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.

1. http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/ceta-aecg/index.aspx?lang=eng

2. http://www.eff.org/issues/tpp

3.http://www.isdscorporateattacks.org

4.www.isdscorporateattacks.org/#!judges/c1t77

5.www.theguardian.com/business/2015/jun/10/obscure-legal-system-lets-corportations-sue-states-ttip-icsid?CMP=share_btn_tw<

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.

7.http://www.thestar.com/news/canada/2015/03/30/john-bairds-appointment-to-barrick-job-raises-questions.html

8. http://www.thestar.com/news/canada/2014/06/26/supreme_court_grants_land_title_to_bc_first_nation_in_landmark_case.html8 http://rabble.ca/blogs/bloggers/behind-numbers/2015/06/senate-passes-c-51-what-now

9. https://zoeandthecity.wordpress.com/2014/10/24/an-indigenous-feminists-take-on-the-ontological-turn-ontology-is-just-another-word-for-colonialism/

10.http://www.nytimes.com/aponline/2015/06/07/world/europe/ap-eu-germany-g7.html

11.http://www.p3canada.ca

12.http://canadians.org/blog/harper-government-braces-court-battles-over-navigation-protection-act

13.http://www.theglobeandmail.com/news/politics/data-collection-program-got-green-light-from-mackay-in-2011/article12444909/

14.http://www.miningfacts.org/Communities/What-are-Impact-and-Benefit-Agreements-(IBAs)/

15. http://unistotencamp.com

16.http://www.stateofextraction.org/saturday-indigenous-roundtable-rights-land-and-alternatives [this excerpt comes from at 9:00-12:03 in the video].

Growing Indigenous Mobilization for the 2015 Federal Elections

A number of youth-led, grass-roots campaigns are encouraging aboriginal peoples to vote in the upcoming federal elections. A Facebook page entitled, “Winnipeg Indigenous Rock The Vote In The 42nd Federal Election Oct 19 2015” already has around 800 members 1. The “Indigenous Rock the Vote” movement is building on a successful “Rock the Vote” campaign during the recent Mayoral Elections that saw the election of Winnipeg’s first Metis Mayor, Brian Bowman. While young people are taking the lead in mobilizing indigenous voters, this should not be read as an implicit endorsement of the Canadian system of governance. Rather, it is one part of a broader strategy to fend off continuing colonial dispossession as it manifests in particular areas. This includes ensuring that people who do decide to vote have the proper documentation to cast their ballot, including proof of residence. This is a particular issue on some reserves where there are no formal street addresses. In the past, this did not pose such a problem since there was an accepted process that allowed community members to “vouch” for the residency of other members of the community. This practice is no longer considered valid by Elections Canada. An indigenous youth organizer from Saskatchewan described the consequences of such procedural shifts as both depressing and confusing. “The most heartbreaking stories that I hear are the elders who found a ride, go where they needed to go to make a vote and then they get turned away and they don’t understand why,” she says. “They’re crushed because they made it out and then they get turned away and it’s a hard thing to explain to them” 2.

1. https://www.facebook.com/groups/377942925701349/.
2. http://www.eaglefeathernews.com/news/index.php?detail=1030

“Winnipeg Cleaved In Two”

Today’s Winnipeg Free Press carried this video from 2006 1. The topic of the city’s division is again in the headlines with recent Maclean’s article and the surge of discussion it has provoked 2. The song poses a stark dichotomy – “who would argue” that the division “is anywhere else” but between the North End and the rest of the city. “Who would argue” that it’s anything but the division between indigenous and non-indigenous people? The song and video implies a binary that . Can these divisions be seen in less dichotomous terms than race and space? How do emotional divisions fit into these racialized? What role could affect – an emotionally engaged public – have in re-defining how this apparent antagonism is framed?

1. http://www.winnipegfreepress.com/multimedia/video/features/key-of-bart-ywg-290343421.html?cx_navSource=d-tiles-2

2. http://www.macleans.ca/news/canada/welcome-to-winnipeg-where-canadas-racism-problem-is-at-its-worst/

‘Land is Relationship’ – Legality and Emotion

In a recent piece featured in Rabble.ca 1, activist, author and founder of Vancouver’s migrant justice organization, No One is Illegal 2 Harsha Wallia interviews indigenous scholar Glen Coulthard, whose recent book “Red Skins, White Masks” is getting much buzz these days 3. This interview – and indeed the ongoing conversation between immigrants and indigenous peoples – represents a growing movement based on new relationships that challenge the dominant discourse of colonial Canada. For Coulthard, these relationships are inextricably tied to the land:  “Land is a relationship based on the obligations we have to other people and the other-than-human relations that constitute the land itself.” 

Coulthard discusses the powerful role of emotions in the current indigenous resurgence. While he recognizes the harmful impacts of internalized anger within communities, he suggests that this “anger and resentment [can be] a critical, even cathartic, antidote to the current infatuation with “reconciliation” and ‘forgiveness,'” and that “There is another story to be told about these emotions.” In particular, Coulthard stresses that “these emotions can also serve as a catalyst for change. They’re explosive and prompt people to act, to take matters into their own hands, individually and collectively.”

