policing13 as well as at the level of multi-national trade agreements. It’s hard to keep up with, let alone make sense of. This incoherence can actually be made to work to our advantage. All this legal and economic change has create a big mess of policy changes that has left the bureaucrats and people working on-the-ground to try figure out what it all means in terms of implementation. For instance, who is responsible for approving new mining developments? who needs to consulted? what are the terms of Impact Benefit Agreements14 who is to monitor these operations and to what standards? what are the consequences for misuse? etc. etc.  This big mess exists across pre-existing jurisdictions – federal, provincial, municipal, first nations. Most often, the confusion around jurisdictional responsibility has been used to the benefit of corporations to cut corners, lower costs and basically do whatever they want (so long as they kick-back cash to their political friends). However, the shifting of jurisdiction has created a lot of cracks and gaps which present opportunities for JAMMING them. That is to say, uncertainties around legality as well as protocol and by-laws governing implementation expose the paradoxes that exist at the heart of colonial-capitalist rhetoric. So when these inconsistencies are made clear, brought to public attention and challenged in legal terms, they can truly act like a monkey wrench in the gears of a seemingly unstoppable machine. In some cases this creates opportunities for very effective direct action. Bodies on the ground plus challenges to the jurisdictional legitimacy of colonial-capitalist projects can grind major projects to a halt and force them into legalistic battles, and call attention to the greedy stupidity underlying their whole way of acting.

A fantastic example of an extremely effective an on-going instance of jurisdictional jamming is the Unistoten Camp on unceded Wet’suwet’en territory in so called northern British Columbia.15 The camp sits on the pathway of 5 proposed pipelines that would carry fracked gass from BC as well as Bitumen from the Athabasca Tar Sands across a fragile ecosystems to the ocean port of Kitimat, where the toxic payload would be shipped through treacherous waters to foreign asian markets (a la TPP).

The camp’s spokes person Freda Hudson makes it clear that their direct action is a means to assert their legal rights and traditional sovereignty. Below is an excerpt from a speech she gave recently in Vancouver.

“The indian act system is different than our hereditary system. The indian act system was imposed on use by the federal government about a hundred years ago, and it’s not really a decision making power, I always say, it’s a group of people who sit around a table to implement the Indian act for the federal government. Because they don’t truthfully have any decision making power at that table. And our hereditary system has been around for thousands of years, and our people still have that intact and its run through our feasts. I belong to the Gatsagu clan, and there’re four other clans. And the head chief, it’s their responsibility to ensure that they’re taking care of the lands, and ensure that all of the clan members have equal use of the territories. And so that’s the government system we still have intact. And we’ve told the industry, we’ve sent the industry letters and we’ve sent the province letters, saying indian acts don’t have jurisdiction on our territory. The pipelines are even going through any one of those reservations. The reservations are the only place that they have jurisdiction of.  Just like municipalities they have a boundary, and around that boundary, the chief and council can only make decisions within that boundary, based on their policies that come from the Indian Act. So we haven’t accepted that these pipelines are going to come through, we are still saying a firm ‘No’ and we will do everything in our power to ensure that they do not come through.” 16

By asserting their indigenous sovereignty and protecting the land, a small group of people at Unistoten camp have used a form of jurisdictional jamming to throw a very successful wrench into the gears of a major national and multinational sovereign powers. This is one powerful example of how systems of power can be challenged and re-appropriated locally in ways which are less violent and destructive. Such actions create spaces of opportunity for people to pry apart the cage of colonial-capitalism and create more sustainable spaces which exist and operate according to a different mandate, a way of life that is accordance within a different and more interdependent form of sovereign rule.

There are many opportunities for jurisdictional jamming, especially in this period of chaotic legal change and popular social unrest. It requires a degree of practical creativity to both see these opportunities and to begin to explore where the cracks lie both jurisdictionally as well as in the popular rhetoric used to make the status quo seem legitimate. Once these cracks have been identified, they can be filled with fun and positivity, they can become sites which demonstrate that a different way of living is possible. Occupying these spaces as long as possible, even if it is only for a few days is worthwhile and extremely important. It is practice for ongoing struggles and it is great community building, it is a way of prefiguring different ways of organizing and of being in meaningful relationships with other people as well as the land.




6. Taiaiake Alfred. “Sovereignty.” In Sovereignty Matters: Locations of Contestation and in Indigenous Strategies for Self-Determination, ed. Joanne Barker, (University of Nebraska Press, 2005): 33-50. quoted in, Mark Rifkin, “Indigenizing Agamben: Rethinking Sovereignty in Light of the “Peculiar” Status of Native Peoples. Cultural Critique, No. 73 (2009): 88-124.










16. [this excerpt comes from at 9:00-12:03 in the video].


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