Shifting Authority: Indigenous Law-Making and State Governance

Abstract

How can Indigenous law-making affect state authority? I examine this in the context of Canada’s extractive sector, where I question how and when Indigenous laws prevail over state laws to challenge colonial authority and reassert Indigenous self-determination. Although the state claims supreme authority, Indigenous governments are enacting their own laws, laws that are sometimes in tension with those of the state. I demonstrate that while the state usually responds to contentious Indigenous law-making with conflict, under certain conditions Indigenous communities can incite the state to reverse its position to one of acquiescence or cooperation. By drawing on insights from three Indigenous communities in Canada, I offer four conditions under which Indigenous peoples and governments may be able to compel the state to relent and accrue authority, including by preparing to engage in a long-term project, by fomenting community cohesion, by exploiting evolving international norms related to Indigenous rights, and by offering viable governance alternatives to colonial legislation. By highlighting new sites of authority and resistance, this work underscores the transformative possibilities of Indigenous politics.

Une autorité en évolution : pouvoir législatif autochtone et gouvernance publique

Considering the overwhelming power of the state vis-à-vis Indigenous governments and communities, we would expect that Indigenous laws would not prevail over state laws when the two are in tension. And yet, across Canada and throughout the fourth world, Indigenous peoples are successfully institutionalising laws that contradict the priorities and preferences of the state. The question of why a state backs down during conflict with another actor is well-studied in International Relations. The International Relations literature examines credibility, appeasement, deterrence, coercion, compliance, and other strategic interactions during conflict, but considerations of Indigenous peoples and governments are limited to domestic politics. Indigenous peoples are almost never attempting to replace the sovereign state – indeed, most Indigenous scholarship on self-determination rejects the European concept of sovereignty both in the context of rejecting colonial domination and colonial conceptions of autonomy. And yet, in the cases outlined here, I reveal patterns in which the state cedes its authority to a seemingly much less powerful actor. The question remains: why?

While the colonial state limits opportunities for Indigenous peoples to realise their political objectives, Indigenous nations and communities have developed strategies, or a ‘plan to do as well as possible given one’s expectations about the interests and actions of others’ ¹ to push back against state control. In the context of the Canadian state, I classify Indigenous strategies to accrue authority into five categories: institutional, political, economic, collective action, and legal strategies. Certainly, these categories are not mutually exclusive and offer only a rough categorisation of the broad and creative spectrum of tools that Indigenous communities employ to respond to the state. This article specifically considers institutional strategies that Indigenous peoples, nations, and communities employ in their engagement with the state as part of a broader study of the ways in which Indigenous peoples resist colonial power. Institutional strategies include developing independent bureaucracies and laws and are the focus here.

The strategy of law-making opens space to both undermine colonial governance and entrench Indigenous rules, even as Canadian courts reaffirm Canadian sovereignty. Indigenous laws surrounding natural resources are particularly contentious and a key starting place for Indigenous communities struggling against oppressive colonial governance. These strategies can be legal, as in the case of First Nations that have made agreements with other levels of government to acquire jurisdictional authority, or illegal, such as First Nations communities demanding payments for access to lands that are legally owned by the Crown. Regardless, they challenge the authority of the state by disputing its jurisdiction and undermining its legitimacy. For instance, Batchewana First Nation, near Sault Ste. Marie, Ontario, holds annual canoe crossings from the Michigan to the Ontario side of the St. Mary’s River to recognise the right given to First Nations to freely cross the border in the 1794 Jay Treaty. In a confidential 2016 interview, one Ontario Indigenous leader said that they encourage mining proponents ‘not to worry’ about Canadian regulations or rules because they have their own. ²

Drawing on the International Relations literature on authority and legitimacy and Indigenous politics literature to respond to the puzzle of why states back down when confronted by Indigenous laws that conflict with their own, I argue that under certain conditions Indigenous communities can incite the state to reverse its position from one of conflict to one of acquiescence or cooperation by forcing the state to reach the outer limits of the costs it is prepared to incur. By exploring the cases of three First Nations ³ communities in Canada, the Kitchenuhmaykoosib Inninuwug First Nation (KIFN) in northern Ontario, the Tahltan Nation in northern British Columbia, and the Sipekne’katik First Nation in Nova Scotia, I argue these communities compel the state to reach these limits under three necessary conditions: by preparing to engage in a long-term project of potentially many decades, by ensuring community cohesion, and by exploiting evolving international norms related to Indigenous rights. I also propose a fourth condition whereby Indigenous peoples can progress beyond undermining the state to accruing authority, which occurs when Indigenous leadership can offer viable governance alternatives to colonial legislation. I argue that when Indigenous governments can offer their peoples a legal structure that better responds to their particular priorities, that responds to current capacity and expands future capacity, and is perceived as more legitimate than those of the state, these communities can accrue authority.

The objective driving this change is the nation’s desire for self-determination. To support their self-determination, Indigenous nations enact legislation and other rules and regulations that better serve their communities than those imposed by the state. They too engage in a cost-benefit analysis, developing expectations about the state’s response that evolve depending on the state’s perception of the threat posed by the Indigenous challenge to state authority. For some Indigenous communities, achieving these four conditions may simply be too costly. Many lack the capacity to achieve these conditions, focused as they are on more immediate quality-of-life issues within oppressive colonial structures. Under the conditions outlined above, I demonstrate one path by which some Indigenous communities and nations can reassert their authority over their lands and lives despite the overwhelming colonial power of the state.

