Abstract

Excerpted From: Emma Feltes and Jocelyn Stacey, Crisis, Colonialism and Constitutional Habits: Indigenous Jurisdiction in Times of Emergency, 38 No Canadian Journal of Law and Society 1 (April, 2023) (100 Footnotes) (Full Document)

In 2017, wildfires swept across the territories of the Tilhqot'in and other First Nations in the central interior of British Columbia. The largest wildfire surrounded three Tilhqot'in communities. British Columbia declared what was (at the time) the longest state of emergency in its history and issued evacuation orders across the region. The RCMP attempted to enforce this evacuation order in the Tilhqot'in community of Tle'tinqox. When Chief Joe Alphonse exercised inherent jurisdiction, and powers under the Indian Act, to resist this order and implement his own emergency response, he was met with threats of violence and child apprehension.

Over critical weeks of wildfire response, the RCMP staffed roadblocks on highways to enforce provincial evacuation orders. Time and again, Tilhqot'in fire crews, health staff, and community members were held up at these roadblocks because the RCMP would not acknowledge the exercise of Tilhqot'in jurisdiction that took a different approach than the Province. In Chief Alphonse's words, “the fires this summer were never a threat to our community. The bureaucracy and the governments ... were [the] threat.”

Fast forward three years to spring 2020, to the first wave of the COVID-19 pandemic, which later dwarfed past emergencies to become the new longest state of emergency in British Columbia's history. A very different set of “roadblocks” were in place. They were the Tilhqot'in Nation's own checkpoints, deliberated and decided upon by Tilhqot'in Elders and leadership, staffed by Tilhqot'in citizens. These checkpoints served to educate Tilhqot'in and non-Tilhqot'in neighbours and visitors to the territory about travel restrictions and protective measures that the Nation had in place to protect its members from exposure to disease. Meanwhile, they monitored traffic onto and off of reserves. Every day, checkpoint staff explained the emergency measures, implored people to abide by them, and withstood verbal abuse. For months Tilhqot'in staff and leaders worked with provincial and federal governments to have these checkpoints recognized--and funded--as legitimate measures. Eight months into the pandemic and after countless hours of advocacy, the Province amended its policy to make First Nations' checkpoints an eligible emergency response expense under certain conditions. It was a welcome policy change, but one that came long after the Tilhqot'in had discontinued the checkpoints because of the mounting costs borne by the communities.

The Tilhqot'in Nation is comprised of six communities spread over a large swath of territory in central interior BC as well as a large off-reserve population. As a Nation, the Tilhqot'in exercise jurisdiction over their nen, which means the entirety of the Nation's traditional, unceded territory, including its land, water, and resources. In 2014, the Supreme Court of Canada declared Aboriginal title to a portion of this nen under section 35--a first in Canada. The Tilhqot'in National Government (TNG) represents the Nation and advances its right to self-determination. TNG's co-authors are two white, settler academics--an anthropologist and a legal scholar--who have worked with TNG since the aftermath of the 2017 wildfires, when they were invited to support the Nation's efforts to document and analyze the jurisdictional challenges revealed in these instances of crisis. We have co-authored two reports for the Nation with Crystal Verhaeghe (<>Esdilagh). We continue to work in partnership with TNG to support its work to advance Tilhqot'in authority through crisis and beyond it.

Drawing on the research we have done across both of these reports and incorporating insights from critical Indigenous scholarship, we show how emergencies illuminate historic and evolving relationships between Crown governments and Indigenous Peoples in Canada. Specifically, our article is about the reactions of the Canadian state to the exercise of Tilhqot'in jurisdiction in times of crisis: the hidden and not-so-hidden policies and practices that emerge when British Columbia and Canada respond to extreme events; the contradictions between public and formal recognition of Tilhqot'in jurisdiction and the reality on the ground; and the implications of the jurisdictional questions left unanswered by section 35 of The Constitution Act, 1982. The RCMP's threats of child apprehension in the 2017 wildfires and the consternation in response to Indigenous checkpoints during the pandemic were national news--part of the shock and awe portrayal of emergencies as exceptional events. However, we argue, these are not exceptional responses. In fact, this article argues that these responses are revealing of deeply engrained assumptions about the Canadian state and its relationship with Indigenous Peoples. As we explain, emergencies highlight constitutional habits, the patterns of public decision-making that emerge in the immediate response to an emergency, so as to appear automatic.