These emotional dynamics raise a number of important questions about what causes these powerful emotions to be expressed in harmful ways and what it takes for them to drive transformation? Are their particular issues that serve as affective edges which, once crossed, have a determinant impact on whether emotional expressions have a productive or destructive outcome? Unfortunately this is not a discussion that Wallia and Coulthard address directly in the interview. Coulthard does, however, indicate that at the core of relationships with the land as well as relations with other people, the issue of sovereignty is always in play.  This has led Coulthard to have “…concerns regarding how some non-Native movements express their support for Indigenous sovereignty movements because they may see similar interests aligning around, say, environmental protections but have little interest in supporting Indigenous peoples’ right to self-determination. This seems overly instrumental, not based on an ethical obligation to support Indigenous land and treaty rights.” 

New relationships need to involve new modes of relating to state sovereignty that reflect and respond to the emotions and experiences of different groups of people within Canada. This need for new relationships between Canadian state-sovereignty and the people is also a fundamental issue for groups like No One is Illegal. Colonial dispossession in other regions is a major reason why many of the most precarious migrants in Canada have been forced to take part in the global pool of migrant labour. Many immigrants and migrant workers continue to be forced into positions where they are treated as less-than-human, because of their marginal position in relation to Canadian sovereignty.  Going forward, these legal and emotional divisions provide a common terrain on which upon which alliances between indigenous peoples and immigrants is emerging. The full extent to which these relationships will be able to manifest in concrete actions and alliance building that are able to re-constitute Canadian sovereignty remains to be seen.

1.http://nooneisillegal.orghttp://rabble.ca/columnists/2015/01/land-relationship-conversation-glen-coulthard-on-indigenous-nationhood
2.http://nooneisillegal.org
3.http://www.upress.umn.edu/book-division/books/red-skin-white-masks

British instincts and feelings: John A. Macdonald at 200

January 11th marks the 200th anniversary of the birth of John A. Macdonald. On the eve of a federal election, the ambiguous legacy of the country’s first Prime Minister speaks to ongoing issues that actively shape the emotional landscapes of the nation. Macdonald is revered by many as one of the nation’s founders, a symbol of the hardiness of Canadian settlers and the source of Canadian values. However, the historical evidence gives clear indication that underlying Macdonald’s politics were racist ideas and crass political expediency, and that these features characterized the nation’s earliest relations with both indigenous peoples as well as non-white migrants. For instance, “while debating the 1885 Electoral Franchise Act in the House of Commons, legislation he later called “my greatest triumph,” Macdonald proposed that “Chinamen” should not have the right to vote on the grounds that they were “foreigners” and that “the Chinese has no British instincts or British feelings or aspirations.” He then claimed that the Chinese and Europeans were separate species: “the Aryan races will not wholesomely amalgamate with the Africans or the Asiatics” and that “the cross of those races, like the cross of the dog and the fox, is not successful; it cannot be, and never will be.”

Macdonald also demonstrated a consistent disdain for indigenous peoples, writing that it would be “extremely inexpedient to deal with the Indian bands in the Dominion as being in any way separate nations,” despite the original nation-to-nation nature of the treaties signed by indigenous peoples. He also was responsible for the creation of the residential school system – now widely recognized as genocidal in both its intent and its practices.

As the election nears, to what extent does the appeal to “British instincts” and “British feelings and aspirations” that MacDonald referred to continue to influence the popular narratives that flourish in different areas of contemporary Canadian society?

http://westcoastnativenews.com/aryan-canada-aboriginal-genocide-and-chinese-exclusion/

http://ottawacitizen.com/news/national/niigaan-sinclair-stop-apologizing-for-john-a-macdonald

http://rabble.ca/blogs/bloggers/jesse/2015/01/10-crimes-john-macdonald

First Nations Transparency and the Threat of Funding Cuts

Bill C-27 (formerly C-575), the First Nation Financial Transparency Act (FNFTA) is legislation that would require FNs to submit the finances of all band politicians including private assets. There are 55 FNs that have refused to comply with these orders, and in reaction the Harper Government has threatened to cut of all non-essential funding and hold back future funds. The legislation raises the issue of territorial sovereignty of First Nations to manage their own affairs without governmental interference, or punishment for failing to comply with demands that are not faced by many “Canadian” politicians. Critics also note that this issue is being used by the Conservatives to distract public attention from the rampant poverty, suicide and opposition to resource development that exist, by directing attention to and reinforcing the myth of “the crooked Indian.”  Onion Lake First Nation in Saskatchewan, itself a major oil producer, has launched a $50 million dollar lawsuit against the federal government for the damage that would be caused by the punitive measures involved in the FNFTA).

http://rabble.ca/blogs/bloggers/pamela-palmater/2014/11/stephen-harper-and-myth-crooked-indian

http://aptn.ca/news/2014/11/26/top-oil-producing-first-nation-launches-50-million-court-action-ottawa-transparency-act/

http://www.cbc.ca/news/politics/55-first-nations-risk-losing-funding-for-not-complying-with-transparency-law-1.2852538