In each of the three cases that I explore, the state’s initial response was confrontational, but eventually evolved to a more cooperative approach when the nation or community forced the state to capitulate by pushing the state to outer reaches of the costs it is prepared to incur. ⁴ This state change in behaviour allows the nation or community to pursue its priorities and preferences, even when they contradict those of the state. To illustrate my argument, I examine two cases, the KIFN and the Tahltan Nation, in which the nation or community successfully pushed a level of government that we would expect to have more authority into altering its response to Indigenous law-making from one of conflict to one of cooperation. I also examine a case in which the conflict is ongoing, the Sipekne’katik First Nation.

This is not a story of domestic politics. It is not a story of federalism. This is a story that highlights the transformative effects of Indigenous politics. Given the ongoing, and in some instances worsening, nature of the threats and challenges facing Indigenous peoples, investigating the politics that underpin Indigenous autonomy and survival is a critical variable for assessing current and prospects of contested politics globally and within settler-colonial states, and for broadening the ontological and epistemological positions reflected within International Relations. In the following sections, I begin by providing an overview of the literature exploring Indigenous self-determination and authority, generally from the perspective of Indigenous scholars. I then present my theoretical framework, drawing on the constructivist and post-colonial International Relations scholarship, as well as Indigenous scholars’ theorisation on the concept of resurgence. I follow by offering an overview of my methods and move into the three communities’ profiles. I draw out common themes between the three cases and conclude by offering implications for International Relations of recognising the power of Indigenous politics.

Indigenous Politics and State Authority

The research presented here joins the growing body of work that incorporates Indigenous governance into theories of multilevel governance, ⁵ while expanding it to incorporate insights from International Relations theory. Increasing numbers of non-state or non-central government actors participating in international affairs have blurred the boundaries of the domestic/international or inside/outside the state. Rosenau describes these as ‘processes of bifurcation’ whereby authority is divided between the central government and other sites of authority. ⁶ Hurd defines legitimacy as ‘the normative belief by an actor that a rule or institution ought to be obeyed’, and when that legitimacy is in doubt, the rule or institution loses its authority. ⁷ The relationships that I describe are driven by each actor’s desire for authority. I conceptualise authority in the context of the ability to make and enforce bureaucratic rules that allow the actor to realise its preferences. These formerly – or formally – marginal sites of political activity present new challenges to the mutually constitutive relationship between state authority and legitimacy.

This is particularly true for Indigenous peoples and nations. Gilio-Whitaker reminds us that George Manuel’s 1974 book The Fourth World: An Indian Reality, is about ‘. . .advancing the idea that Indigenous peoples are nations within larger geopolitical realities. Simultaneously within and beyond the conceptual limits of the state. . .’. ⁸ Green expands on this idea to explain, ‘Claims to indigenous self-determination can (and have) helped shepherd the structures and practices of federalism from a colonial towards a postcolonial order’. ⁹ Some scholars urge the state to recognise that power sharing mechanisms that carve out a place for Indigenous nations could serve to enhance the state’s stability or security. ¹⁰ Others argue that Indigenous power, principles – and ultimately, autonomy – represent a threat to the well-being of the state. ¹¹

Indigenous peoples have engaged in contestation since contact and their goals remain the same as those of the immediate post-contact era, namely, nationhood and decolonisation. ¹² Indigenous scholars offer conceptualisations of self-determination, sovereignty, autonomy, and authority that are complex and overlapping. According to Kuokkanen, Indigenous peoples’ share a common definition of self-determination that focuses on ‘increased autonomous authority, control, and decision-making powers of their own affairs’. ¹³ Much scholarship of Indigenous governance and independence defines self-determination in the context of responsibilities and relationality. ¹⁴ Deloria, Jr. and Lytle and Kuokkanen both reference integrity in their definitions of self-determination. ¹⁵ For Barker, Indigenous peoples desire ‘to be recognized as sovereigns and to be related to by their nation-states as forming legitimate governments with rights to direct their own domestic policies and foreign affairs’. ¹⁶ The struggle for self-determination is most clearly based in land, as Indigenous relations with the land are diametrically opposed to settler conceptions of land as capital. ¹⁷ Gilio-Whitaker writes that demands for self-determination are ‘grounded fundamentally in their ability to control their territories and resources and the ability to be self-governing – without interference from state governments‘. ¹⁸ Rather than procrustean, these articulations are heterogeneous both across nations and within nations, however, according to these Indigenous scholars, there are principles of self-determination that Indigenous scholars recognise as ontologically and cosmologically Indigenous.

International Relations tends to assume that authority is zero-sum: the authority of one actor rises at the expense of another actor’s authority. Liberal International Relations theory tells us, however, that authority is more complex than a dichotomous variable and actors interact and combine to yield varied ‘constellations of authority’. ¹⁹ Political authority is ‘rightful or legitimate rule;’ actor A – the state - has a right to issue orders and actor B – the subject - has a duty to comply. Moreover, if B does not comply, A has a right to enforce its orders. ²⁰ This authority rests on the legitimacy, or broad recognition, that actor A has these rights. Without such legitimacy, A loses its authority.

During conflict, the state has three choices: it can back down, it can do nothing, or it can propel the conflict. Such scope of action may be even further restricted when we consider that doing nothing could either exacerbate or alleviate the conflict. The state should have a right to enforce its demands, but the subject of those commands might not always comply. This is particularly true when the state is not prepared to engage in unlimited coercion to convince the subject to comply. When the subject’s preferences diverge from the state’s commands, both actors must decide the costs they are willing to endure. In their strategising, Indigenous peoples calculate the costs that the state is willing to undertake and engage in a cost-benefit analysis to determine their strategies and scope of their actions. The profiles of the communities outlined here demonstrate that Indigenous peoples are increasingly adept at recognising the outer limits of costs that the state is willing to incur.