We argue that these experiences of the Tilhqot'in Nation during the wildfires and pandemic reveal the assumption of Crown jurisdiction as an enduring constitutional habit. While headway is being made through policy and negotiation to advance Tilhqot'in laws and authority, these have yet to become engrained in the institutional practices of the Canadian state. When crisis strikes, Crown actors default to the well-worn habit of colonialism-- specifically the assumption of the Crown's exhaustive jurisdiction and corollary dispossession of Indigenous jurisdiction--by failing to grasp and even thwarting Tilhqot'in governance over emergency response.

Part I of this article introduces the idea of constitutional habit and shows how it flows from a range of existing critical literatures on emergency law and governance, including perspectives of Indigenous scholars writing from different Indigenous legal traditions. Part II focuses on the assumption of Crown jurisdiction as the specific constitutional habit at hand, tracking the habitual erasure of Tilhqot'in expressions of jurisdiction. Part III identifies a range of ways in which the habit of colonialism is revealed through the Tilhqot'in Nation's recent experiences of emergency, and Tilhqot'in efforts to exercise their own jurisdiction despite it. The article concludes with an observation about the mutability of habits (even constitutional ones) as we identify glimmers of a different set of practices revealed in these emergencies. It is these alternative habits--habits of coordination--that resonate with Indigenous scholars who emphasize how cultivating responsible relationships of coordination builds capacity to respond not only to emergencies, but also to a changing world.

[. . .]

Section 35 changed Canadian constitutional law, as has the Tsilhqot'in title decision. And yet, our work uncovers ways in which constitutional practice--revealed through habitual responses in the moments when Canadian governments are most pressed--remains grounded in colonialism. The habitual reaction of Crown actors in times of crisis is to double-down on assumed Crown jurisdiction--through strong-arm enforcement of inapplicable evacuation orders and tight-gripped control of COVID case numbers--ignoring and obstructing Tilhqot'in emergency laws and jurisdiction. One senior staff member remarked on how quickly institutions snap back to command and control. With each emergency, he described, “the institutions we thought we had made progress with go back to square one.” They “forget the relationship building [with the Nation] that has come before.”

Though seemingly engrained and systemic, the good thing about habits (even constitutional ones) is their mutability--made and unmade in both grand policy structures and in quotidian, everyday practice. Indeed, one of the heartening aspects of this work has been to see efforts to change made by emergency officials each time they encounter and are engaged by the Tilhqot'in. Fueling this change, though, are the sustained relationships that continue to develop in the periods between disasters. That this longer-term relationship building is beginning to take effect in Tilhqot'in territory further supports Whyte's critique of the current, presentist epistemology of crisis as the only response available. For the Tilhqot'in, and for others for whom mutual coordination is both an epistemological and jurisdictional norm, embracing constant change and employing a relational approach to preparing for it is habitual. For Canada and British Columbia, there are glimmers, at least, that this can yet be learned, becoming part of the constitutional story. This is especially promising in that it refutes the presumption that the goal of crisis response is necessarily a speedy return to the old state of affairs. Better habits for “normal” times can be forged out of crisis--potentially even anti-colonial ones.

Emma Feltes is a Fulbright Scholar and SSHRC Postdoctoral Fellow in the Department of Anthropology at Cornell University. Jocelyn Stacey is an associate professor at the Peter A. Allard School of Law (University of British Columbia, unceded Musqueam territory). The Tilhqot'in National Government represents the six Tilhqot'in communities and is introduced in the text below.