Although this pandemic has brought major shifts in the ways we are working, relating, and coping with new realities of daily life, the tide of Rights Recognition seems to have largely remained still. Even during this unprecedented trying historical event, Indigenous Nations are having to remain vigilant in exercising and protecting inherent rights.
British Columbia distinguished itself from other territories and provinces in Canada when the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) was passed into provincial legislation through Bill 411. The provincial legislation seems a signal that the provincial government is prepared to reconcile its relationship with Indigenous peoples within British Columbia. For a long time, UNDRIP has been seen as merely aspirational, without enforcement mechanisms to uphold the rights it enumerates. With UNDRIP in force and effect provincially, it should be able to be used to justify various acts of sovereignty exercised by Indigenous Nations and communities, including to protect their people and traditional lands from the infiltration of COVID-19.
Since COVID-19 took root in Canada, Indigenous Nations across the province have declared “States of Local Emergency” to limit the possibility of exposure to members and residents as the virus has continued to rapidly spread. These declarations often came after earlier proactive attempts to safeguard communities were ignored. Indigenous Nations, both urban and remote2 had already been exercising their decision-making authority to protect their people and lands by implementing curfews, creating task forces and internal relief funds, banning non-essential travel out of or into community, closing public lands, beaches, and harbours, calling for public shaming of those who violated these orders, redistributing goods, passing by-laws allowing for complete community lockdowns lasting 14 days, and the imposition of fines for those found to violate these measures.
The Heiltsuk Nation implemented almost all the aforementioned measures starting with a formal travel advisory. Issued March 27, all non-Heiltsuk members and non-residents will be turned away unless they are essential staff. This applies to travel by air, ferry and vehicle. A community lockdown was then ordered; members and residents who did leave community during the lockdown period could be dis-allowed re-entry. Next, the Shearwater harbour, which is a usual refueling stop for those traveling by boat to Alaska, refused service and publicly shamed those who ignored the radio notifications that the community was closed to non-members and non-residents. Finally, on April 2, the Heiltsuk Nation enacted the “Heiltsuk Disease Emergency By-law”3 allowing the Heiltsuk Tribal Council, in conjunction with the governing body for rights and title, to declare a temporary “disease emergency” due to COVID-19. Temporary measures could include mandating the enforcement of fines up to $1000 and or imprisonment not exceeding three days.
The inherent jurisdiction of Indigenous Nations was undermined by the Minister of Public Safety, Mike Farnworth, on March 26 when he rescinded the declarations made in all places except for Vancouver. The decision has been justified because the government wants all communities to act in co-ordination with provincial leadership to avoid a patchwork response to the virus.
This despite the fact that Bill 41 should mean Indigenous Nations have the right to decide what happens on their traditional lands and jurisdiction over local affairs as well as the right to health, housing, security of the person. Indigenous leaders and their communities must continue guarding themselves against the further infiltration of both the virus and colonialism.
1 Bill 41, Declaration on the Rights of Indigenous Peoples Act, 2019, 4th Sess, 41st Parl, British Columbia, 2019 (assented to 28 November 2019) SBC 2019, c 44. | ↩
2 Some Nations exercising their sovereignty include the Heiltsuk, Nuxalk, Wuikinixv, Kitasoo/Xa’xais, Haida, Haisla, Hagwilet, Nisga’a, Witest, Toosie, Tl’esqox, Tl’etinqox, Xeni Gwet’in, Hesuiate, Ahousit, Ucluet, Tla-oqui-aht, Nuu-chah-nulth, Tseshaht, Musqueam, and Skwxwú7mesh. | ↩
3 Disease Emergency By-law, s.81(1)(a) of the Indian Act, R.S.C. 1985, c.I-5. | ↩
Editor's Note: Dallas prepared a list of "Displays of Sovereignty" that have taken place over the past few months. We invite you to read this list here.