In states that govern by relying primarily on legitimacy rather than coercion, the costs the state is prepared to incur have limits defined by social norms. There exists a social contract between governed and government by which citizens cede some of their personal autonomy in exchange for the services of the state. However, social norms related to compliance in colonial relations are structured by oppression and domination and are therefore much looser than those related to the settler population. I outline three conditions in which the state backs down, the resolve of the community for long-term conflict (A), ensuring internal cohesion within the nation or community (B), and the capacity to access changing norms related to Indigenous rights (C). But although these conditions encourage the state to back down, they do not explain why the state backs down. These three necessary conditions force the state to realise the maximum costs it is prepared to endure to maintain its authority, at which point, the state must either back down or exceed its costs

Maintaining long-term resolve (A) plus ensuring internal community cohesion (B) plus exploiting evolving social norms (C), undermines state authority by challenging the social norms that legitimate state authority. The state is forced to retreat or cede some of its authority rather than accumulating the costs necessary to coerce the community or nation. AB is not sufficient to undermine state authority because it does not exploit changing social norms related to Indigenous rights and governance and therefore does not reduce the cost threshold for states, but any of the above combinations without A and/or B undermine the capacity of the community to push back against the state. If ABC undermines state authority, when viable governance alternatives (D) are added to the equation, at ABCD, Indigenous governments may accumulate authority.

When Indigenous nations enact laws and rules that contravene those of the state, we would expect the state to respond with a conflictual response and for the authority of the nation to decrease – and indeed, this is what we generally witness. When the state interprets a particularly acute threat from the actions of an Indigenous government or community, it tends to engage in conflictual and even violent action to coerce compliance. For instance, in late 2019 and early 2020, members of the Wet’suwet’en Nation attempted to block a pipeline project on their traditional territories and several solidarity protests emerged that blocked train traffic across Canada. The Royal Canadian Mounted Police violently enforced injunctions against the protestors, leading to dozens of arrests and an ongoing police presence in the area. And yet, as I demonstrate, even when the state interprets a threat as high and responds with conflict, some nations have successfully corralled government into acquiescence.

The Canadian government does not prevent all Indigenous law-making. In 2021, Canada pledged $10 million (CAD) to support the study of Indigenous law initiatives. The government has transferred authority to specific Indigenous communities in areas such as fishing, justice, and education following specific agreements with communities. However, scholars of Indigenous politics and International Relations note that Canada tends to appear willing to progress on certain ‘lesser’ rights in order to deflect claims by Indigenous peoples for more meaningful autonomy that might trouble the grip of the sovereign state. ²¹ Additionally, while I argue that increases in Indigenous authority mean that the nation or community has progressed in its goals of achieving self-determination, some scholars demonstrate how outward increases in authority may come at the expense of Indigenous ways of knowing or further cooptation of the nation or community by the colonial state. ²² Moreover, agreements with government, while often appearing to entrench Indigenous self-determination, may more thoroughly entrench Indigenous peoples in state structures that, although they are populated by Indigenous peoples, operate with colonial principles and values. ²³

Methods

I focus my argument on Canada, because the Canadian context offers a particular insight into the ways in which Indigenous peoples push back against state authority and control. Canada was among the first states to extend constitutional protections to Indigenous peoples; yet Canada was one of the last to fully support the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Canadian government under Prime Minister Justin Trudeau has devoted considerable political capital to issues of Indigenous rights, yet few Indigenous scholars and activists argue that his government has realised their stated goals. Additionally, there is a popular discourse in Canada related to Indigenous self-determination, sovereignty, and nationhood that does not exist in other settler-colonial states that coincides with changing international norms related to Indigenous rights, including the promulgation of UNDRIP. ²⁴ These changes and their attendant obligations for the Canadian government have produced sites of political and territorial contestation, as well as a convoluted policy-making environment in which federal, provincial, and Indigenous governance structures collide. These are the conversations that Canadians are having and while these conversations are typically centred on rights, this research looks further to focus on the governance implications.

I engage in considerable content analysis, including reviews of court documents, Indigenous and mainstream media, Indigenous government webpages, Indigenous activists’ social media and podcasts, community newsletters and social media, Indigenous and government press releases, and federal and provincial government documents. In addition to analysing the publicly available interviews with current and past community leaders, in spring 2021 I participated in lengthy interviews with the leaders of the three communities that I include here, and for which I extend my sincere gratitude. In their own way, each of these leaders noted that their nations or communities were prepared to maintain their struggles with colonial governments for as long as necessary, that they were working hard to enhance governance capacity and ensure that their laws reflected local priorities better than colonial laws, that they fomented community cohesion through consultation and community engagement, and that they have enhanced their capacity to engage in public relations campaigns that speak to changing norms surrounding Indigenous rights.

In their work on herring governance in British Columbia, von der Porten et al. explain that they observed a shift in authority primarily in industry’s reaction to Indigenous assertion of self-determining authority and in the federal government’s decisions to cede some elements of resource governance to the Indigenous nations in question. ²⁵ I build on their framework by seeking observable elements in effects on authority through changes in Indigenous, industry, and government rhetoric and behaviour. Such changes include the willingness of the members of the nation or community to abide by their rules and laws, rather than colonial rules; the legal transfer of regulatory or law-making power to the Indigenous nation or community; the government backing down in its attempts to entrench its authority; Indigenous court victories, or industry abiding by Indigenous rules. Changes indicating a decrease of authority include the federal government taking over financial or other management operations, Indigenous court losses, violent police action, government and industry statements undermining self-determination, and Indigenous perceptions of government reneging on prior agreements.

