John Tory continues to give all indications of either being a simpleton or having an unerring instinct for pandering to the simple-minded. His latest symptom in this regard is his statement that he intends to ensure that there is 'one law for all' enforced in respect of aboriginal blockades. His comments, reported in CBC, suggest that he would deal with blockades, first, with a good stern talking to, followed by more aggressive court action.
An aboriginal blockade can in fact constitute one of the most challenging issues that a government, a band council or a court can face. They often arise out of complex legal situations and give rise to difficult questions of political legitimacy and enforcement. In fact aggressive judicial, followed by aggressive police, action is often just what the blockaders want, as their actions are fundamentally political, not legal, in nature. For them the political theatre of confrontation in the courtroom and on the line serves to rally their people around their cause and to harden the views of their constituencies.
The first problem with the 'one law fits all' approach is sorting out the legal rights and wrongs of the situation at hand. Say you and your neighbor have a dispute over a driveway that you say is yours and your neighbor says is a common driveway. One method the common law has always recognized for resolving the dispute is for you to put up a gate and see what happens. If the neighbor goes away -- well that is strong evidence that you were right. If the neighbor removes the gate or goes to court -- well that is a different story. Whether you were lawfully exercising your rights or unlawfully interfering with your neighbor's rights is something that will remain to be seen. In aboriginal law there are few blockades that do not arise in much greyer situations than one that can arise between neighbors.
Of course in these disputes one party or another can always go to court for an interlocutory injuction -- that is an injunction that is put in place before the rights and wrongs of the situation are straightened out. If a blockade is continued in the face of such an injunction then there is a clear legal problem -- contempt of court. Then a problem that is grey and is open to negotiation is converted into a true rule of law issue and the question then becomes enforcement.
If the injunction is enforced and contempt charges laid, then often the scene will be one of violence or of little old ladies and children being dragged away by riot police. These scenes will tend to smear Canada internationally, sicken us domestically and serve as a rallying point inside the aboriginal community. British Columbia's experiences at Clayquot Sound and Haidi Gwaii (the Queen Charlotte islands) have taught the British Columbia government that lesson in spades. There in each case the government and the logging companies won the injunction and contempt of court battle but lost the political (and ultimately legal) war.
On the other hand, if the injunction is not enforced, then the authority of the Court system is brought into a certain degree of disrepute. Third parties and the public feel that dearly held principles around the rule of law are being flaunted with impunity. This is turn leads to resentment and undermines political support in the general public for negotiated resolutions.
What is often missed by bystanding observers in these situations as well is that blockades often (but not always) reflect internal divisions within aboriginal communities and often arise as matters get close to being resolved. In many cases band councils or other traditional forms of tribal governance are in negotiation with governments or industry over the resolution of a claim or dispute. Within the community there is a segment either with different interests or different views who feel (rightly or wrongly) that their interests have been neglected in these circumstances. The approach of a final settlement will usually makes these concerns very concrete and the aggrieved part of the community will begin to look for menas to make its views known. Often -- particularly if the next council election is some time away -- they take the most direction action available to them and a blockade is set up.
People like John Tory fail to recognize that such blockades thus have the effect of creating serious issues within the aboriginal community. The elected band council is suddenly faced with a dilemma: does it support the blockade or not? If it does, then often negotiations will end and the Band will find itself faced with an escalating situation. If it does not, then it faces being painted as a group of 'apples' (red on the outside -- white on the inside) or sell-outs within their communities. As long as matters do not escalate however, most aboriginal governments can manage these matters themselves through traditional or political processes. This may involve finding ways to satsify the blockaders' concerns or alternatively bringing social or even legal pressure to bear to end or minimize the blockade. Once the courts are brought into the matter the dynamic changes -- and not for the better.
Once the courts are brought in there is almost irresistable internal pressure brought to bear on the First Nation government to support the blockaders. This can range from providing legal support or providing physical and political support on the ground to the blockade. Furthermore, once matters get to the stage where the police are being brought in to break up the blockade on behalf of government or industry on what is perceived to be First Nation's land -- well, it would only be a council intent on political suicide that would not fall in line with the blockaders. This generally results in an hardening of positions, the loss of trust at the negotiating table and to extended litigation over the underlying rights issue. In essence, the intervention makes it inevitable that the First Nation as a community act to prove that it in fact had the rights it claimed and was acting lawfully and legitimately. The possibility of sensible, creative settlement is of ten lost for months or years, if not forever, as a result.
In fact governments have learned from lessons of the past that blockades -- particularly aboriginal blockades -- require a nuanced approach. In some cases court and the police are the answer. In other cases there are 'work-arounds' (for example a blockade is allowed to stand because there is an alternative route into the relevant area). Finally in some cases the solution lies in pressing ahead with negotiations under the shadow of the blockade. If nothing else, one would have thought that this would have been the lesson learned from the events at Ipperwash and the Report of the Inquiry into the Ipperwash confrontation. By not responding with force and might, the government can often demonstrate to the aboriginal government and to the larger aboriginal community that it is dedicated to the resolution of issues through negotiation or final legal determinations of rights. The measured lack of response thus increases the legitimacy of the government's actions, the First Nation government and any final settlement in the eyes of the aboriginal community.