The four conditions outlined below developed initially using an inductive process involving a database of all mining-based conflict in the Canadian provinces of Ontario, Saskatchewan, and British Columbia. Out of database of about 65 cases, most had engaged in some sort of institutional strategy as part of their efforts to assert their authority over their lands. This is particularly true in Ontario and British Columbia. Additionally, the three cases offer significant variation through which I explore whether additional factors such as geographic location, land claim status, community involvement in the resource extraction sector, or level of government affect the outcome. In British Columbia, the Tahltan Nation is a relatively powerful actor within the resource extraction sector, wielding far more power than most First Nations communities and very heavily engaged in the resource extraction sector. In Ontario, Kitchenuhmaykoosib Inninuwug appears to be a weaker player, preferring to engage far less in the resource extraction sector, but still managing to successfully prevent unwanted resource extraction on their lands.

From these 65 cases, the three cases were explored here were selected by a process inspired by a crucial case design by which I selected three most likely cases to explore the argument Levy explains, ‘the logic of the most likely case design is based on the inverse Sinatra inference – if I cannot make it there, I cannot make it anywhere’. ²⁶ By finding similar themes across these conditions, I propose that my insights may be transferrable to other states or regions in which state action is constrained by social norms related to the limits of the power of the state.

Community Profiles

When Indigenous nations enact strategies to realise their self-determination, the mechanism driving the subsequent state response follows the strategic analysis literature. Like other political actors, Indigenous governments and communities engage in cost-benefit analyses to realise their objectives vis- à -vis the state. This strategic interaction assumes that actors select strategies following an assessment of the priorities and possible responses of other actors. ²⁷ In the community profiles that follow, Indigenous leaders assessed the likely consequences of developing their own laws that conflict with those of the state. They make judgements about how the state will perceive what amounts to a threat against state control and power. The state counters with responses that are either conflictual or cooperative, as per the CAMEO dataset. In the cases of KIFN and the Tahltan Nation, initial state responses were conflictual, but they forced the state to eventually acquiesce. Thus, a pattern emerges in which the state initially attempts to exercise its authority, but eventually yields.

Kitchenuhmaykoosib Inninuwug First Nation

KIFN, in Ontario’s far northwest, has about 1025 people according to the 2016 census. They fall under Treaty 9, signed in 1905-06 and extended in 1929 between the Dominion of Canada and provincial governments and the Indigenous peoples of the area. KIFN is engaged in an ongoing dispute with the government over its treaty and has been particularly active asserting their self-determination, issuing a 2016 ‘Declaration of Sovereignty and Governance and Assertion of Inherent and Treaty Rights’, among other assertions.

The relationship between KIFN and other levels of government has, at times, been particularly acrimonious. Since the early 2000s, the province of Ontario has had to offer mining companies millions in payouts after KI blocked companies from exploring on their lands and also included promises to give communities a cut should a mine ever be built on KIFN’s territory. The most well-known story in the area relates to Platinex Inc. The case cost the province millions of dollars in legal and settlement fees and the First Nation considerable sums in legal fees. KIFN community members refused to allow Platinex’s work to proceed, leading Platinex to unsuccessfully sue the First Nation for $10 billion – the largest claim ever against a First Nation. ²⁸ After the courts issued an injunction against KIFN protestors, six community leaders, including Chief Donny Morris, were jailed for violating the injunction, and spent ten weeks in prison. In 2011, KIFN members discovered they were among eighteen Indigenous peoples the RCMP was monitoring under its ‘Aboriginal Joint Intelligence Group’. These conflicts left a bitter legacy that led the community’s government to attempt to entrench its claimed authority over its traditional lands. Moreover, mining companies remain frustrated with the Crown’s approach to Indigenous rights. In 2010, Jim Trusler, the CEO of Platinex, described his engagement with KIFN: ‘I almost thought we were in a Third World country’. ²⁹

Chief Donny Morris has stated that he and his community do not recognise Ontario’s policies and laws on their territory, explaining that the community has its own regulations. ³⁰ In 2011, KIFN again claimed jurisdiction over its traditional lands, forbidding the use of the community’s water for industrial purposes. ³¹ In a letter sent to De Beers, another company attempting to prospect on KIFN’s territory, Ontario’s premier, and Canada’s prime minister, the First Nation explained that they ‘will not and cannot consent to any mining exploration’, and asserted that it had absolute authority over developments on its territory, ³² indicating a moratorium on mining. This effectively forced the province to install its own moratorium on mining in the area. According to Chief Morris, KIFN want total control of their homelands to protect the land. For them, self-determination means ‘governing ourselves [and] not being dictated to by other levels of government’. ³³

In the case of KIFN, the First Nation established its own laws and rules related to mining on its territory. These rules were directly in tension with the rules of other levels of government, and after a protracted struggle, the Crown was forced to relent. Community members demonstrated that they were willing ‘to go all the way’ (i.e., to prison) to achieve control over their territory. ³⁴ The question here is why did the state, with dramatically more power than the First Nation, capitulate, thereby allowing the First Nation to accrue significant authority and jurisdiction over their territory. According to KIFN leadership, the pressure on the provincial government was too great for them to continue to oppose the First Nation. They ‘received support from everywhere, including other countries [and the] UN’. ³⁵ The arrests of the First Nations leadership received significant media attention, particularly in the context of the ‘Idle No More’ movement. ³⁶ The First Nation sees their legitimacy as a sovereign community as housed in their treaty. Thus, they are focused on demonstrating to federal and provincial levels of government that Crown interpretations of Treaty 9 are invalid. According to a 2014 Canadian Broadcasting Corporation interview with Morris, ‘. . .we just have to stick it out. The way we want to approach it is that we’re a sovereign community.’ ³⁷

Tahltan Nation

The Tahltan Nation in northwest British Columbia is in one of the most active mining areas in Canada. The Nation, which comprises the Tahltan and Iskut First Nations (two Indian Act bands), is governed by the Tahltan Central Government, in addition to their respective band councils. The Tahltan Central Government is guided by the Declaration of the Tahltan Tribe of 1910, which claims sovereignty over their lands. Their territory occupies about 11 percent of the province of British Columbia, an area larger than Portugal with a population of about 2800. ³⁸ They do not have a treaty with the Crown, a condition that dramatically alters the ways in which they negotiate with other levels of government.

The Tahltan Nation has a capacity to control the local resource industry that few levels of government have. The Tahltan have had their own guidelines that industry partners must meet since 1987, an important stipulation considering that more than 50 percent of mining in the province of British Columbia occurs on Tahltan territory. Three active mines operate in their territory and approximately 6.3% of all mining exploration activity in Canada occurs on their territory, with production values for active mines at approximately $817 million. ³⁹ Their financial largess, as well as entrenched rights to conduct land environmental and economic assessments in their territory, gives the Nation considerably more flexibility and clout than KIFN or Sipekne’katik. Moreover, this governance capacity begets further governance capacity as the Nation’s institutional structures evolve.

Because the Tahltan Nation never signed a treaty with the Crown, the state cannot claim that it ceded its territory. They remain committed to their 1910 Declaration of the Tahltan Tribe, which asserts their sovereignty over their lands and that only the Tahltan people can make decisions about their lands. In 1987, the Tahltan Tribal Council (now Tahltan Central Government) released a resource development policy statement that demanded that resource developers abide by specific protocols and principles related to the environment, Aboriginal title, socioeconomic impacts, substantial equity participation, and other financial and capacity-building supports. ⁴⁰ These principles were designed to help the Nation realise significant financial benefits from resource development in their territory and guided the community as they became increasingly involved in mining during the 1990s. This economic capacity remains a priority of the Nation ⁴¹ and they continue to encourage government recognition of their policy and other contemporary protocols such as their land stewardship plan and environmental assessment rules.

When the province fails to respect Tahltan jurisdiction, the communities in the Nation engage in strong collective active action to enforce their laws. The Tahltan have employed blockades and other protests relatively effectively. In 2012, Shell pulled out of a coal-bed methane project following opposition from the Tahltan and other concerned groups. The provincial government was forced to provide Shell Canada with $20 million in royalty credits in exchange for relinquishing its rights to the coal-bed. In 2014, the Tahltan evicted Fortune Minerals from their lands regarding a dispute over the Arctos Anthracite coal project, despite an agreement that was signed between the two parties in 2009.

The Tahltan Nation has established the precedent of requiring social licence to work on their lands and they are firm that work that does not align with their priorities and principles will not proceed. They assert their authority in their dealings with both the province and industry, but also in taking advantage of changing norms surrounding Indigenous rights. With the province, they have the experience to know how to leverage their relationship. According to Tahltan Central Government President Chad Norman Day, the province knows that they are on shaky jurisdictional grounds and that Tahltan consent is required – particularly in the context of changing norms related to UNDRIP. In their dealings with industry, the Nation is skilled at manipulating investment structures to ensure that projects without their consent ‘won’t ever pay off [and by] bleeding them dry’. ⁴² Additionally, through their well-established communications bureaucracy, the Nation ensures that proponents clearly understand any problems with projects, which tends to facilitate negotiations.

For Day, self-determination means ensuring that the structures are in place to engage in co-management with other levels of government. Day emphasises that this part of a process by which as they mature, they will eventually be able to manage their own affairs. They take pride in making their own decisions and are engaged in a reiterative process to establish those institutions. As they grow their internal capacity, they have also worked to ensure ‘internal reconciliation’. Day emphasised the need to ensure that ‘community continuity’ prior to asserting jurisdiction. ⁴³ Thus, their Nation articulates their self-determination as rooted in internal conviviality, bolstered by a long-term vision that is punctuated by reiterative and self-supporting governance practices that build institutional capacity and take advantage of changing norms regarding Indigenous rights through public relations and media campaigns.

Sipekne’katik First Nation

Local activists emphasise that the Sipekne’katik First Nation ‘has a long history of resistance’. ⁴⁴ In September 2020, the First Nation opened a self-regulated lobster fishery outside the commercial season that is regulated by the Canadian government. Almost immediately, Indigenous fishers faced a backlash that was sometimes violent from non-Indigenous fishers fearful that the Indigenous fishery would deplete lobster stocks and otherwise reduce their profits. Moreover, the Canadian Department of Fisheries and Oceans (DFO) increased enforcement against the Indigenous fishers, including confiscating traps and equipment, and Canadian authorities refused to wholly intervene to prevent violence and the destruction of Indigenous catches. The Sipekne’katik leadership justify their fishery by pointing to a 1999 Canadian Supreme Court ruling that affirmed that the Mi’kmaq, an Indigenous nation in eastern Canada, has a constitutional right to seek a ‘moderate livelihood’ through fishing. The decision in R. v Marshall, affirmed that treaties between the Mi’kmaq, Maliseet, and Peskotomuhkati and the British Crown in 1760 and 1761, as well as the Canadian Constitution Act, 1982, gave these peoples the right to hunt, fish and gather in pursuit of a ‘moderate livelihood’ from the resources of the land and waters provided conservation-based regulations were met. In the decades since the court ruling, the Canadian government has not clarified what a ‘moderate livelihood’ entails, although it has spent substantial sums to transfer commercial fishing licences to Indigenous communities affected by the Marshall decision. Sipekne’katik’s self-regulated fishery responds to the perceived shortcomings in the Canadian government’s response that do not meet the needs of community, including the right to sell their catch. Despite the Marshall decision, it is still illegal for fishers to sell their catches if they were not caught with DFO licences. As part of their own sustainable fishery, the First Nation has established trade and transport regulations that correspond to the ruling in Marshall.

The leadership and community at Sipekne’katik opened the self-regulated fishery to force the Canadian government to clarify the meaning of ‘moderate livelihood’ – but also to assert their authority over their territory as part of a broader goal of self-determination. According to the First Nation’s website, they are focused on ‘removing barriers to local governance processes, strengthening band oversight and management, improving financial management and accountability as well as pursuing financially responsible economic opportunities for Sipekne’katik First Nation.’ ⁴⁵ They have even engaged with the United Nations to demand that Canada fulfil its obligations to Indigenous peoples, leading the Committee on the Elimination of Racial Discrimination to send Canada a letter with four demands, including that Canada ‘respect, protect, and guarantee the rights of Mi’kmaw peoples in relation to their fishing activities and territories’. ⁴⁶ In spring 2021, they also launched a lawsuit against the province of Nova Scotia attempting to overturn regulations that prevent the First Nation from selling their catch.

For Chief Michael (Mike) Sack, his primary priority for his community is straight-forward: survival. Echoing much of the International Relations literature on state survival, Sack stated that, ‘Self-determination is about survival. . .about being able to provide for themselves [and] ensure that their community and nation remains’. ⁴⁷ He states that his people need to govern themselves because only they know what they want and need. According to Sack, the structure of the DFO rules are such that employment opportunities for community members are overly restricted because Indigenous fishers do not have the necessary capital for the equipment required to receive DFO fish allocations. By asserting their own laws through a self-regulated fishery, they can offer fishing ‘tags’ to fishers even if they do not have the necessary capital - which few do. This provides obvious employment opportunities for community members, as well a clear incentive for Sipekne’katik’s people to abide by their laws, rather than those of the Government of Canada.

Much of the commentary coming from the First Nation centres on the relationship between self-sufficiency and self-determination. Sack states that ‘self-determination is about capacity-building. . .no one knows what we need except for us’; moreover, the First Nation resents that the Canadian government is ‘setting them up for failure’ by providing insufficient supports to build governance capacity. ⁴⁸ By building a self-regulated fishery and engaging in the fishing industry, they are both building the capacity of the community and providing for their people. Indeed, even members of the ruling government recognise that colonial structures limit opportunities to build governance capacity. Nova Scotia Liberal Member of Parliament Jamie Battiste, who is Mi’kmaw, stated that he hopes the government accedes to recommendations related to ‘. . .the ability to create the capacity to safely and without fear of harm, to be a part of a moderate livelihood fisheries that is transparent and accountable to all, including their community members’. ⁴⁹

By better representing local priorities, visibly increasing governance capacity, and rejecting ‘cookie-cutter’ approaches to governance, the First Nation has retrenched authority from other levels of government to enhance its own authority and therefore its self-determination. The governance structures of the community are such that consultation with community members is paramount, and there is a general recognition of the importance of consent-based decision-making, a process that has always been a part of Mi’kmaw traditions. Sack emphasises that his people do not trust the government, asking ‘how can you trust the government when they are trying to dissolve you?’ For the Sipekne’katik, the Mi’kmaw are ‘equal to other levels of government [and] they need to be the decision-makers on their territory.’ By presenting a viable alternative to colonial governance, the leadership of Sipekne’katik has begun to chip away at the authority of the government of Canada. Indeed, Sack states, ‘Rather than thinking that the First Nations haven’t been authorized to fish there, think about how Canada hasn’t been authorized to fish there. The commercial fishery is illegal’. As Sipekne’katik continues their struggle to establish their own fishery, they may choose to look to other Indigenous communities that have forced the government to cede its authority to the Nation.

Long-term Resolve, Internal Cohesion, New Norms, and Legitimacy

An exploration of both the Tahltan Nation and KIFN reveals that the four conditions outlined here were present and offer possible necessary conditions for First Nations to achieve a measure of success when fighting to control their lands and lives in the context of resource extraction. I then assessed my hypothesis via an examination of the Sipekne’katik First Nation in Nova Scotia. The variation between these cases suggests that the resource at the centre of the extraction conflict, the location of the Indigenous community within Canada, the type of relationship the Indigenous community has with government, and the level of government at the centre of the conflict are extraneous and that similar patterns can be seen across resource exploitation conflicts between Indigenous peoples and the state. What matters here is an Indigenous community pushing back against the state using a strategy that forces the state to realise the full extent of the costs it is prepared to incur. The following section better illustrates the four conditions that emerge.

Long-Term Engagement: Resolve

Firstly, nations must have the resources and willingness to engage in long-term conflict. These struggles are remarkably resource-intensive for communities that are often resource-scarce and consumed with more immediate quality-of-life issues than governance questions. However, the three communities described here have all demonstrated a willingness to engage in long-term negotiations with government – and to develop new opportunities to fund these challenges. Sometimes this means protracted court cases that last many decades, while in other cases it means, as Chief Morris stated, a willingness to ‘go all the way’. In Treaty 9 territory in northern Ontario, Indigenous leaders have expressed their willingness to give their lives to prevent infringement of their treaty rights. They also must be prepared for government threats to revoke funding and to navigate other difficult negotiations. For several years, KIFN has also been engaged in projects to articulate their oral traditions in ways that align the colonial expectations of Canadian institutions, via treaty affidavits and land use documentation as part of their campaign to control their lands.

The Tahltan Nation still looks to its 1910 declaration of sovereignty and has been developing its resource protocols since 1987. In several instances, they have prevented mining projects from moving forward, demanding that their rules and laws are followed. According to President Chad Norman Day, for decades they have established the governance structures to be partners with other levels of government, with the intention of moving from co-management to management. He emphasises that they take pride in making their own decisions.

Two months after the launch of their fishery, Sipekne’katik and a coalition of First Nations purchased 50 percent of Clearwater Foods, one of the largest commercial fishing operations in Canada. While Chief Sack emphasises that the Clearwater deal and the self-regulated fishery are two completely separate processes, he also acknowledges that the Clearwater deal offers capacity-building and further opportunities to ‘provide for [their] people’. ⁵⁰ This capacity-building and income stream will potentially allow the First Nation to invest in the kind of long-term project embarked upon by KIFN and the Tahltan Nation in their respective successful struggles to entrench their authority and force other levels of government to cede their authority. Sipekne’katik activists and leaders such as Cheryl Maloney have also used state violence in their campaigns against the state, attempting to get arrested in order to force court challenges. ⁵¹ Just as KIFN used their arrests to engender public support for the First Nation and have learned lessons about how to confront other levels of government, these communities have the fortitude to co-opt colonial governance structures and the power of the colonial state.

Internal Community Cohesion

These communities also have not allowed the state to foment internal division. The second pattern reflects the need to ensure strong internal cohesion throughout the process of pushing back against the state. The leadership structures of Indigenous communities across Canada still largely reflect colonial imposition, often leading to conflict with traditional or hereditary leadership. Each of the three leaders discussed their commitment to ensure that their laws reflect community priorities. President of the Tahltan Central Government, Chad Norman Day unequivocally stated that communities require ‘internal reconciliation’ before taking on the state. For Day, communities must avoid arguing amongst themselves and must have processes in place to make decisions for themselves. ⁵² A similar emphasis on community consensus appears in KIFN’s consultation protocol and was expressed by Chief Donny Morris and leader Samuel McKay, who both highlighted the need for community consultation. In essence, for McKay, ‘it’s the people who will decide [since it is] all part of their own government’. ⁵³ This ongoing community consultation and desire to ensure internal community cohesion is also reflected in Sipekne’katik. Sipekne’katik also appears to have strong internal cohesion as community members continue to demonstrate their willingness to abide by their laws rather than colonial laws. ⁵⁴ Activist and scholar Cheryl Maloney labels the self-regulated a fishery a process by which the First Nation is ‘taking back [their] power in so many ways‘. ⁵⁵ Additionally, communities may coalesce following the state’s conflictual response. The arrest of the KIFN leadership united the community around the First Nation and strengthened members’ resolve.

Exploiting Changing Norms

Thirdly, these communities know how to engender support from outside of the community and to take advantage of changing norms surrounding Indigenous rights, particularly following Canada’s much-delayed ratification of the UNDRIP. Scholarship on norm cascade demonstrates how norms related to rights gradually infiltrate consciousness, and this is the experience of the three communities profiled here. Chief Morris spoke about KIFN’s non-violent public relations campaign and their successful attempts to influence non-Indigenous peoples as they fought the province of Ontario. Indeed, he argues that they achieved the moratorium because they were ‘picking up momentum [and] received support from everywhere, including other states’. ⁵⁶ The pressure that was placed on the government, particularly as the Idle No More movement engaged in a year-long campaign that served to, among other successes, alert Canadians of Indigenous rights – their inherent rights as the original peoples of the land, their constitutional rights in Canada, and their rights under international law. Tahltan President Day echoed this awareness, explaining that in their negotiations with British Columbia, the province has known that they are ‘on shaky jurisdictional grounds.’ He emphasized that UNDRIP demands that Indigenous peoples give their consent prior to a project progressing. ⁵⁷

In spring 2021 Sipekne’katik announced that they would draw on UNDRIP and other UN conventions and commitments to request UN Peacekeepers’ intervention in the fishery dispute. While it is extremely unlikely, the request generated considerable international publicity and severed to generate momentum for Sipekne’katik’s cause. ⁵⁸ That said, among the challenges with which Sipekne’katik must contend is animosity and bellicosity from some surrounding non-Indigenous fishing communities, including arson charges related to a fire that destroyed a fish plant used by Mi’kmaw fishers. By allowing the conflict to fester, the state is fomenting divisions between Indigenous and non-Indigenous communities, many of whom contest Mi’kmaw rights to fish outside of the state-mandated lobster season. This conflict persists despite experts who claim that conservation of fish stocks is a not a concern emanating from the fishery. ⁵⁹

Viable Alternative Governance

While the three conditions listed above are necessary factors to undermine the state, when Indigenous nations and governments can offer viable governance alternatives to those of the colonial state that better respond to their community members, Indigenous peoples can accrue authority. By establishing Indigenous laws and regulations not only do they undermine colonial authority, but they also can ensure that their local needs are met in a way that the state cannot. Refusing to comply with the state’s rules undermines state authority, but also develops a new and more robust social contract between people and leadership. Moreover, when the state is unable to coerce compliance, they cede legitimacy to Indigenous leadership.

Each of the communities above have presented viable governance alternatives to colonial administration that better align with their priorities and preferences. Each leader with whom I spoke emphasised that only they can know what is best for them. KIFN has developed resource protocols designed to protect their lands and waters but is also negotiating with other levels of government to take over the administration of other mandates, such as child and family law. Between 2008 and 2018, the community drafted a Declaration of Sovereignty, a Governance Framework, a Watershed Declaration and a Consultation Protocol, amongst other ‘operational documents’ describing their Indigenous legal order. ⁶⁰

The Tahltan Nation is focused on ensuring that they receive their fair share from mining companies on their lands and has developed a detailed consultation and communication bureaucracy to respond to those needs. Their 1910 declaration of sovereignty and control over lives and lands guides this law-making process. As Day states, they ‘take pride in making their own decisions’ to ensure that there is partnership in place between the Nation and other levels of government. He emphasises that he is engaged in a reiterative process to ready his community to be able to govern themselves. ⁶¹ Moreover, their resource extraction rules and regulations are so evolved that it is clear to mining proponents that they must receive social licence from the Nation before a mining project might begin. Day confirms, ‘these are Tahltan lands and they should get Indigenous consent’. ⁶²

Sipekne’katik has developed a fishing industry independent from that of the state. Chief Sack argues that Canada, rather than the First Nation is not authorised to fish in those waters, calling the commercial fishery – not their fishery – illegal. ⁶³ For Sack, the Mi’kmaq of Nova Scotia are equal to other levels of government and must be the decision-makers on their territory. He emphasises that ‘people need to be able to govern [themselves] because [they] know what [they] want and need’. ⁶⁴ Their fishery allows them to offer employment opportunities to their peoples and ensures that they can enjoy their right to make a livelihood from the fishing industry in a way that the state does not.

These community leaders couched their objectives in the language of self-determination, control, authority, and self-sufficiency. Moreover, by investing in these governance initiatives, they are enhancing their governance capacity and experience more broadly, as these governance structures mature and evolve. As the community expands its governance capacity, it readies itself to further absorb governing processes and decision-making. Each leader also emphasised that their leadership is contingent on the assent of their members, recognising that no law, rule, or regulation should evolve without the consent of community members. As such, these local rules and regulations accrue legitimacy that the state can never offer. Furthermore, these Indigenous laws – and often the state’s response to Indigenous law-making – demonstrate the ways in which the state undermines its own rules and policies. A common tactic in civil rights movements is to force the state to reveal its contradictions and hypocrisy, and these communities have become adept at these practices. By demonstrating that the state ignores its own laws, Indigenous governance structures accrue further legitimacy.

While actors with authority can co-exist, as Hurd argues, when the state loses its authority vis-à-vis First Nations and can no longer compel compliance, and when the rules of the First Nation are accepted as legitimate by the community, the First Nation can thereby accumulate authority. If legitimacy is necessary for authority absent violence, by responding to community needs and offering services to the population, the First Nation occupies the authority lost by the state. This finding reflects other work on non-state actors that argues that ‘authority is tied to the provision of substantial services to the population’. ⁶⁵ Clearly, the state recognises this relationship as threatening and is eager to quell such changes.

The Transformative Effects of Indigenous Politics

The arguments articulated here apply to states in which authority is maintained primarily through legitimacy, rather than coercion and depends on states in which social norms limit or constrain state action. While these findings focus on Canada, my argument and the conditions presented therein may be extended to places in which authority and legitimacy are yoked by democratic convention. Experiences with coloniality remain one of the key characteristics of Indigeneity and the tensions that I have described between Indigenous peoples and the state exist globally, and yet, internationally Indigenous peoples are establishing political space for themselves in tandem with and in place of the state. Additional instances where the conditions outlined here might prove applicable include the ‘multistate nations’ of the Inuit and Sami across the Arctic Circle ⁶⁶ or Maori assertions of tino rangatiratanga (chieftainship), and can best be translated as ‘sovereignty’ over Aotearoa (New Zealand). ⁶⁷ These tensions extend all over the world, where Indigenous politics is driving transformational and revolutionary change in the theory and practice of International Relations.

Given the formidable and relative power of the state, International Relations scholarship would have us expect that Indigenous actors would have little power or agency; yet Indigenous politics demonstrates that transforming sovereignty to reconcile Indigenous self-determination within the state system is possible. We are amid what Sheryl Lightfoot calls ‘revolutionary transformation’ in the international system whereby Indigenous nations are asserting their political agency. This work demonstrates how Indigenous governments and communities have the power to disrupt colonial governance systems that fail to fully account for Indigenous political agency – either as a corollary to contemporary governance systems or in parallel to them. This work ultimately demonstrates that we cannot fully understand how International Relations can be studied or managed without recognising how the state and Indigenous peoples interact.

This work considers Indigenous peoples and politics both as inter-national relations and as part of the field of International Relations, with a view to questioning the boundaries often employed between the international and domestic realms. I offer insights on the contested governance and political legitimacy of Indigenous peoples within international relations by examining the interaction between Indigenous actors and other levels of government. By highlighting new sites of authority and resistance, this work underscores the transformative possibilities of Indigenous politics for inter-national relations and International Relations. This approach challenges state-centric assumptions in International Relations that are fundamentally related to how and which actors are considered relevant in global politics. I implicitly and explicitly reorganise hierarchies of power to provide a broader representation of whose actions affect political systems and outcomes. Ultimately, I seek to contribute to the reimagining of who counts in International Relations and global politics.